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BISHOP v. FARHAT6/17/1997
by OCGA ยง 9-3-33. Baxter, however,
claims that Bishop suffered allergic reactions to latex gloves as far back as 1990. Because she "knew or should have known" of her allergy to latex at this earlier date, Baxter argues, the Bishops' action for personal injury and loss of consortium is time-barred.
In support of its motion, Baxter produced a statement Bishop made to a risk manager shortly after her severe allergic reaction in February 1993. When the adjuster asked whether she had previously "noticed reactions from rubber gloves before with powder on them and stuff," Bishop stated, "Yeah. See, I knew I was allergic to them. I knew for a fact that I was allergic." Baxter also produced an affidavit from Bishop's physician, Dr. Boyd, showing his medical notes reflected that "she had been allergic to latex gloves since experiencing [an illness]" in 1990.
Bishop countered that she did not know before February 1993 of her latex allergy; rather, she believed the powdered cornstarch used as a coating in some of the gloves she wore was causing her problems. The record shows that Bishop has worn latex gloves in her work since 1987. In the summer of 1992, while wearing powdered latex gloves apparently made by Baxter, she began to suffer itchy, watery eyes. In July 1992, her left arm became red and itchy while wearing powdered latex gloves. Bishop then switched to non-powdered gloves and, although she had some symptoms over the following months, attributed those problems to other causes or to the fact that others she worked with wore powdered gloves. She produced a different supporting affidavit from Dr. Boyd, who clarified that Bishop had not necessarily told him she had an "allergy to gloves" beginning in 1990. Furthermore, the affidavit of co-worker Joyce Hooker, submitted by Baxter in support of its motion for summary judgment, confirms that as a result of these problems Bishop requested that Hooker order only non-powdered gloves for use in their medical office.
Here, Bishop's argument is that because Baxter failed to warn her that wearing latex gloves could cause her to become sensitized to latex proteins, she mistakenly believed she was sensitive to a powder coating in the gloves and could remedy that problem by avoiding the powder. Under the circumstances, whether her beliefs and actions were reasonable may not be determined on summary judgment. "The occurrence of `an injury ' [cit.] means the discovery of the particular injury for which the action is brought." Anderson v. Sybron Corp., 165 Ga. App. 566, 567-568 (299 S.E.2d 160) (1983), aff'd, 251 Ga. 593 (310 S.E.2d 232) (1983). This evidence creates a jury issue as to whether Bishop "knew or through reasonable diligence should have discovered that injury resulted from [Baxter's failure to warn] before or after the two years preceding the filing of suit." King v. Seitzingers, Inc., 160 Ga. App. 318, 320 (287 S.E.2d 252) (1981).
Our holding does not allow Bishop to "split" the product by arguing that she knew it was dangerous, but did not know which part was dangerous. Rather, our opinion merely holds that a jury question exists as to whether Bishop should have known the cause of her problem. Even though Bishop had a reaction she associated with powder in the gloves, a jury question exists as to when she should have associated her problems with "latex allergy." See Andel v. Getz Svcs.., 197 Ga. App. 653, 655 (1) (399 S.E.2d 226) (1990), overruled on other grounds, