Theriault v. AH Robins Co., Inc. , 108 Idaho 303 ( 1985 )

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

Barbara 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 court 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:

“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. In addition, I.R.C.P. 9(b) requires that when a party is alleging fraud, the circumstances constituting the fraud must be stated with particularity.

Theriault has failed to produce any evidence of conduct by Robins designed to conceal facts in an effort to hinder her in prosecuting her claim; nor is there anything in the record to show that Robins concealed material facts or made false representations which lulled Theriault into inaction during the period in which she could have brought this lawsuit. We conclude that the evidence of fraudulent concealment, even when viewed in the light most favorable to appellant, was insufficient to establish a triable issue.

Theriault also- asserts that Robins should be equitably estopped from even raising the statute of limitations as a defense. The doctrine of equitable estoppel prevents a party from pleading and utilizing the statute of limitations as a bar, even though it has run. This Court has recognized that a party may be estopped from raising the statute of limitations as a defense. Twin Falls Clinic and Hospital Bldg. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982). The elements of equitable estoppel as set out in Hamill, supra, are:

“(1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth, (2) the party asserting estoppel did not know or could not discover the truth, (3) the false representation or concealment was made with the intent that it be relied upon and (4) the person to whom the representation was made or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice.” Id. at 22, 644 P.2d at 344.

A defendant will be estopped from raising the statute of limitations as a bar to plaintiffs action where defendant’s representations or conduct dissuaded the plaintiff from prosecuting his or her cause of action during the statutory period. Holmes v. Iwasa, 104 Idaho 179, 183, 657 P.2d 476, 480 (1983). See also, Twin Falls Hospital Bldg. v. Hamill, supra.

As we stated above, there is no evidence in the record to show that Robins concealed any material facts or made any false representations which lulled Theriault into inaction during the statutory period. Furthermore, there is no evidence before us to indicate that Theriault relied on any representations by Robins in waiting to file her action. As the record fails to disclose any evidence which would raise a material issue as to whether Robins should be es-topped from raising the statute of limitations, we are constrained to hold that this is an inappropriate case for applying the doctrine of estoppel.

Appellant cites the recent 9th Circuit decision in Allen v. A.H. Robins Co., Inc., 752 F.2d 1365 (1985) as support for her argument that summary judgment was inappropriate in the case at bar. In Allen, the 9th Circuit, applying Idaho law, held that summary judgment was inappropriate in a factual situation similar to the one at bar. Appellant, Sandy Allen, filed suit against A.H. Robins seeking damages for injuries that allegedly resulted from her use of the Daikon Shield. She alleged that Robins falsely represented facts about the Daikon Shield both to the medical profession and the public and that it knowingly concealed material facts concerning the safety of the Daikon Shield. The district court granted summary judgment in favor of Robins, holding that appellant’s action was barred under I.C. § 5-219(4). On appeal the 9th Circuit reversed, concluding appellant had succeeded in raising a material issue of fact, both as to the fraudulent concealment exception to I.C. § 5-219(4) and as to whether Robins should be equitably estopped from raising the statute of limitations as a defense, and, thus, that summary judgment was inappropriate.

Allen differs from the presént case in one crucial aspect, however. In Allen the appellant submitted depositions, interrogatories and documents prepared by Robins which tended to establish that Robins was aware of the problems associated with the Daikon Shield and that it concealed this information from the public.

“In support of their claims that Robins was aware of the dangers associated with the use of the Daikon Shield, the Allens submitted several documents, including both internal memoranda of the A.H. Robins Company and letters and publications intended for physicians and wholesale distributors of the product____ This information was not released to either the medical profession or to users of the Daikon Shield until 1974____ Most important, the Allens submitted evidence that Robins had significant information in its possession regarding the ‘wick effect’ created by the Daikon Shield — an effect that permits bacteria to enter sterile places, and that may lead to pelvic inflammatory disease and sterility.” Allen, supra, at 1367.

As we noted above, the record in the present case is devoid of any such documents.

