On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None.
Plaintiff claims that in 1963 and 1964 she ingested certain drugs manufactured and distributed by defendants, and that because those drugs were defective, they produced discoloration in her adult teeth. She started this products-liability action in 1988. After discovery, defendants moved for summary judgment based on the statute of limitations, N.J.S.A. 2A:14-2 and -21. Plaintiff relied on our "discovery rule," arguing that she did not know, and could not reasonably have known, that she had a cause of action against these defendants until some time within two years before she filed her complaint.
The trial court denied summary judgment for defendants, and the Appellate Division denied leave to appeal. We granted defendants' motion for leave to appeal, 121 N.J. 658, 583 A.2d 345 (1990), and now reverse.
Plaintiff, Kelly Ann Apgar, was born on August 19, 1961. The amended complaint filed in this cause in October 1988 alleges that between January 1963 and April 1964 she ingested certain tetracycline-based antibiotic drugs manufactured and distributed by defendants; that those drugs were defective as not being reasonably safe for their intended use by pediatric consumers, particularly in their "known potential for tooth discoloration consequent to infant ingestion"; and that defendants are liable for the ill effects, specifically the discoloration of plaintiff's adult teeth, caused by defendants' products. Her complaint is grounded on theories of strict products liability, failure to warn (first count); negligent failure to warn (second count); breach of warranty (third count); misbranding, deceptive packaging, and false labeling, all in violation of state statutory standards, federal regulations, and Food and Drug Administration requirements (fourth count); and unconscionable commercial practice, fraud, and misrepresentation, all in contravention of the New Jersey Consumer Fraud Act, for which she seeks treble damages (fifth count).
Defendants' answering pleadings raised the defense of the statute of limitations. Discovery included the deposition testimony of plaintiff, which forms a pertinent part of the record for disposition of this appeal. Because plaintiff acknowledges the accuracy of the facts set forth in the brief of defendant The Upjohn Company (Upjohn), we take the liberty of drawing liberally on Upjohn's factual presentation.
While she was still in grammar school, plaintiff noticed that her permanent teeth were discolored. In junior high school she learned from her dentist that medicine she had taken as an infant had caused the discoloration. The dentist told her that the staining could not be removed easily.
At the suggestion of a family friend, a physician, plaintiff then visited the Johnson & Johnson Dental Clinic for an evaluation. There she learned that the tooth discoloration had been
caused by medication and that the damage was permanent. Plaintiff testified on depositions that "the people at Johnson & Johnson had said that it was related to medication." When Ms. Apgar asked her mother what medications she had taken that could have caused the discoloration, her mother identified Mysteclin, a tetracycline product.
Plaintiff admitted that by the time she was graduated from high school in 1979, she thought that medication she had taken had caused the discoloration. Moreover, she testified that after her visit to the Johnson & Johnson clinic in the 1970s, she believed that the medication had not been ...