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Savage v. Old Bridge-Sayreville Medical Group

Decided: November 24, 1993.

SUZANNE SAVAGE (NEE SAMUEL), PLAINTIFF-RESPONDENT,
v.
OLD BRIDGE-SAYREVILLE MEDICAL GROUP, P.A., AND PRYSTOWSKY MEDICAL GROUP, DEFENDANTS-APPELLANTS, AND JOHN DOE, M.D., # 1-4, (JOHN DOE BEING FICTITIOUS AS TRUE IDENTITY IS UNKNOWN), DEFENDANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 260 N.J. Super. 417 (1992).

For affirmance -- Chief Justice Wilentz, and Justices Handler, O'Hern and Stein. For reversal -- Justices Clifford, Pollock and Garibaldi. The opinion of the Court was delivered by O'Hern, J. Clifford, J., Dissenting. Justices Pollock and Garibaldi join in this opinion.

O'hern

This appeal presents a difficult exercise in application of the discovery rule. The case arises, as have several recent cases, from an experience of tooth discoloration due to medical treatment with tetracycline antibiotics in early childhood.

The history and principles underlying the discovery rule have been examined by us on numerous occasions, see, e.g., Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 527 A.2d 66 (1987), and need no further elaboration here.

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 [527 A.2d 66]. 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 [527 A.2d 66]; accord Lynch v. Rubacky, 85 N.J. 65, 70 [424 A.2d 1169] (1981); Lopez v. Swyer, [62 N.J. 267, 274, 300 A.2d 563 (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, 386 A.2d 1310 (1978).

[ Abboud v. Viscomi, 111 N.J. 56, 62-63, 543 A.2d 29 (1988).]

Plaintiff was born in 1961. Because her status as a minor tolled the running of the statute of limitations until she was twenty-one, the question in her appeal is whether a hearing is required to determine if plaintiff was "reasonably unaware" before her twenty-third birthday that she had suffered the injury due to the fault

or neglect of an identifiable individual or entity.*fn1 She filed her complaint in 1989, alleging that she was unaware until 1988 that her injury was due to the fault of another. The trial court believed that no hearing on her claim of unawareness was required. It ruled:

Here the plaintiff was aware of her injury, namely the tooth discoloration, during her childhood, and she was aware of that when she reached the age of maturity. She was also aware that the medication given to her as a child may have caused the discoloration. That is, she was aware of the likely cause of her injury. Thus at the time she reached the age of maturity, she was aware of the state of facts from which she could reasonably learn if they equated in law with a cause of action.

The Appellate Division reversed, 260 N.J. Super. 417, 616 A.2d 1307 (1992), reasoning that although plaintiff was indeed aware of the fact that she had suffered injury and that medication was a likely cause of the injury, the record did not demonstrate that she was reasonably aware that the injury was due to any fault in the medication or the care given. The Appellate Division distinguished our holding in Apgar v. Lederle Laboratories, 123 N.J. 450, 588 A.2d 380 (1991), which held time-barred the claim by one who knew by the time that she reached her twenty-first birthday that her teeth had been discolored and, based on information from several dentists, that medication she had taken as a child had produced the staining. In that case, however, before the plaintiff was eighteen years old, she was under the belief that the medication "had not been thoroughly tested," and was under the further assumption that "'something [was] not right.'" Id. at 453, 588 A.2d 380. The plaintiff's theory in Apgar was that although she had reason to believe the defective medication had caused her injury, the statute of limitations did not begin to run on her claim until she learned the identities of the manufacturers of the drugs that she had taken. We disagreed because the identities of the drug manufacturers were readily ascertainable from the plaintiff's physicians.

We granted the petitions for certification of Old Bridge-Sayreville Medical Group, P.A., and Prystowsky Medical Group, 133 N.J. 433, 627 A.2d 1139 (1993), to review their contention that the Appellate Division's ruling represented a new and unwarranted expansion of discovery-rule doctrine.

I

Plaintiff was among that group of children who, in the 1960s, were treated with tetracycline antibiotics for infectious childhood diseases. She was born on January 27, 1961, shortly after the products were introduced. She suffered from childhood disease that required heavy doses of antibiotics. She recalls that when she was nine or ten years old, her mother told her that discoloration of her teeth may have been the result of taking medicine as a child. Her mother, Marilyn Samuel, recalls such a conversation but not its exact year. Mrs. Samuel recalls that she was informed by one of Suzanne's childhood dentists that the discoloration was most likely due to medication that Suzanne had received as a child. Suzanne readily acknowledges that throughout her teens and into her twenties she understood the correlation between the discoloration of her teeth and her childhood medications. She says, however, that it was not until her mother read a 1988 advertisement concerning legal actions for such tetracycline staining that she was aware that she had a claim.

II

In Feldman v. Lederle Laboratories, 132 N.J. 339, 625 A.2d 1066 (1993), we recently reviewed the regulatory history of the introduction and marketing of the tetracycline antibiotics. As early as 1963, with the possible exception of Declomycin, the Food and Drug Administration (FDA) had recommended a suggested statement, to be incorporated in the printed matter that accompanies tetracycline products, cautioning that certain use during early tooth development may cause discoloration of teeth. Sometime after 1964, the Physicians' Desk Reference (PDR) contained a

warning that administration even of Declomycin during the developmental stages of permanent teeth could cause permanent discoloration. In the case of therapeutic products that protect or prolong life, most often the absence or ...


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