Finally, Theriault asks this Court to engraft a discovery exception to the statute of limitations contained in I.C. § 5-219(4). She urges us to hold that a cause of action does not accrue under I.C. § 5-219(4) until the injured party discovers or should have discovered the facts giving rise to the cause of action. This we decline to do.

Prior to March 24, 1971, I.C. § 5-219(4) simply provided that an action for personal injuries had to be brought within two years. The statute contained no reference to the relationship between accrual of a cause of action and knowledge of the same. In 1964, this Court created a limited discovery exception in cases where a foreign object was negligently left in a patient’s body. Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964). We held that in such cases a cause of action did not accrue until the patient knew, or in the exercise of reasonable diligence should have known, of the presence of the foreign object. Id. at 498, 389 P.2d at 232. In 1969, we extended this exception to cover misdiagnosis cases; holding that the statute of limitations did not begin to run until the plaintiff knew or should have known of the misdiagnosis. Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969).

Then, in 1971, the legislature substantially amended I.C. § 5-219(4). The amendment narrowed the scope of the discovery exception, limiting it to cases involving foreign objects or fraudulent concealment. 1971 Idaho Sess.Laws ch. 180, pp. 845-47. In all other instances, the statute provided that “the cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of....” Our subsequent cases have recognized that the 1971 amendment was enacted in response to the Renner decision. See, e.g., Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476; Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978); Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1.

Since the 1971 amendment, in deference to the legislative policy expressed therein, this Court has consistently refused to create additional discovery exceptions. We are not persuaded that the facts of this case mandate an abandonment of this judicial deference.

The trial court concluded that July 31, 1978, the day appellant had the Daikon Shield removed, was the last possible day it could have caused damage to her, and, thus, that it was the last day on which the statute of limitations could have begun running. As Theriault did not file her complaint within two years of that date, and as the court found no facts in the record to raise a material issue of fraudulent concealment, it granted respondent’s motion for summary judgment. We affirm the grant of summary judgment on the basis that appellant’s claim was barred by the statute of limitations.

Costs to respondent.

SHEPARD, BAKES and HUNTLEY, JJ., concur.

1 . The form read as follows:

"Date 10/7/74

“I have been advised of the possilbe [sic] complications and health hazards associated with the Daikon Shield Intrauterine Device.

"I have also been advised that the family planning clinic can make arrangements for removal of my Daikon Shield.

"However, I do not wish to have my Daikon Shield removed at this time. I understand that I may contact the family planning clinic in the future if I wish to have it removed.

"Signed Annette Herbst date

"Witnessed Helen Stewart LPN & A.P. date”

2 . I.C. § 5-219 in pertinent part reads as follows:

"4. An action to recover damages for professional malpractice, or for an injury to the person, or for the death of one caused by the wrongful act or neglect of another, including any such action arising from breach of an implied warranty or implied covenant; provided, however, when the action is for damages arising out of the placement and inadvertent, accidental or unintentional leaving of any foreign object in the body of any person by reason of the professional malpractice of any hospital, physician or other person or institution practicing any of the healing arts or when the fact of damage has, for the purpose of escaping responsibility therefor, been fraudulently and knowingly concealed from the injured party by an alleged wrongdoer standing at the time of the wrongful act, negleet or breach in a professional or commercial relationship with the injured party, the same shall be deemed to accrue when the injured party knows or in the exercise of reasonable care should have been put on inquiry regarding the condition or matter complained of; but in all other actions, whether arising from professional malpractice or otherwise, the cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of, and the limitation period shall not be extended by reason of any continuing consequences or damages resulting therefrom or any continuing professional or commercial relationship between the injured party and the alleged wrongdoer, and, provided further, that an action within the foregoing foreign object or fraudulent concealment exceptions must be commenced within one (1) year following the date of accrual as aforesaid or two (2) years following the occurrence, act or omission complained of, whichever is later. The term ‘professional malpractice’ as used herein refers to wrongful acts or omissions in the performance of professional services by any person, firm, association, entity or corporation licensed to perform such services under the law of the state of Idaho. This subsection shall not affect the application of section 5-243, Idaho Code, except as to actions arising from professional malpractice. Neither shall this subsection be deemed or construed to amend, or repeal section 5-241, Idaho Code.”