Bullard v. Dalkon Shield Trust

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SANDRA D. BULLARD,
Plaintiff-Appellant,

and

ARTHUR L. BULLARD,
Plaintiff,

v.

DALKON SHIELD CLAIMANTS TRUST,
Defendant-Appellee,
No. 94-1364
and

FREDERICK A. CLARK, JR., M.D.;
HUGH J. DAVIS, JR., M.D.; A. H.
ROBINS COMPANY,
Defendants.

NORTH CAROLINA ACADEMY OF TRIAL
LAWYERS,
Amicus Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-92-882-B)

Argued: November 2, 1994

Decided: February 2, 1996

Before RUSSELL and WIDENER, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Judge Russell and Senior Judge Chapman
joined.

_________________________________________________________________

COUNSEL

ARGUED: Ralph James Lore, LORE & MCCLEAREN, Raleigh,
North Carolina, for Appellant. Richard Matthew Barnes, GOODELL,
DEVRIES, LEECH & GRAY, Baltimore, Maryland, for Appellee.
ON BRIEF: Charles P. Goodell, Jr., Richard L. Ames-Ledbetter,
GOODELL, DEVRIES, LEECH & GRAY, Baltimore, Maryland, for
Appellee.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

The plaintiff, Mrs. Bullard, appeals the order of the district court
granting summary judgment for the defendant, the Dalkon Shield
Claimants Trust, on the finding that her personal injury claim is
untimely under the North Carolina statute of repose, N.C. Gen. Stat.
§ 1-50(6). The question before this court is whether, under North Car-
olina law, the disease exception to the statute encompasses the plain-
tiff's claim of pelvic inflammatory disease.1 We conclude that the
North Carolina Supreme Court would find that pelvic inflammatory
disease is a disease and that that statute of repose does not apply to
bar the plaintiff's claim. The order of the district court is vacated and
the case is remanded for further proceedings.

I

On January 11, 1972 Mrs. Bullard underwent insertion of a Dalkon
Shield intrauterine device (IUD) by her local physician in North Caro-
_________________________________________________________________
1 Pelvic inflammatory disease is referred to throughout this opinion.
Those references include all the ills associated therewith, including infer-
tility.

2
lina. On June 28, 1973, the device was found to be imbedded in her
uterus, but was not removed at that time. In April 1974 Mrs. Bullard
was treated for pelvic inflammatory disease and uncontrolled bleed-
ing, and she was admitted to the hospital for surgical removal of the
IUD. Over three years later, on August 29, 1977, Mrs. Bullard under-
went an exploratory laparotomy for persistent lower abdominal pain
and abnormal spotting between menstrual periods. She was diagnosed
at that time to have adhesions of the fallopian tube and ovary caused
by old chronic pelvic inflammatory disease and an ectopic pregnancy
which required a right salpingectomy (removal of the right fallopian
tube). Mrs. Bullard has been unable to conceive since that time.

Mrs. Bullard asserts, and the Trust concedes (A. 78), that she did
not discover the possible connection between her use of the IUD and
her injuries until December 1984 when she read an advertisement in
the newspaper for legal services related to injuries from the Dalkon
Shield. On May 2, 1985, she filed suit in a Maryland state court
against the manufacturer, A.H. Robins Company, Hugh J. Davis,
M.D., the inventor, and others for damages for infertility secondary
to pelvic inflammatory disease. Mrs. Bullard's theories of recovery
were negligence, strict liability, fraudulent misrepresentation, and
conspiracy to commit fraud. Thereafter, in the course of bankruptcy
proceedings by A.H. Robins Company, the Dalkon Shield Claimants
Trust (Trust) was created and substituted for all named defendants.
Subsequently, the action was removed on motion by the Trust to the
United States District Court for the District of Maryland. Sitting in
diversity, the district court determined that Maryland applies the rule
of lex loci delicti for tort actions. It found that neither party disputed
that the IUD at issue was inserted in North Carolina and that all inju-
ries claimed by the plaintiff occurred in North Carolina. The district
court then determined that N.C. Gen. Stat. § 1-50(6), a substantive
statute of repose,2 barred the claims. In an opinion and order entered
February 16, 1994, the district court granted summary judgment in
favor of the Trust. Bullard v. Dalkon Shield Claimants Trust, 845 F.
Supp. 328 (D. Md. 1994). This appeal followed.
_________________________________________________________________

