The opinion of the court was delivered by: JACKSON
Plaintiff brings this suit for injuries which she allegedly sustained as a result of her use of the Dalkon Shield, an intrauterine birth control device manufactured and marketed by defendant A.H. Robins Company, Inc. ("Robins") in the early 1970's. It is undisputed that the device was initially inserted in plaintiff's uterus in 1971, and that she wore it without incident until April, 1975, when she experienced difficulties which led to its removal and a diagnosis of pelvic inflammatory disease ("PID"). On January 3, 1980, after having read articles on the subject, plaintiff wrote to Robins asserting her entitlement to compensation for the physical and emotional harm caused her by the IUD, and her letter was forwarded to the Aetna Casualty & Surety Company, Robins' insurer, which later that year paid her $15,000 for her injuries. The instant suit was filed on November 25, 1983, demanding further compensation for her belatedly discovered inability to bear children.
Defendant moves for summary judgment on the ground that the suit is barred by the applicable statute of limitations. As the moving party, defendant bears the burden of demonstrating that there exists no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Catrett v. Johns-Manville Sales Corp., 244 U.S. App. D.C. 160, 756 F.2d 181, 184 (D.C. Cir. 1985); McKinney v. Dole, 765 F.2d 1129, slip op. at 9-12 (D.C. Cir. 1985). Upon consideration of the pleadings and other materials submitted by both parties, the Court will grant defendant's motion.
Under District of Columbia law, an action for negligence, strict liability or misrepresentation must be brought within three years after a cause of action accrues. D.C. Code § 12-301(8). Ordinarily a cause of action is said to accrue when an injury occurs. Shehyn v. D.C., 392 A.2d 1008, 1013 (D.C. 1978); Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 994 (D.C. 1978). However, in cases such as this in which the relationship between tortious conduct and subsequent injury may be obscure, a "discovery rule" is applied to begin the statute of limitations' running at the time when a prospective plaintiff knows or should know through the exercise of due diligence of her right to recover, or, in other words, when she is put on "inquiry notice" of the existence of actionable harm. Burns v. Bell, 409 A.2d 614 (D.C. 1979); Kelton v. D.C., 413 A.2d 919 (D.C. 1980); Grigsby v. Sterling Drug, Inc., 428 F. Supp. 242 (D.D.C. 1975), aff'd, 177 U.S. App. D.C. 270, 543 F.2d 417 (D.C. Cir. 1976), cert. denied, 431 U.S. 967, 53 L. Ed. 2d 1063, 97 S. Ct. 2925 (1977).
Although it appears that plaintiff may not have learned with certainty of her infertility until she underwent laparoscopy in January, 1981, it is indisputable that in January, 1980, when she wrote to Robins, she was fully cognizant of the fact that she had sustained injury to her reproductive organs and that defendant's product was the likely cause of that injury. Her own deposition testimony indicates that plaintiff had been made aware as early as 1975 of serious medical problems secondary to her PID.
(Indeed, there is evidence, albeit contradicted by her now, that plaintiff may also have suspected infertility by 1980, if not earlier).
But there is absolutely no doubt that as of January, 1980, plaintiff had actual knowledge of a serious physical debility, and of an explanation for it giving her a right to recompense from the party she believed to be responsible. See Dawson v. Eli Lilly & Company, 543 F. Supp. 1330 (D.D.C. 1982). The fact that she did not then comprehend the full extent of all possible sequelae does not matter, for the law of limitations requires only that she have inquiry notice of the existence of a cause of action for personal injury. Caldwell v. A.H. Robins Co., 577 F. Supp. 796, 797-98 (W.D. Pa.), aff'd, 735 F.2d 1347 (3d Cir.), cert. denied, 469 U.S. 862, 105 S. Ct. 197, 83 L. Ed. 2d 129, reh'g denied, 469 U.S. 1029, 105 S. Ct. 450, 83 L. Ed. 2d 375 (1984); Hulver v. U.S., 562 F.2d 1132, 1137 (8th Cir. 1977), cert. denied, 435 U.S. 951, 55 L. Ed. 2d 800, 98 S. Ct. 1576, reh'g denied, 436 U.S. 923, 56 L. Ed. 2d 765, 98 S. Ct. 2275 (1978).
Once in court, she may, of course, recover for both such conditions as she then has and those she can prove she is reasonably likely to develop in the future as a consequence of the defendant's wrongful conduct. But she must get to court within the statutory period. To hold otherwise would strip the statute of limitations of all utility as a statute of repose in any case in which nothing more than a plaintiff's advancing age, change of status, or the natural progression of a disease process, might compound the adverse effects of the original injury, thus starting the period of limitations running anew as each deficit materialized.
Nor can plaintiff's failure to file suit in a timely fashion here be attributed to fraud or misrepresentation on defendant's part, thus equitably estopping Robins from asserting the defense of limitations. Assuming arguendo that Robins concealed from the public certain information as to the propensity of its product to cause injury, it cannot in any way be found to have lulled this plaintiff into inaction concerning her claim. Nelson v. A.H. Robins Co., 515 F. Supp. 623, 625 (N.D. Cal. 1981). Plaintiff aggressively pursued her claim herself altogether undeceived. Had she consulted an attorney, the attorney would undoubtedly have advised her to file suit prior to January, 1983, in order to preserve her right to recover for any anticipated future consequences, but he could not have added to her knowledge of her right to recover at all.
Therefore, for the foregoing reasons, it is, this 17th day of July, 1985,
ORDERED, that defendant's motion for summary judgment is granted, and the complaint is hereby ...