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COLAROSSI v. SCHMID LABS.

July 15, 1993

LORRAINE M. COLAROSSI and ELIZABETH D. SUSMAN, Plaintiffs,
v.
SCHMID LABORATORIES, INC. and SCHMID PRODUCTS CORP., Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 Currently before the court is the motion of Schmid for summary judgment against Susman. *fn1"

 Facts

 Susman, currently a resident of California, brought suit to recover for personal injuries sustained in 1978. Schmid is licensed or authorized to transact business in, transacts business in, markets its products in and intends the use of its products within the District of Columbia. Barnes Cert., Ex. B (Answer, PP 32-36).

 In spring 1970, while living in New York City, Susman had an intrauterine device (an "IUD") inserted by Dr. Robert Hall ("Dr. Hall"). Susman Aff., P 2, 4. The procedure was performed at Columbia Presbyterian Hospital in New York City. Id., P 2. Susman stated Dr. Hall only advised her that as a result of the IUD, she might experience heavier than usual menstrual bleeding. Id., P 3.

 Susman wore the IUD for almost eight years, between 1970 until 1978, without any problem. Id., P 5. She went for yearly gynecological examinations, "but experienced no adverse reproductive tract health problems." Id. Between 1970 and 1978, Susman and her family moved from New York City to Greenwich, Connecticut to Puerto Rico and back to Connecticut. Id., P 6.

 In February and March 1978, *fn2" Susman began to suffer increasingly severe abdominal pain, abdominal distension, cramping, fever, abnormal vaginal discharge and bleeding. Id., P 7. Susman's physician, Dr. Robert Hardy ("Dr. Hardy"), initially treated Susman with antibiotics. When the antibiotics failed to alleviate her symptoms, however, he admitted her to Greenwich Hospital (the "Hospital") on 8 March 1978. Id., P 8. Upon admission to the Hospital, Dr. Hardy removed Susman's IUD and discovered a large pelvic mass. When treatment with intravenous antibiotics had no effect, on 9 March 1978, Dr. Hardy operated. Id., P 9.

 
Dr. Hardy performed a laparoscopy at which time he discovered a large pelvic abscess involving the posterior uterus, tubes, ovaries and portions of the bowel. [Her] left fallopian tube was infected to the point that it was not salvageable and had to be removed.

 Id. Pursuant to Susman's request that, if possible, Dr. Hardy not remove any reproductive organs so that she might have more children, her right fallopian tube and ovary were not removed. Id., P 10.

 From March to September 1978, however, Susman continued to experience severe pelvic pain and irregular menstrual periods. Id., P 11. Dr. Hardy diagnosed Susman as suffering from chronic pelvic inflammatory disease ("PID"). On 19 September 1978, Susman was again hospitalized. After exploratory surgery by Dr. Hardy, Susman underwent a total abdominal hysterectomy including removal of her right fallopian tube and ovary. Id. She was subsequently readmitted on 6 October 1978 for re-suturing of her vaginal vault because she experienced excessive bleeding. Id. Susman stated that "after the second surgery, Dr. Hardy informed [her] that [her] pelvic infection might have been caused by the IUD." *fn3" Id., P 12.

 Following the second surgery, Susman and her husband divorced. Susman then moved from Connecticut to California. Id., P 14.

 Susman stated she and her ex-husband believed she had worn a Dalkon Shield. Id., P 16. Susman stated she had not known PID and her subsequent injuries were the result of anyone's fault or any wrongdoing on the part of the manufacturer of the IUD. Id., P 15. It was not until Susman read about the Dalkon Shield litigation in 1986 she gained knowledge there might be anything wrong with the IUD. Id.

 Susman stated:

 
Sometime in 1986, [she] first became aware of publicity surrounding the adverse effects of the Dalkon Shield and that the problems suffered by women who wore the Shield were the subject of law suits for damages due to the defects of the product. In early 1986, [she] recalled seeing articles in the print media -- newspapers and magazines -- regarding these allegations and advertising the claim filing mechanism set up by the Dalkon Shield [Claimants] Trust in order to compensate women who had suffered injuries as a result of wearing the Shield.

 Id., P 17. *fn4" Susman filed an initial claim with the Dalkon Shield Claimants Trust sometime in 1986. Id., P 18.

 Susman stated there was little movement of her case between 1986 and 1989. Id., P 19. In 1989, Susman engaged Sarah Lawrence, Esq. ("Lawrence") to represent her in the Dalkon shield litigation. *fn5" In 1991, Susman requested that Lawrence send to her her medical records. Susman stated she had never seen the medical records prior to 1991. Id., P 19.

 In March 1991, while reviewing her records, Susman observed Dr. Hardy's notation of 8 March 1978 which stated he removed from Susman a "Saf-T-Coil" IUD. Id., P 20; McGloin Cert., Ex. C. Susman immediately contacted her attorney *fn6" and subsequently discontinued her claim against the Dalkon Shield Claimants Trust. Susman Aff., P 21. Lawrence advised Susman that although she did not have any experience litigating claims against the manufacturers of Saf-T-Coil, other attorneys in other parts of the country had such experience. Id., P 22. In March 1992, Susman contacted Shainwald, one of her present attorneys, about bringing the present action. Id., PP 23-24.

 The Amended Complaint includes four counts by Susman against Schmid. Counts Five *fn7" through Eight seek compensatory damages based on negligence, strict products liability, breach of warranty and misrepresentation. Amended Complaint, PP 41-58.

 Discussion

 Schmid asserts summary judgment is appropriate because Susman's claim is barred by the statutes of limitations for the District of Columbia, New Jersey, New York, Connecticut and California. Susman argues in opposition to summary judgment that neither the statute of limitations for the District of Columbia nor the statute of limitations for New Jersey bars her claims. *fn8"

 A. Standard of Review

 To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The present task is to determine whether disputed issues of fact exist, but a district court may not resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir. 1992) ("The threshold inquiry is whether there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" (citations omitted)); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) ("We apply the test . . . (1) Is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?") (quotations omitted); Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) ("Summary judgment is inappropriate when a conflict on a material ...


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