2 See Bolick v. American Barmag Corp., 293 S.E.2d 415 (N.C. 1982).

3
II

Mrs. Bullard contends that the district court erred in determining
that N.C. Gen. Stat. § 1-50(6) applied as a substantive bar to her claim
because her injuries are within a disease exception to the statute.3 The
Trust's position, and that adopted by the district court, is that the sub-
stantive N.C. Gen. Stat. § 1-50(6) applies to this product-related
claim, except for a narrow exception which they argue applies to only
"occupational diseases that share the attributes of long manifestation
periods and difficulty in determining the time of exposure". 845 F.
Supp. at 334. We review the district court's grant of summary judg-
ment in favor of the Trust de novo, with the facts considered in the
light most favorable to the non-moving party, Mrs. Bullard. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

A

In deciding the question of application of N.C. Gen. Stat. § 1-50(6)
or N.C. Gen. Stat. § 1-15(b) (repealed and replaced by § 1-50(6)
(effective October 1, 1979) to pelvic inflammatory disease, we look
to relevant interpretations by the North Carolina Supreme Court. Hyer
v. Pittsburg Corning Corp., 790 F.2d 30 (4th Cir. 1986). Both parties
rely on Wilder v. Amatex Corp., 336 S.E.2d 66 (N.C. 1985), a case
decided under § 1-15(b).4Wilder involved a plaintiff who was
exposed to asbestos in his job of installing insulation from 1939 to
1979. Although Wilder experienced some shortness of breath begin-
ning in the late 1960's, he was not diagnosed to have asbestosis until
1979. He filed his complaint for damages against several manufactur-
ers of insulation containing asbestos in 1981 in a state court. The trial
court granted the manufacturers' motions for summary judgment
_________________________________________________________________
3 N.C. Gen. Stat. § 1-50(6) states:

No action for the recovery of damages for personal injury,
death or damage to property based upon or arising out of any
alleged defect or any failure in relation to a product shall be
brought more than six years after the date of initial purchase for
use or consumption.
4 The exception to N.C. Gen. Stat.§ 1-15(b) recognized in Wilder
applies equally to N.C. Gen. Stat. § 1-50(6). Hyer v. Pittsburgh Corning
Corp., 790 F.2d 30, 33-34 (4th Cir. 1986).

4
based on a finding that N.C. Gen. Stat. § 1-15(b) barred the claim.
The North Carolina Supreme Court reversed, concluding that that
statute of repose did not apply to claims arising from disease. 336
S.E.2d at 67, 73.

In determining the application of § 1-15(b) to asbestosis claims, the
court reviewed the long-established rule of law in North Carolina that
a claim accrues when the injury to the claimant first occurs, rather
than when the claimant discovers the injury. The court then deter-
mined that the purpose of the statute at issue was to enlarge, not
restrict, the time within which an action could be brought, subject to
an outer limitation period of ten years from the last act of the defen-
dant. After reviewing the plain language and intent of N.C. Gen. Stat.
§ 1-15(b), the Wilder court found that the legislature never intended
the statute to apply to claims arising out of a disease:

The legislature . . . was reacting to the law of Jewell, Motor
Lines, Shearin, and Lewis which permitted latent, undiscov-
ered, first injury to cause the statute of limitations to begin
running. In a disease claim, as we have demonstrated, the
diagnosed disease is the first injury. A manifested, diag-
nosed disease is not latent. There was, therefore, no need for
a statute changing the accrual date for disease claims, and
the statute by its terms does not purport to do so. The only
need was for a statute changing the accrual date for latent
injury claims such as those in Jewell, Motor Lines, Shearin
and Lewis, and the statute by its terms is directed to these
type claims.

