Dugan v. Schering Corporation

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK DUGAN, as Representative of
the Estate of Kimberly DeWese
Dugan, deceased,
Plaintiff-Appellant,
No. 96-1955
v.

SCHERING CORPORATION; WHITE
LABORATORIES, INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-95-463-P)

Argued: March 3, 1997

Decided: April 21, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ronald R. Benjamin, LAW OFFICES OF RONALD R.
BENJAMIN, Binghampton, New York, for Appellant. Linda
Trummer-Napolitano, LAW OFFICES OF HENRY R. SIMON,
White Plains, New York, for Appellees. ON BRIEF: Robert B.
Newkirk, III, Charlotte, North Carolina, for Appellant. Erna A. Pat-
rick, WOMBLE, CARLYLE, SANDRIDGE & RICE, Winston-
Salem, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

I.

In 1955, Mark Dugan's future spouse, Kimberly DeWese Dugan,
was exposed in utero to the drug Dienestrol, a drug manufactured and
sold by Schering Corporation and through its wholly-owned subsid-
iary White Laboratories, Incorporated. In 1976, she was diagnosed
with clear cell carcinoma of the cervix. After surgery and treatment,
she was free of the disease for fourteen years. Unfortunately, Ms.
Dugan was diagnosed in April 1990 with a recurrence of the cancer.
The recurrence proved fatal and she died on January 14, 1991. Plain-
tiff alleges that the in utero exposure to Dienestrol caused Ms. Dugan
to develop cancer.

II.

On March 13, 1992, plaintiff filed an action against defendants in
New York. The parties filed cross-motions for summary judgment.
On September 21, 1993, a New York supreme court granted defen-
dants' motions for summary judgment. The New York court held that
plaintiff's complaint was barred by the applicable statutes of limita-
tions and repose and dismissed the action with prejudice. The court
reasoned that the action was time barred under the applicable limita-
tions laws of both New York and North Carolina.* On appeal, both
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*New York has a "borrowing statute," which bars an action that is
untimely under both the limitations period of the state where the cause

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the Appellate Division of the Fourth Judicial Department and the New
York Court of Appeals upheld the decision of the trial court.

Approximately one month after the final decision of the New York
Court of Appeals, the plaintiff filed a second action based on the same
claim, involving the same issues and parties, in the United States Dis-
trict Court for the Western District of North Carolina, Charlotte Divi-
sion. The defendants moved for summary judgment. On May 30,
1996, the district court granted defendants' motion for summary judg-
ment.

III.

Summary judgment is appropriate when there is no genuine issue
of material fact to be decided by the trier of fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 115 S. Ct.
67 (1994). Any disputed fact of disagreement in the evidence must be
construed in the light most favorable to the non-moving party. United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962). We review a district
court's grant of summary judgment de novo. See Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).

Federal courts are required to give a judgment of the rendering
court the same full faith and credit as that judgment would have in the
rendering state. Specifically, 28 U.S.C. § 1738 provides that "[a]cts,
records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the
United States and its Territories and Possessions as they have by law
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of action accrued and New York state. See N.Y. Civ. Prac. L. & R. § 202
(McKinney 1990). Section 202 provides that:

An action based upon a cause of action accruing without the
state cannot be commenced after the expiration of the time lim-
ited by the laws of either the state or the place without the state
where the cause of action accrued, except that where the cause
of action accrued in favor of a resident of the state the time lim-
ited by the laws of the state shall apply.

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or usage in the courts of such State, Territory or Possession from
which they are taken."

New York "treats a dismissal on statute of limitations grounds as
a final judgment on the merits for res judicata purposes." Bray v. New
York Life Ins., 851 F.2d 60, 64 (2d Cir. 1988). Therefore, the district
court properly applied section 1738 and New York law when it
granted defendants' motion for summary judgment.

Accordingly, we affirm on the reasoning of the district court.

AFFIRMED

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