that she had a claim that her injuries were caused by a defect in defendants' product. Therefore, the statute of limitations has run and defendants must be granted summary judgment.
It is undisputed that plaintiff took 500 mg. per week of Aralen between September 1966 and October 1968. In August, 1968, she felt dizzy, became nauseated and had a feeling her ears were stuffed with cotton. Her hearing was suppressed and distorted. Things improved somewhat after medical attention but her hearing in her left ear was thereafter substantially impaired. After her return to the United States in October, 1968, she was referred to a specialist, Dr. Fields. After examining her, Dr. Fields concluded the "most likely cause" of her hearing loss was chloroquine toxicity (Fields deposition, 27). He told her to stop taking the chloroquine and advised her there was "a possibility" that it was the cause of her hearing loss. (Fields deposition, 10; Grigsby deposition, 45-6).
Having been informed of this "possibility," a great many avenues of further investigation were open to Dr. Grigsby which she did not pursue. There were several recent references in the medical literature regarding hearing loss as the result of chloroquine toxicity. Dr. Grigsby never asked Dr. Fields any questions regarding the basis for his diagnosis. Her hospital records contained the statement by another doctor, "rule out chloroquine toxicity," indicating the strong suspicion of such toxicity (Fields deposition, 24), but Dr. Grigsby never saw them until immediately prior to bringing this lawsuit (Grigsby deposition, 53). Dr. Grigsby testified she had never seen the package insert describing the known side effects of chloroquine (Grigsby deposition, 17), although as a physician she had a statutory right to request one from the manufacturer. 21 U.S.C. § 331(o). Nor did Dr. Grigsby initiate any other communication with the manufacturer to attempt to determine whether any similar side effects had been reported. Cf. Hoeflich v. William S. Merrell Co., supra, 288 F. Supp. at 661 n. 2.
What plaintiff claims she did do, however, as a result of the suspicions Dr. Fields had aroused, was to consult the Physicians' Desk Reference (PDR), a standard medical manual, for the years 1968 through 1973. Initially plaintiff sought to avoid the statute of limitations by claiming the information supplied by the manufacturer in this reference amounted to fraudulent concealment sufficient to toll the statute of limitations, see Holmberg v. Armbrecht, 327 U.S. 392, 66 S. Ct. 582, 90 L. Ed. 743 (1946), in that the PDR "did not report any connection between the use of ARALEN and Neurosensory Hearing Loss," until the 1974 edition. (Grigsby affidavit, April 11, 1975, para. 10). However, it subsequently developed that the PDR for the years 1969, 1970 and 1971 did emphasize the various toxicity reactions plaintiff experienced and in fact contained the following specific statement: "A few cases of a nerve type deafness have been reported after prolonged therapy, usually in high doses." All that was added in 1974 was the report of a particular case strikingly similar to plaintiff's "Tinnitus [ringing in the ears] and reduced hearing have been reported in a patient with preexistent auditory damage, after administration of only 500 mg. once a week for a few months."
Plaintiff has not, in fact, discovered any new information which has enabled her to bring the lawsuit. See Emmett v. Eastern Dispensary and Casualty Hospital, 130 U.S. App.D.C. 50, 396 F.2d 931, 937-8 (1967). Rather, as her condition has worsened, it has become more of an impediment to her in her career, and, as counsel stated at oral argument, she was advised by a personal friend who is a lawyer that she might have a good legal case. (See also, Grigsby affidavit, April 11, 1975, para. 11). Such subjective factors do not preclude the running of the statute of limitations. Cf. Maddox v. Andy's Refrigeration & Motor Service Co., 160 A.2d 799 (D.C.Mun.App.1960).
The three-year period of time since plaintiff's cause of action arose having run, and there being no material dispute of fact precluding the conclusion that plaintiff knew or in the exercise of due diligence could have learned of the facts giving rise to her cause of action, summary judgment shall be granted in favor of defendants.
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