Date: 05-06-2002

Case Style: Sherry Michals v. Baxter Healthcare Corporation and Baxter International, Inc.

Case Number: 00-6256

Judge: Clay

Court: United States Court of Appeals for the Sixth Circuit

Plaintiff's Attorney: Curt L. Sitlinger, SITLINGER, McGLINCY, STEINER, THEILER & KAREM, Louisville, Kentucky, for Appellant.

Defendant's Attorney: David L. Schrader, BROBECK, PHLEGER & HARRISON, Los Angeles, California, for Appellees

Description: Plaintiff, Sherry Michals, appeals from the district court's order granting summary judgment to Defendants Baxter Healthcare Corporation and Baxter International, Inc., on statute of limitations grounds, in this case wherein Plaintiff seeks damages for injuries she allegedly sustained as a result of breast implants manufactured by a corporation now owned by Defendants. This matter is in federal court based on diversity of citizenship, pursuant to 28 U.S.C. § 1332(a), and jurisdictional amount exceeding $75,000. For the reasons set forth below, we AFFIRM the district court's order.

Background

Procedural History

Plaintiff filed suit against Defendants on October 23, 1993, seeking damages for injuries she allegedly sustained as a result of silicone breast implants that she received in March of 1974, which were manufactured by Heyer-Schulte, a corporation now owned by Defendants. On June 8, 2000, Defendants filed a motion for summary judgment, claiming that Plaintiff's cause of action was time-barred under the one-year statute of limitations set forth in Kentucky Revised Statute 413.140. On August 23, 2000, the district court entered a memorandum opinion granting Defendants' motion for summary judgment, and on August 29, 2000, the district court entered its corresponding order dismissing Plaintiff's suit. This timely appeal ensued.

Facts

In March of 1974, Dr. Leonard Weiner surgically implanted Heyer-Schulte silicone breast implants in Plaintiff. Plaintiff elected to have this surgery because her breasts had become quite enlarged when she was pregnant with her daughter, and her breasts remained large postpartum due to engorgement which caused a degradation of the contour and support of her breasts. In the two months following the surgery, Plaintiff saw Dr. Weiner three times for follow-up visits. Plaintiff did not see a physician again regarding her breast implants until March of 1976, when she saw Dr. Norman Cole. Plaintiff claims that she went to see Dr. Cole because her "breasts hurt and they were still hard and still red and they were immobile and [she] was getting red rashes across them." In an effort to soften Plaintiff's breasts, Dr. Cole performed a closed capsulotomy on Plaintiff that involved physical manipulation of her breasts in order to break the fibrous capsules. Although the capsulotomy was effective at first, Plaintiff's breasts eventually returned to the hardened state. At that point, Dr. Cole recommended that Plaintiff have the implants removed and replaced.

In March of 1977, Plaintiff underwent surgery to have the Heyer-Schulte implants replaced with Dow Corning implants. In January of 1979, the left implant was replaced with another Dow Corning implant; and, in September of 1992, Plaintiff had both implants removed and replaced with a pair of silicone implants manufactured by Mentor. During the 1992 surgery, the operating physician discovered that the previous silicone Dow implants had ruptured, and that silicone had escaped into Plaintiff's breast tissue. In March of 1993, Plaintiff underwent breast surgery again, at which time her Mentor implants were replaced with another set of Mentor implants. Finally, in March of 1994, Plaintiff had the Mentor silicone implants replaced with saline implants manufactured by McGhan.

Plaintiff claims that as a result of the silicone implants rupturing, she now experiences migraine headaches; arthralgia; symptoms of lupus, although tests come back negative for this disease; arthritis; autoimmune thyroiditis; irritable bowel syndrome; rashes; muscles and joint pain; leg swelling; sensitivity to the sun; and loss of hair. Plaintiff claims that during the time that she had the Heyer-Schulte implants, she experienced migraine headaches, rashes, and possibly leg swelling.

Plaintiff had filed the instant suit against Defendants and Dow Corning on October 22, 1993, claiming the breast implants manufactured by Defendants and Dow Corning were the proximate cause of injuries from which she suffered, and she sought damages for these injuries under twenty-eight theories including strict liability, negligence, failure to warn, and breach of express and implied warranties.

In October of 1996, Plaintiff received a Notification of Status letter regarding the settlement of a class action lawsuit filed against Defendants. Plaintiff opted out of the settlement class by signing the opt-out form so indicating on October 17, 1996. The opt-out form contained the following language:

NOTE: The running of any applicable statutes of limitation or repose with respect to the claims against person and entities named as released parties in the original global settlement - except Dow Corning, Mentor, and Bioplasty - will resume 6 months after the date this form is received in the claims office.

(J.A. at 80.) Plaintiff's signed opt-out form was mailed to the claims office on November 21, 1996. Plaintiff added a products liability claim to her October 22, 1993 complaint on October 23, 1996.

* * *

Defendants argue that the district court properly dismissed Plaintiff's claims as time-barred inasmuch as Kentucky's one-year statute of limitations bars Plaintiff's personal injury action. Defendants contend that Plaintiff's claims began to accrue on March 9, 1977, when she had the Heyer-Schulte implants removed and replaced with Dow Corning implants, and because Plaintiff did not file suit until 1993 or 1996, her claims with respect to Defendants were well beyond the one-year limit.

Defendants further contend that Plaintiff's claims are not saved by the application of Kentucky's discovery rule. According to Defendants, under that rule, the statute of limitations still began to run on March 9, 1977, because that was the point at which Plaintiff should have reasonably known that the Heyer-Schulte implants caused her injury, even if she was not aware of the full extent of the injuries at that time. In other words, Defendants do not claim that the statute of limitations began to accrue immediately after she had the Heyer-Schulte implants on March 4, 1974; rather, Defendants argue that the point in time that it could be said that Plaintiff reasonably knew or "discovered" that the Heyer-Schulte implants caused her injuries was March 9, 1977, the date upon which she had the implants removed and replaced at the advice of her physician. In support of this contention, Defendants rely upon Plaintiff's testimony that she went to see Dr. Cole in March of 1976 because her "breasts hurt and they were still hard and still red and they were immobile and [she] was getting red rashes across them[,]" (J.A. at 231), and after Dr. Cole tried to correct the problems of which Plaintiff complained by performing capsulotomies, Plaintiff finally underwent surgery to have the Heyer-Schulte removed and replaced with Dow Corning implants on March 9, 1977. Therefore, according to Defendants, by March 9, 1977, Plaintiff knew of the injuries allegedly caused by the Heyer-Schulte implants - even if she was not fully aware of the extent of her injuries - such that Plaintiff's date of accrual for purposes of the statute of limitations was March 9, 1977, thereby making March 9, 1978 the last day of the statutory period.

Plaintiff responds by arguing that the date she reasonably became aware that her complaints were due to a defective product was in October of 1996 when she received the Notification of Status letter regarding the settlement of a class action lawsuit filed against Defendants. Plaintiff further argues that because the opt-out form provided that the applicable statute of limitations would "resume 6 months after the date [the] form was received in the claims office[,]" because Plaintiff's form was received in the claims office on November 21, 1996, and because she filed her products liability claim on October 23, 1996, she was well within the statue of limitations. Finally, Plaintiff argues that Defendants should not be allowed to assert the statute of limitations affirmative defense inasmuch as Defendants entered into the class action settlement thereby constituting an admission of fault; and, by opting out of the settlement agreement, the statute of limitations began a new. We disagree with Plaintiff's arguments.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: For the above-stated reasons, we AFFIRM the district court's order granting summary judgment to Defendants.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None