336 S.E.2d 73. Emphasizing its earlier discussion in Raftery v. Con-
struction Co., 230 S.E.2d 405 (N.C. 1976), concerning the kinds of
cases subject to the outer limitation, the Wilder court determined that
"[n]one of the cases toward which the statute was directed involved
disease. They all involved situations in which it was possible to iden-
tify a single point in time when plaintiff was first injured."5 336
_________________________________________________________________
5 Shearin v. Lloyd, 98 S.E.2d 508 (N.C. 1957), was a malpractice action
in which the court held that the cause of action began to accrue for pur-
poses of the statute of limitations at the time of the negligent act, when

5
S.E.2d at 70. The Wilder court recognized that "[b]oth the Court and
the legislature have long been cognizant of the difference between
diseases on the one hand and other kinds of injury on the other from
the standpoint of identifying legally relevant time periods." 336
S.E.2d at 71.

We are of opinion that the district court erred in holding that the
Wilder exception is limited to a narrow range of occupational diseases
or only to those diseases affirmatively stated as exceptions in a case
such as Wilder. While Wilder does involve a disease contracted from
occupational exposure to asbestos, we find nothing in the language of
Wilder that would limit the disease exception. Rather, in its discussion
throughout and at the conclusion, the Wilder court states repeatedly
and without qualification or equivocation that the statute does not
apply to claims arising from disease.

We find nothing in Wilder that suggests that the North Carolina
Supreme Court would determine whether pelvic inflammatory disease
were included in the disease exception to the statute of repose based
on its status or lack of status as an occupational disease. And we note
that the North Carolina Supreme Court has stated unequivocally that
the statute has "no application to claims arising from disease." 336
S.E.2d at 67, 73.6
_________________________________________________________________

a sponge was left in the plaintiff's body at surgery, even though the
plaintiff was not aware of the sponge. Likewise, in Lewis v. Shaver, 73
S.E.2d 320 (N.C. 1952), the negligent act occurred at the time of the dis-
tinct act of unauthorized tying of the plaintiff's fallopian tubes, even
though the plaintiff did not discover the damage until much later. Motor
Lines v. General Motors Corp., 128 S.E.2d 413 (N.C. 1962), and Jewell
v. Price, 142 S.E.2d 1 (N.C. 1965), were claims in which the court held
that the injury occurred and the claim accrued at the time of the original
tortious act, when the latently defective product was sold and delivered,
not when the actual injury occurred some time later.

6 This result is consistent with our previous holdings regarding this
same statute of repose. See Hyer v. Pittsburgh Corning Corp., 790 F.2d
30 (4th Cir. 1986), where we concluded on the same reasoning that the
statute did not apply to the plaintiff's asbestos-related claim. See also
Burnette v. Nicolet, Inc., 818 F.2d 1098 (4th Cir. 1986); Guy v. E.I.

6
B

Turning to the question of whether pelvic inflammatory disease is
a disease within the meaning of the disease exception to the statute,
we find no North Carolina decision. But we think the analysis of the
North Carolina Supreme Court in Wilder is instructive:

A disease presents an intrinsically different kind of claim.
Diseases such as asbestosis, silicosis, and chronic obstruc-
tive lung disease normally develop over long periods of time
after multiple exposures to offending substances which are
thought to be causative agents. It is impossible to identify
any particular exposure as the "first injury." Indeed, one or
even multiple exposures to an offending substance in these
kinds of diseases may not constitute an injury. The first
identifiable injury occurs when the disease is diagnosed as
such, and at that time it is no longer latent.

