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BISHOP v. FARHAT6/17/1997
Jill Bishop, a nurse, filed this complex products liability action against several manufacturers and distributors of latex examination and surgical gloves. Bishop claims that her use of the defendants' gloves in her work with doctors' offices and hospitals over the course of several years caused her to develop a severe allergy to the proteins contained in latex. She alleges that on February 5, 1993, she had become so sensitive to these latex proteins that she suffered a severe allergic reaction and, since that time, has been unable to resume employment. Among her other causes of action, Bishop claims the defendants breached their duties to warn her of the risk of latex allergy and negligently inflicted emotional distress upon her. Bishop's husband, Terrell, has made claims against the defendants for loss of consortium.
Before this Court are several appeals involving issues raised by the Bishops and by defendants Baxter Healthcare Corp. ("Baxter"); Ansell, Inc. ("Ansell"); and Delta Medical Systems, Inc. ("Delta"). In Case No. A97A1113, the Bishops claim the trial court erred by refusing to allow them to amend their complaint to substitute another manufacturer, Safeskin Corporation ("Safeskin"), for "John Doe 1." The Bishops also claim error in the trial court's dismissal of their claim for negligent infliction of emotional distress. In Case No. A97A1114, defendant Baxter claims the trial court should have granted its motion for summary judgment based on the statute of limitations. In Case No. A97A1115, defendant Ansell appeals the denial of its motions for summary judgment based on the statute of limitations and proximate cause arguments. Defendant Delta appeals in Case No. A97A1116, claiming the trial court should have granted it summary judgment because 1) the statute of limitations had expired and 2) it had no actual or constructive knowledge of the danger of latex allergy.
Case No. A97A1113: The Bishops' Appeal
1. In their first enumeration of error, the Bishops claim the trial court erred when it denied their motion to substitute Safeskin Corporation for a "John Doe" defendant in this action. The original complaint filed in February 1995 named as additional defendants "John Does 1-10," alleged to be unknown parties "who were involved in the design, manufacture, distribution, assembly, packaging and/or chain or distribution" of the latex gloves at issue. In an amended complaint filed on January 19, 1996, the Bishops sought to substitute Safeskin for "John Doe 1." The Bishops alleged that Safeskin "knew or should have known that, but for a mistake concerning the identity of the manufacturer of [gloves sold by defendant Delta], the action would have been brought against Safeskin within the limitations period." The trial court, exercising discretion pursuant to OCGA § 9-11-21, found the Bishops had prejudiced Safeskin through their unnecessary delay in adding the company as a defendant. See, e.g., Shiver v. Norfolk-Southern R. Co., 220 Ga. App. 483, 484 (469 S.E.2d 769) (1996).
We find the trial court erred in exercising discretion under OCGA § 9-11-21, for that statute does not apply when a plaintiff seeks to substitute a named defendant for a "John Doe." See Harper v. Mayor &c; of Savannah, 190 Ga. App. 637, 638 (1) (380 S.E.2d 78) (1989) (physical precedent only); Larson v. C. W. Matthews Contracting Co., 182 Ga. App. 356, 357 (1) (356 S.E.2d 35) (1987) (physical precedent only). The applicable procedure is that set forth in OCGA § 9-11-15 (c), by which the trial court determines whether the amended complaint "relates back" to a filing within the statute of limitations. So long as the claim against the new party arises out of the same transaction or occurrence all
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