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Graves v. Church & Dwight Co.

Decided: June 1, 1989.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 225 N.J. Super. 49 (1988).

For affirmance -- Chief Justice Wilentz, and Justices O'Hern and Stein. For reversal -- Justice Clifford, Justice Pollock and Justice Garibaldi. O'Hern, J., concurring. Chief Justice Wilentz and Justice Stein join in this opinion. Clifford, J., dissenting. Pollock and Garibaldi, JJ., join in this opinion.

Per Curiam

The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.

O'HERN, J., concurring.

This appeal presents an essentially factual controversy about the application of the discovery rule. "The history and principles underlying the discovery rule have been examined by us on numerous occasions." Abboud v. Viscomi, 111 N.J. 56, 62 (1988); see Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 425-27 (1987). No further elaboration is needed.

Suffice it to say that the rule's "essential purpose * * * is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations." [ Vispisiano, supra, 107 N.J. ] at 426 Accordingly, the doctrine "postpon[es] the accrual of a cause of action" so long as a party reasonably is unaware either that he has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity. Id. at 426-27; accord Lynch v. Rubacky, 85 N.J. 65, 70 (1981); Lopez v. Swyer, [62 N.J. 267, 274 (1973)]. Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware "of that state of facts which may equate in law with a cause of action." Burd v. New Jersey Tel. Co., 76 N.J. 284, 291 (1978). [ Abboud v. Viscomi, supra, 111 N.J. at 62-63.]

The linchpin of the discovery rule is the unfairness of barring claims of unknowing parties. Statutes of limitations are primarily statutes of repose. They are designed to stimulate litigants to pursue their actions diligently.

They penalize dilatoriness and serve as measures of repose. * * * When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice

and the considerations of repose are in conflict and other factors may fairly be brought into play. [ Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973) (citation omitted).]

To reach a just accommodation of these considerations, courts have developed the so-called "discovery" principle adopted first in New Jersey in Fernandi v. Strully, 35 N.J. 434 (1961). All that we need determine in this case is whether the plaintiff, during the two years after the injury, reasonably was unaware that his internal injuries were due to the fault of the defendant's medicinal product.


We rely primarily on the facts set forth in the defendant's petition for certification, although there is little dispute about what happened.

On August 22, 1979, while vacationing at his summer home in Martha's Vineyard, Massachusetts, the plaintiff, William Graves, awoke sometime after midnight suffering from mild indigestion. (Joyce Graves also brings suit, but as her cause of action is dependent on her husband's, our references to "plaintiff" hereinafter will embrace both of their claims.) Mr. Graves could not find the over-the-counter medicines he customarily used for indigestion but remembered that as a child his mother had given him bicarbonate of soda. He walked from the bathroom into the kitchen and found the Arm & Hammer baking soda (also known as "bicarbonate of soda" or "sodium bicarbonate") in the kitchen cabinet. (We use "Arm & Hammer," the familiar trademark for the product, to refer to the corporate defendant, Church & Dwight Company, Inc.) Mr. Graves poured some baking soda into a glass, filled the glass with water, and drank several swallows. Even before he could put the glass down, he experienced terrible pain and collapsed to the floor. Plaintiff was rushed by ambulance to the Martha's Vineyard Hospital where he was diagnosed as having a perforated viscus, i.e., a tear in the upper gastrointestinal tract region. At first, Mrs. Graves questioned whether surgery

should be performed at the island hospital. However, at about 2:20 a.m., the attending surgeon informed her that her husband's condition was critical and that he would die before he could be taken elsewhere. Plaintiff underwent surgery. The attending surgeon, Doctor Claydon, had to open up plaintiff's stomach to find out the cause of his pain. He found a rent or tear in the upper part of plaintiff's stomach near his esophagus that measured two and one-half inches long. The stomach had been torn open and its contents spewed into the abdominal cavity, creating the gravest risk of infection. After considering removal of the entire stomach, Dr. Claydon sewed up the tear in the stomach and stabilized plaintiff's condition. The surgical diagnosis was a perforated ulcer of unknown origin despite the fact that such ulcers usually appear at the bottom portion of the stomach and are of smaller size. As a result of the diagnosis, plaintiff was placed on a specialized diet and changed his manner of living to treat his ulcer.