336 S.E.2d at 70.

It is clear in Wilder that in determining a disease exception to the
statute, the court looks primarily to two characteristics: the difficulty
or impossibility of establishing the exact time the injury first occurs
or the disease process begins, and some period of time between first
exposure to the product and the discovery of the disease, so that the
harm caused by the product would not be readily apparent until the
disease is diagnosed as such. We do not agree with the district court's
reasoning that the disease exception recognized in Wilder "appl[ies]
solely to occupational disease." Indeed Wilder specifically states the
statute in question was enacted as a part of a statute to change the
accrual date for latent injury claims such as those in Jewell, Motor
Lines, Shearin and Lewis, 336 S.E. 2d at 70, 73, none of which cases
_________________________________________________________________
Dupont de Nemours & Co., 792 F.2d 457 (4th Cir. 1986) (chronic
obstructive lung disease resulting from exposure to diisocynate); Silver
v. Johns-Manville Corp., 789 F.2d 1078 (4th Cir. 1986). While these
cases involved asbestosis or chronic lung disease specifically mentioned
by the Wilder court, none of the cases limited the Wilder language or
holding to an occupational disease.

7
concerned an occupational disease. While it is true that certain occu-
pational diseases fall within the Wilder exception, it is not true that
the disease exception to the statute of repose recognized in Wilder is
confined solely to occupational diseases.

As might be supposed, there is precious little authority on this nar-
row question. That which has come to our attention, however, arises
from two States in the Seventh Circuit and from that court. The cases
are Hansen v. A. H. Robins Co., Inc., 335 N.W.2d 578 (Wis. 1983);
Hansen v. A. H. Robins Co., Inc., 715 F.2d 1265 (7th Cir. 1983);
Barnes v. A. H. Robins Co., Inc., 476 N.E.2d 84 (Ind. 1985); Covalt
v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989); and Avery v.
Mapco Products, Inc., 18 F.3d 448 (7th Cir. 1994).

The Hansen cases involve application of the Wisconsin statute of
limitations to an action resulting in pelvic inflammatory disease from
the insertion of a Dalkon Shield, facts not different in any significant
way from those of the case at hand. The district court in Wisconsin
had held the Wisconsin statute of limitations had run. On appeal, that
question, however, was referred by the Seventh Circuit to the
Supreme Court of Wisconsin for a decision "that directly addressed
when the statute of limitations begins to run in a disease situation."
715 F.2d at 1266. The question itself was quoted by the Wisconsin
Court and contained a description of the injury of the plaintiff as
"caused by a disease which may have been contracted as a result of
protracted exposure to a foreign substance." 335 N.W.2d at 579. So
the Seventh Circuit described pelvic inflammatory disease as a dis-
ease, and the Wisconsin Court answered the question by reference to
a disease. The Wisconsin Court answered that the discovery rule
applied when the negligence charged might cause an injury which is
initially latent. 335 N.W.2d at 580. Specifically, the Court held that
the claim should "accrue on the date the injury is discovered or with
reasonable diligence should be discovered, whichever occurs first."
335 N.W.2d at 583. The significance of those cases, of course, is that
pelvic inflammatory disease caused by the insertion of a Dalkon
Shield was held to be a disease. In neither Hansen case was a statute
of repose, as distinguished from a statute of limitation, involved.

The Barnes case arose in the state court in Indiana in the same
manner as had the Hanson case in Wisconsin, on a certified question

