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Drazin v. Ortho Pharmaceutical Corp.

Decided: January 21, 1977.

SAUNDRA DRAZIN AND ROBERT DRAZIN, PLAINTIFFS,
v.
ORTHO PHARMACEUTICAL CORPORATION, A CORPORATION, AND WYETH LABORATORIES, A CORPORATION, DEFENDANTS



Selikoff, J.s.c.

Selikoff

[148 NJSuper Page 57] Plaintiff Saundra Drazin for some time used "Ortho-Novum," an oral contraceptive, which she

alleges was prescribed for her by one Dr. William Shanik. In May or June 1973, plaintiff discontinued using Ortho-Novum and under prescription by a Dr. Sophia Preikstas, began using a contraceptive known as "Orval." Apparently both drugs were distributed by their manufacturers with warnings concerning possible harmful side effects. Plaintiff alleges that neither doctor discussed any such possibility with her.

In December, 1973, while on vacation in Florida plaintiff suffered a numbness and a burning sensation in her left hand and arm. The condition was diagnosed as a "bruit," which was corrected by two operations involving a subclavian arterial bypass.

Plaintiff remained in Florida until about April, 1974, undergoing treatment and observation, and then returned to New Jersey. Aside from this four-month period, plaintiff was not otherwise treated for the condition. Plaintiff states that the incident manifested itself in pain to her hand and arm and that the pain has since subsided.

Plaintiff brought suit on January 27, 1975 against the two present defendants who are the respective manufacturers of "Ortho-Novum" and "Orval." The suit is predicated on the theories that the drugs were negligently manufactured and that defendants breached warranties for fitness for human consumption.

On August 23, 1976 Dr. William Shanik was deposed. He testified that he was aware that the drug might have side effects. He further testified in April 1973 that he was aware of the contents of the Physician's Desk Reference as it applied to "Ortho-Novum" and of the contents of any pamphlets that were distributed with "Ortho-Novum" at that time.

Plaintiff subsequently moved to amend her complaint to name Dr. Shanik and Dr. Preikstas. She alleges that at the time oral contraceptives were prescribed the doctors knew them to be potentially unsafe but failed to inform her of the risks involved. She insists that she was unaware of any possible cause of action against the doctors until Dr. Shanik's deposition.

The problem here is the statute of limitations. Plaintiff seeks to add new parties defendant more than two years after her injury. See N.J.S.A. 2A:14-2.

She cites several cases for the proposition that liberality is ordinarily exercised in granting leave to amend pleadings in order to effect a just resolution of each cause, and that in consonance with this philosophy pleadings may be amended even though an original action might be barred by the statute of limitations. Tackling v. Chrysler Corp. , 77 N.J. Super. 12, 16 (Law Div. 1962); John Hancock Mut. Life Ins. Co. v. Fiorilla , 83 N.J. Super. 151, 156 (Ch. Div. 1964); De Sisto v. Linden , 80 N.J. Super. 398, 404 (Law Div. 1963); Smith v. Thermo-Fax Corp. , 53 N.J. Super. 102, 105 (Law Div. 1958); Jersey City v. Hague , 18 N.J. 584, 602 (1955).

In all of these cases the amendments were permitted after the statute had run. The reasons expressed were essentially that the gist of the cause of action remained the same and no new party was sought to be added or , if a new party was sought to be added, that new party had actual notice of suit. (In both John Hancock and Smith, supra , the proposed new defendant had accepted service for the named original defendant).

Plaintiff wishes to assert an entirely new cause of action against entirely new defendants. Against the present defendants, she must establish negligent manufacture or that the drugs were unreasonably dangerous. Against the doctors she must establish the standard of care in the profession relating to the prescription of and treatment with oral contraceptives, and that the proposed defendants breached that standard. ...


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