Theriault v. AH Robins Co., Inc.

698 P.2d 365, 108 Idaho 303, 1985 Ida. LEXIS 448
CourtIdaho Supreme Court
DecidedApril 5, 1985
Docket15272
StatusPublished
Cited by58 cases

This text of 698 P.2d 365 (Theriault v. AH Robins Co., Inc.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Theriault v. AH Robins Co., Inc., 698 P.2d 365, 108 Idaho 303, 1985 Ida. LEXIS 448 (Idaho 1985).

Opinions

DONALDSON, Chief Justice.

Appellant, Annette Theriault, initiated this action seeking damages for personal injuries she allegedly received due to her use of an intrauterine device, commonly known as the Daikon Shield, manufactured and distributed by respondent, A.H. Robins Company. Theriault had a Daikon Shield inserted on March 11, 1974 at the Family Planning Clinic in Boise. Approximately seven months later, she signed a form, given to her by the clinic stating that she had been advised of the possible hazards associated with the use of the Daikon Shield and that she elected not to have it removed.1

[305]*305Barbara Ann Plain, a nurse practitioner at the clinic during the period Theriault was a patient there, testified in her deposition as to the reason for the consent form:

“In about the summer of 1974 it came to everyone’s attention that we were having some problems — women were dying in relationship when they had Daikon Shields with infectious process.
“And then it was about September— and I’m not sure of the dates, but it was about September that the Federal Drug Administration recommended that these devices could be left in place if the patient was not having any difficulties, that she should be informed that if she had any signs of infection or if she had really specifically a fever or pain or bleeding or if she became pregnant, that these should be removed.
“And all our patients that had a Daikon Shield were called in and we gave them all this information. And then they could decide whether or not they wanted to keep the IUD or whether they could have it removed.

“And that’s what this document is.” She further testified that patients with Daikon Shields were informed of the risk of infection and bleeding and of complications that could result should they become pregnant while using the Daikon Shield. As to infection, she stated that patients were told that serious complications could result if they got an infection while using the Daikon Shield.

Theriault stated in her deposition that she did remember signing the document. She further stated that she did not recall ever receiving any information about possible risks or complications associated with use of the Daikon Shield.

On June 6,1977, Theriault was diagnosed as suffering from Pelvic Inflammatory Disease. She was advised that, due to the infection, the Daikon Shield should be removed. It was not removed, however, and in July 1978, she again experienced pelvic problems. The Daikon Shield was removed on July 31, 1978.

On March 24, 1982, Theriault filed an action for damages against A.H. Robins. Robins asserted that the action was barred by the statute of limitations and moved for summary judgment. The trial judge determined that I.C. § 5-219(4) applied and granted Robins’ motion for summary judgment holding that Theriault’s action was barred by the two-year statute of limitations contained therein. Theriault appeals from that decision. She asserts that summary judgment was inappropriate as there existed a genuine issue of material fact as to whether Robins was guilty of fraudulent concealment. In addition, she asks this Court to adopt the discovery rule for determining the date of accrual in personal injury and professional malpractice actions.

I.C. § 5-219(4) sets forth a general two-year statute of limitations for personal injury actions. With the exception of cases involving a foreign object unintentionally left in the body or fraudulent concealment, the statute begins running at the “time of the occurrence, act or omission complained of____”2 In the present case, the trial [306]*306court concluded that the date on which the Daikon Shield was removéd, July 31, 1978, was the last possible date it could have caused injury to Theriault, and, thus, that it was also the last possible date on which the two-year statute of limitations could have begun running. Theriault asserts that her complaint comes within the statutory exception for fraudulent concealment and, therefore, that the statute did not begin to run until she knew or was charged with knowledge of her potential cause of action. She contends that she was not aware that her injuries were directly attributable to the Daikon Shield until she watched a “60-Minutes” program linking Pelvic Inflammatory Disease to the Daikon Shield in the spring of 1981. She asserts that the statute of limitations did not begin running until that point, and, thus, that her action was commenced within the statutory period.

This case is before us following a dismissal pursuant to Robins’ motion for summary judgment under the applicable statute of limitations. In Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972), this Court set forth the test for measuring the sufficiency of materials to overcome a motion for summary judgment based on the statute of limitations.

“Summary judgment is proper if the evidence before the court on the motion would warrant a directed verdict if the ease were to go to trial. When the moving party presents materials which would entitle him to a directed verdict if presented at trial, the responding party may not hold back his evidence; he must present sufficient materials to establish a triable issue. Those materials must set forth the facts with particularity; for if general averments were sufficient the summary judgment procedure would lose its utility. The requirement of specificity is underscored in cases where the moving defendant has established, prima facie, a defense grounded on the statute of limitations.” Id. at 598, 495 P.2d at 4 (emphasis added). See also, Cook v. Soltman, 96 Idaho 187, 189, 525 P.2d 969, 971 (1974).

Theriault alleges, in her amended complaint, that “Robins, at all times until date of this Amended Complaint, for purposes of escaping responsibility for negligence, gross negligence and damages has fraudulently and knowingly concealed information regarding the Daikon Shield Device from the plaintiff and the general public.” She contends that the allegations of fraudulent concealment in her complaint, unsupported by any affidavits or other evidentiary materials, are sufficient to raise a triable issue as to whether Robins was guilty of fraudulent concealment. However, as we have previously stated a party defending a motion for summary judgment may not rest on its pleadings, but must offer affidavits or other evidentiary materials which demonstrate that an issue of fact remains. First Piedmont Bank and Trust Company v. Doyle, 97 Idaho 700, 551 P.2d 1336 (1976). I.R.C.P. 56(e) states:

[307]*307“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

As we noted above, this requirement of specificity is underscored where, as here, the other party has established a prima facie defense on the statute of limitations.

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Cite This Page — Counsel Stack

Bluebook (online)
698 P.2d 365, 108 Idaho 303, 1985 Ida. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theriault-v-ah-robins-co-inc-idaho-1985.