On appeal from Superior Court, Law Division, Monmouth County.
Seidman, Michels and Devine. The opinion of the court was delivered by Seidman, P.J.A.D.
[171 NJSuper Page 77] This appeal is from the dismissal of a medical malpractice complaint filed against two physicians. The dismissal, on the latters' separate motions, was based on a holding that plaintiffs were collaterally estopped from bringing the action by reason of a prior determination by Judge Selikoff in the Law Division that the claim was barred by the statute of limitations. Drazin v. Ortho Pharmaceutical Corp. , 148 N.J. Super. 56 (Law Div.1977).
Plaintiff Saundra Drazin instituted suit against two manufacturers of oral contraceptives in January 1975 to recover damages for an artery occlusion suffered by her in December 1973, allegedly as a result of her use of the contraceptives. Her husband joined per quod. The theory of the lawsuit was that the drugs were negligently manufactured and that the pharmaceutical companies breached warranties of fitness for human consumption. Mrs. Drazin alleged that sometime in 1961 her physician, Dr. William Shanik, prescribed an oral contraceptive manufactured by Ortho Pharmaceutical Corp. She alleged further that she used the drug until 1973, when she came under the care of Dr. Sophia Preikstas, who recommended a change to another oral contraceptive, a product of Wyeth Laboratories, Inc.
In September 1976 plaintiffs moved to amend the complaint to add the two physicians as defendants. They asserted that they became aware for the first time in August of that year through a deposition taken of Dr. Shanik that both he and Dr. Preikstas had known the oral contraceptives to be inherently dangerous, but had failed to inform Mrs. Drazin of the risks involved. They sought to assert against the physicians a cause of action for medical malpractice. The motion was denied "with prejudice" on the ground, as stated above, that the statute of limitations had run. Plaintiffs' subsequent motion to us for leave to appeal was also denied. On February 8, 1977 a new complaint was filed against the two physicians. Thereafter, plaintiffs reached a settlement with the pharmaceutical companies and that action was dismissed on March 8, 1978. Motions to dismiss the present complaint were then filed and the decisions adverse to plaintiffs led to this appeal.
Plaintiffs complain first of error in the denial of their motion for leave to amend the initial complaint. They assert that the issue of the statute of limitations is an affirmative defense which must be pleaded and, therefore, should not have been resolved by the trial judge on his own motion without a hearing. They argue further that in a medical malpractice case a cause of
action does not accrue and the statute of limitations does not begin to run prior to the "discovery of the causal relationship between the negligent treatment and the injury which ensues."
Clearly, plaintiffs are attempting to use this appeal as a means of reviewing the correctness of the trial judge's ruling in a separate, albeit related, lawsuit. Their position is that the issue can be raised here because they "never had the opportunity to present the Statute of Limitations question to the Appellate Division." They are mistaken in that respect, for when plaintiffs' claim against the pharmaceutical companies was settled and the action dismissed, Judge Selikoff's order was no longer interlocutory. It then became appealable as of right under R. 2:2-3. Plaintiffs' recourse should have been a timely appeal. But, without waiting for a final disposition of that lawsuit, plaintiffs chose instead to institute their separate action against the physicians who, in their answers, raised among other things the defense of the statute of limitations.
On the matter of collateral estoppel the sole argument advanced by plaintiffs is that the doctrine does not apply "where the initial decision upon which reliance was placed was in error." They "now seek to have the question decided of whether or not Judge Selikoff erred in the Drazin-v.-Ortho Supra. [ sic ] case." The contention is plainly circuitous and in essence is the same as that contained in their first point. Our concern is not the correctness of Judge Selikoff's determination; whether it was right or wrong substantively or procedurally was properly the subject matter of an appeal. It is, rather, whether plaintiffs are collaterally estopped from litigating the issue again through the filing of a new complaint.
Collateral estoppel is that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action involving a different claim or cause of action. State v. Gonzalez , 75 N.J. 181, 186 (1977). Although generally the prior action is between the same parties, it need
not be. In United Rental Equip. Co. v. Aetna Life & Cas. Ins. Co. , 74 N.J. 92, 101 (1977), the court quoted approvingly the proposition in Restatement 2d, Judgments , § 88 (Tent.Draft No. 2 (April 15, 1975)), that "[a] party precluded from relitigating an issue with an opposing party is also precluded from doing so with another person unless he lacked full and fair opportunity to litigate the issue in the ...