On appeal from the Superior Court, Law Division, Middlesex County.
Pressler, Bilder and Skillman. The opinion of the court was delivered by Pressler, P.J.A.D.
This is a personal injury products liability case in which the trial judge, following a hearing held pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), concluded that plaintiff William Graves was not entitled to the benefit of the so-called discovery rule of accrual. He consequently granted the motion of defendant Church & Dwight Company, Inc., for summary judgment dismissing the complaint. Plaintiff appeals, and based on the trial judge's extensive factual findings, we reverse.
These are the facts which were either undisputed or found by the trial judge. In August 1979 plaintiff William Graves, a senior associate editor of National Geographic Magazine, was vacationing at his home in Martha's Vineyard with his wife Joyce Graves, who sues per quod. On August 22nd, several days after their arrival on the island and following an unexceptional day, Graves awoke sometime after midnight suffering from mild indigestion. He could not find the patent medicines he customarily used on such occasions, either Alka-Seltzer or Bisodol, and recalled that his mother had given him bicarbonate of soda when he was a child. There was a box of Arm and Hammer sodium bicarbonate in the kitchen. He put a small amount of the powder into a glass, filled the glass with water, and drank several swallows of the mixture. Before he could put the glass down, he was overcome by terrible pain and fell to the floor. He called to his wife for assistance. She summoned an ambulance, and he was taken to the Martha's Vineyard Hospital. The diagnosis made by the internist on duty, Dr. Thomas Taylor, was perforated viscus, i.e., a tear somewhere in the upper gastrointestinal tract. Dr. Taylor arranged for the hospital's general surgeon Dr. Charles Claydon to attend to Graves forthwith. Dr. Claydon confirmed the diagnosis, concluding that Graves had suffered a perforated stomach ulcer and deciding that immediate surgical repair was necessary to save his life. In performing the surgery he found a rent approximately six centimeters long from the gastroesophageal junction down the lesser curvature of the stomach, along with
massive contamination of the peritoneal cavity. Dr. Claydon was able to make the repair, and although Graves' post-operative course was complicated, he did recover and eventually returned home to Washington, D.C.
Dr. Claydon continued to believe that Graves's problem was a perforated ulcer although there were anatomical anomalies, namely, neither the size nor location of the rent was typical of a perforated ulcer, which is usually less than one centimeter in length and usually located at the bottom of the stomach in the area of the pyloric valve rather than at the top of the stomach. Moreover, he was unable actually to observe an ulcer. Nevertheless, he could not otherwise explain what had happened to Graves, assumed the correctness of the diagnosis, and placed him on an ulcer patient regimen. Thus, Graves, although never having previously suffered from an ulcer, stopped smoking, reduced his alcohol intake, followed a bland diet, and for six months took Tagamet, an antacid remedy. Between August 1979 and October 1983 Graves had a number of additional hospitalizations in Washington and Massachusetts for ventral hernia repair and subphrenic abscess, all related to the original surgery.
Starting with the original hospitalization, the records of all the hospitalizations noted the fact, supplied by plaintiff himself, that the onset of the disabling pain immediately followed ingestion of sodium bicarbonate. None of Graves' physicians, however, ever made a causal connection, although all of them knew that fact. Indeed, some of them, including Dr. Taylor, continued to believe as late as the date of this Lopez hearing that there was no causal connection. Plaintiff and his wife both denied having made a causal connection prior to October 1983, plaintiff testifying that he viewed the significance of the ingestion simply as being part of the chronology and believed that the relevance of the sodium bicarbonate was merely its inability to relieve what was happening to him internally.
In October 1983 Graves received a telephone call from his senior editor who told him to turn on his television set immediately since a man was being interviewed who had had the same problem Graves did. Although Graves missed the segment, he viewed it several days later at the television station. The program was about a man named Michael Webber who several years earlier, while a Virginia resident, had suffered a spontaneous stomach rupture immediately after taking sodium bicarbonate. The facts surrounding Webber's use of the sodium bicarbonate, its aftermath, and the medical and anatomical consequences were almost identical to Graves' own experience. It was also reported on the program that Webber had brought suit against defendant Church & Dwight, the New Jersey manufacturer of Arm and Hammer, which had been settled under undisclosed terms the previous summer. And finally, the program included a statement by one of Webber's expert witnesses, Dr. Edward Moore of the Medical College of Virginia, who believed the rupture had been caused by the sodium bicarbonate. He explained that the combination of sodium bicarbonate with the acid produced by the stomach forms carbon dioxide gas. It was his opinion that when the stomach is already distended by overeating, the "rapid release of gas in the stomach and an enormous rise in pressure" can cause the stomach to rupture. The program concluded by noting that since 1926 six or seven cases of spontaneous stomach rupture attributable to ingestion of sodium bicarbonate had been reported in the medical literature.
It is Graves' contention that it was his viewing of this program which led him to make a causal connection between sodium bicarbonate and his own medical catastrophe. After seeing the program he called Dr. Claydon, who then discussed the matter with Dr. Moore, who sent him a copy of his published paper on the Webber case. Dr. Claydon, for the first time since performing the original operation on Graves, came to believe that a causal connection between the rupture and sodium bicarbonate was probable. He so advised Graves, who then
communicated with Webber's attorney. This suit was then commenced on August 8, 1984, just two weeks short of the fifth anniversary of the occurrence and ten months ...