8
from the Seventh Circuit. It also involved a suit against Robins
involving pelvic inflammatory disease resulting from the insertion of
a Dalkon Shield. A part of the question certified from the Seventh
Circuit was predicated on "when the injury to the plaintiff is caused
by a disease which may have been contracted as a result of protracted
exposure to a foreign substance." 476 N.E.2d at 85. The Indiana Court
answered the question that in such a case, a discovery type rule
should be applied much the same as had the Court in Wisconsin. 476
N.E.2d at 87. The significant thing about Barnes is that both the Sev-
enth Circuit and Indiana Court decided the case on the basis that pel-
vic inflammatory disease is a disease, and, as the Hansen cases had
not, Barnes did not consider the application of a statute of repose as
distinguished from a statute of limitations. Barnes, however, was fol-
lowed by Covalt. Covalt was another case by way of reference from
the Seventh Circuit and presented "a circumstance where a worker is
diagnosed as having asbestosis more than ten (10) years after his last
exposure to asbestos in the workplace. The cause is not a workers
compensation action, but rather a product liability action against those
who are alleged to have supplied asbestos to the employer." Indiana
had a ten year statute of repose keyed to bringing the action "within
ten (10) years after the delivery of the product to the initial user or
customer." 543 N.E.2d at 383. The question certified by the Seventh
Circuit was whether suit might be brought "within two years after dis-
covering a disease and its cause, notwithstanding that the discovery
was made more than ten years after the last exposure to the product
that caused the disease." 543 N.E.2d at 384. The Indiana Court
answered the question in the affirmative: that the plaintiff could bring
suit within two years after discovering the disease and its cause,
although the discovery was made more than ten years after the last
exposure to the product. Not only is this holding of significance, but
the reasoning is particularly apt. The Court stated that:

This [answer] is consistent with our holding in Barnes and
is limited to cases, such as this one, where an injury to a
plaintiff is caused by a disease which may have been con-
tracted as a result of protracted exposure to a foreign sub-
stance. 543 N.E.2d at 384.

****

9
 As was the situation in Barnes this case involves a latent
disease which may have been contracted as a result of the
introduction of a foreign substance into a person's body. In
Barnes that foreign substance was the Dalkon shield intra-
uterine device manufactured by A.H. Robins, Co., Inc. In
the present case, the foreign substance is asbestos, a natu-
rally occurring substance that the defendants allegedly
mined and supplied to the plaintiff's employer in raw, chrys-
otile, fibrous form. In both cases, the foreign substance was
introduced into the plaintiff's body long before any injury
or resultant disease became manifest. Although it is true that
the plaintiff's cause of action did not accrue for purposes of
the two (2) year statute of limitations . . . until such time that
the plaintiff knew or should have discovered that he suffered
an injury or impingement, the fact remains that the injury
was inflicted, during the time of protracted exposure to an
inherently dangerous foreign substance. 543 N.E.2d at 384.

The significance of the Covalt case, of course, is that the Indiana
Court, in holding that asbestosis was subject to a discovery rule, and
that a statute of limitation applied rather than a statute of repose,
equated asbestosis to pelvic inflammatory disease from the use of a
Dalkon Shield in arriving at its conclusion. The Covalt case is not dif-
ferent in any significant particular from the case at hand, and no case
coming to a contrary conclusion has come to our attention. Finally,
in Avery v. Mapco Gas Products, Inc., 18 F.3d 448, 454, the Seventh
Circuit construed Covalt and Barnes as we have to this effect: " . . .
The Indiana Supreme Court has concluded that injuries attributed to
intrauterine devices and asbestos are not subject to the statute of
repose." Consistent with the literal language of the Wilder case, we
find those cases from the Seventh Circuit, Indiana and Wisconsin to
be persuasive.

We are thus of opinion that Mrs. Bullard's pelvic inflammatory
disease is within the disease exception recognized in Wilder and that
the North Carolina statute of repose, N.C. Gen. Stat. § 1-50(6), does
not apply in this case. We express no opinion as to whether or not any
other limitation of action may apply. The judgment of the district

10
court must be vacated and the case remanded for further proceedings
not inconsistent with this opinion.7

VACATED AND REMANDED
_________________________________________________________________
7 There is no dispute but that Mrs. Bullard's pelvic inflammatory dis-
ease fits within the Wilder definition as one which normally develops
over a long period of time after exposure to an offending substance.

11