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In Surgical Sutures Cases II11/18/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Maria Cotter (plaintiff) appeals from a judgment entered in favor of defendants Ethicon, Inc., Johnson & Johnson Health Care Systems, Inc., and others, after the trial court granted defendants' demurrer to plaintiff's first amended complaint without leave to amend, on the ground that her claims for personal injury were barred by the statute of limitations. We affirm.
Background
On August 21, 2001, plaintiff, acting in propria persona, filed a complaint against defendants alleging 11 causes of action for negligence, products liability, and fraud.
The complaint alleged that defendants Ethicon and Johnson & Johnson, producers of 80 percent of all medical sutures in the country, designed, manufactured, marketed, distributed and sold contaminated sutures in 1993 and 1994. Plaintiff underwent abdominal surgery in May 1994 in which defendants' sutures were used, causing her to suffer infection and injury. "Plaintiff did not know, or have reason to know, that Defendants were the cause of her injuries until nationwide publicity occurred in 1999 regarding Ethicon's overall malfeasance in designing, manufacturing, distributing, marketing, and selling its vicryl sutures."
Defendants demurred to the complaint asserting that on its face it was barred by the one-year statute of limitations in Code of Civil Procedure section 340, as interpreted by the Supreme Court in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly). In other words, the complaint recited, as quoted above, that sometime in 1999 plaintiff had reason to know the cause of her injury. Therefore the statute of limitations ran one year later, sometime in 2000, and the filing of the complaint in 2001 was too late.
Plaintiff retained counsel and opposed the demurrer. In her opposition, counsel stated the following: Plaintiff has necrotizing fasciitis, which causes her constant and severe pain, and severe infection in several organs and her limbs. From 1994 to 2000, plaintiff and her various physicians did not know the cause of her condition and considered it a "medical mystery." Plaintiff attempted to solve the mystery by gathering information about various unsolved medical ailments.
Sometime around September 1999, plaintiff heard the introduction to a television program (20/20) in which one of the stories involved what she believed to be a new "medical mystery." She ordered a copy of the videotape of the program because of her interest in her own condition. When she received the tape weeks later, however, she "did not watch it but rather place it with other video and information she intended to review at some point."
Almost a year later, on August 24, 2000, plaintiff's doctor diagnosed necrotizing fasciitis and told her she could lose her leg. According to plaintiff's opposition, the evening she received the diagnosis, she began reviewing all her medical records collected through the years, including her 1994 surgical report. Plaintiff discovered that Ethicon sutures had been used in her surgery and in particular recalled that this name was discussed in the videotape. Plaintiff then watched the tape and learned that Ethicon sutures used in 1994 were contaminated. Plaintiff claimed at that moment she first realized that the source of her continuing illness could be from contaminated Ethicon sutures.
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