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Smith v. Bayer Corp.12/28/2001
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiffs and appellants Todd Smith ("Smith") and Stephen Dowling ("Dowling") appeal from the trial court's judgment granting defendants and respondents' motions for summary judgment on the basis that plaintiffs' claims are barred by the statute of limitations. We find that for the time period from 1986 through September 30, 1993, there is a triable issue of material fact as to whether plaintiffs' causes of action accrued pursuant to California's "discovery rule." We also find for the time periods: (1) September 30, 1993 to January 16, 1996, and (2) April 19, 1996 to July 16, 1997, that the statute of limitations on plaintiffs' claims was tolled for the reasons stated below.
The trial court also granted defendants' motions for summary judgment against the claims of plaintiffs' spouses, Deborah Smith and Toni Dowling, on the basis that because on the date of their marriages, their respective husbands had already been infected with the HIV virus, one cannot marry into a lawsuit. We find there is a triable issue of material fact as to whether Deborah Smith and Toni Dowling married their husbands before or after their husbands' underlying causes of action accrued. Accordingly, we reverse.
PROCEDURAL AND FACTUAL BACKGROUND
1. The Complaint
On April 13, 1998, plaintiffs and appellants filed suit against respondents Baxter Healthcare Corporation ("Baxter") and Bayer Corporation ("Bayer") (collectively "defendants"), among others, alleging numerous causes of action, including: fraud, failure to warn, negligent manufacture, violation of safety regulations, conspiracy to conceal information, intentional failure to screen and test donors, failure to warn of dangerous product, and intentional and negligent failure to recall defective product; all stemming from Smith and Dowling's infection with the HIV virus, allegedly caused by use of defendants' blood clotting medication, called "factor concentrates," to treat Smith and Dowling's hemophiliac conditions.
Plaintiff Smith alleges he was infected with HIV through the use of factor concentrates manufactured by defendant Bayer. Plaintiff Dowling alleges that he was infected with HIV through the use of factor concentrates manufactured by Bayer and Baxter. Both plaintiffs seek damages for infliction of the HIV virus, as well as "negligent or intentional infliction of AIDS."
2. Defendants' Motions for Summary Judgment
In April 2000, defendants filed motions for summary judgment against all plaintiffs on the basis that Smith and Dowling's causes of action for personal injuries accrued in 1985 and 1986, respectively, and thus are barred by the one-year statute of limitations in Code of Civil Procedure section 340(3) because their lawsuit was not filed until April 13, 1998.
A. Stephen and Toni Dowling
As to Stephen Dowling, defendants claimed, pursuant to California's "discovery rule" as set forth in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (hereafter "Jolly"), and other authorities, that "Dowling had all the information needed to start the running of the statute by April 1986" but "nevertheless waited more than 12 years - until April 13, 1998 to bring this lawsuit." Defendants claimed that because, by 1986, a reasonable person, pursuant to Jolly, should have suspect
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