At the hospital, plaintiff had included his ingestion of baking soda as part of his medical history. No medical report filed with the Vineyard Hospital asserted nor suggested that plaintiff's acute reaction was caused by any aspect of the baking soda. The case was obviously unusual for the staff of the Martha's Vineyard Hospital, and the cause was discussed at a regular staff meeting on the Friday following the operation. No member of the staff, which included gastroenterologists, questioned the role of the baking soda.

Plaintiff experienced more difficulties and underwent a series of corrective operations. A ventral hernia developed at the site of the original incision, and this and other complications required further hospitalization, primarily at the Georgetown University Medical Center, and on one occasion at the Martha's Vineyard Hospital. In fact, plaintiff underwent six separate operations in an effort to stabilize his condition. Although the records of these procedures often refer to the stomach rupture as "secondary" to the taking of bicarbonate of soda, no physician associated with the later care ever believed that the

condition was caused by the baking soda. In fact, one Georgetown University physician who took Graves' medical history testified that he wrote an exclamation point after the reference to the sodium bicarbonate to indicate his disbelief.

Four years after the incident, one of the plaintiff's co-workers saw a televised news account of a spontaneous stomach rupture. This friend quickly called the plaintiff who switched on his television but missed the show. Graves then went to the television station and asked to see a copy of the film clip. The film clip described the experience of Michael Webber, from the Washington, D.C. area, who claimed to have suffered an almost identical experience after ingesting baking soda. Plaintiff himself was later interviewed by the news staff of the television station in a follow-up interview that ran on the metropolitan Washington news. The attorney for Webber called Mr. Graves. Graves asked this attorney if he thought he had a cause of action. The attorney replied that it sounded similar to his client's case. Plaintiff called Dr. Claydon, the surgeon who performed the first operation, and related the story to him. Dr. Claydon agreed that if it were scientifically possible for baking soda to cause rapid stomach expansion, then the Arm & Hammer was a possible cause of his injuries. This suit ensued.

Arm & Hammer moved to dismiss plaintiff's complaint on the basis of the statute of limitations because four years had passed since the night of the injury in August 1979. The motion was originally denied by the Law Division, because of the unusual nature of the causation of the injury, but the Appellate Division remanded for a more complete hearing. Rather extensive discovery has taken place, which gives us a sound record on which to base a discovery-rule decision.

On remand, the Law Division granted Arm & Hammer's motion to dismiss. In the Law Division's view, the plaintiff knew all the facts that equate with an actionable claim when the injury occurred. The syllogism ran thus: the plaintiff knew he had an injury and that he had taken baking soda. There was

available medical literature that could have supported the claim. Thus, he was in possession of facts that reasonably could have been equated in law with a claim against Arm & Hammer. The trial court found:

Before August 22, 1979 and thereafter there existed sufficient information in the medical and scientific communities which was clearly capable of providing a basis for a claim against the defendant especially when such information was combined with the facts and circumstances leading to the event in question.

Moreover, the trial court found that plaintiff knew almost from the moment of injury that the bicarbonate of soda was the cause, as evinced by the fact that at subsequent medical examinations he always related his ingestion of baking soda prior to his stomach perforation. The court stated: "I find it most unlikely that plaintiffs never considered making a connection between the ingestion of baking soda and the stomach rupture." The Law Division noted that plaintiff's claims were time-barred by the statute of limitations even if plaintiff could prove that the defendant knowingly failed to warn the public about its product's dangers.

On appeal, the Appellate Division accepted the basic factual determinations of the trial court; they are essentially not in dispute. The Appellate Division differed, however, on the application of those facts to the law. 225 N.J. Super. 49, 54-55 (1988). The Appellate Division concluded, similar to the Court in Lynch v. Rubacky, that "[t]he shortcoming of the determination below rests not so much upon the facts as determined by the trial court as upon the legal significance of these facts under the discovery rule." 85 N.J. 65, 70 (1981).

The Appellate Division ruled:

[A] layman should not be charged with knowledge of cause and effect, even cause and effect which he may suspect, when the physicians who are treating him and who have the same factual information on which his own suspicions are based completely discount the validity of those suspicions. [225 N.J. Super. at 56.]

It thus concluded that plaintiff cannot be held to have been constructively aware of the causal connection between the bicarbonate of soda and his medical condition. Id. at 57.

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