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December 30, 1974

Robert J. GOODMAN, Individually and as Executor of the Estate of Florence L. Goodman, Plaintiff,

Stern, District Judge.

The opinion of the court was delivered by: STERN

This is a diversity action. New Jersey resident Robert Goodman, as Executor of his wife's estate and individually, sues Mead Johnson & Co., a Delaware corporation, for injuries to Florence Goodman allegedly caused by defects in a product manufactured by the defendant.

 The factual matrix of the complaint reveals that Florence Goodman used an ethical drug, Oracon, *fn1" which was manufactured by the defendant. During her use of Oracon, she experienced a swelling of the leg, later diagnosed as thrombophlebitis, and a lump in the right breast, later diagnosed as cancer. Florence Goodman thereafter brought suit alleging: (1) that the defendant was negligent in publicly distributing its product without proper or adequate warning on the face of the product sold of the harmful side effects and contraindications; and (2) that the defendant breached its warranty of merchantability when it sold a defective product. After the institution of suit, Florence Goodman died and her husband, as Executor of her estate, was substituted in her place. *fn2" Robert Goodman, in his individual capacity, sues the defendant for damages per quod.

 The instant motion by defendant is for summary judgment premised upon the New Jersey State statutes of limitations, *fn3" which, in this diversity case, control. *fn4"

 The applicable statute of limitations on the negligence claims is embodied in N.J.S.A. 2A:14-2, which states:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

 The two-year limitation of N.J.S.A. 2A:14-2 is also applicable to plaintiff's claim of breach of the implied warranty of merchantability. Although breach of warranty claims sound in contract, the New Jersey courts have not applied the limitation of actions provision, N.J.S.A. 12A:2-725, which relates to breach of any contract for sale whenever damages are sought for personal injury. Instead, the New Jersey courts have construed the time limitations of N.J.S.A. 2A:14-2 to apply to all personal injury claims irrespective of whether they fall within the traditional classifications of tort or contract. *fn5" Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973).

 The original complaint was filed on February 25, 1971. Plaintiff's decedent used defendant's drug from April 4, 1967 to June 19, 1967. (Florence Goodman Dep., pp. 17, 21) Thus, this action was commenced more than three and one-half years after the last use of defendant's product.

 The law of New Jersey is clear:

. . . in an action for personal injuries, the two-year statute, computed from the date of occurrence of the injuries (or in some situations the date of their discovery), would govern, whether the causes of action were pleaded in tort (negligence) or for breach of warranty in connection with a sale of goods or for violation of contract. . . .

 Heavner v. Uniroyal, supra.

 Hence, if defendant's product caused injury to plaintiff's decedent, the injury occurred on or before June 19, 1967. Under the normal statute of limitations analysis, plaintiff, having commenced suit over three years after the accrual of the cause of action, would be barred from pursuing a remedy in court. However, the New Jersey courts have adopted the "Discovery Rule" as an exception to the mechanical application of the personal injury statute of limitations. This doctrine provides:

. . . in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by reason of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.
* * *
It may also be unjust, however, to compel a person to defend a law suit long after the alleged injury has occurred, when memories have faded, witnesses have died and evidence has been lost. After all, statutes of limitations are statutes of repose and the principal consideration underlying their enactment is one of fairness to the defendant. Developments in the Law-Statutes of Limitations, 63 Harv.L.Rev. 1177, 1185 (1950). So in each case the equitable claims of opposing parties must be ...

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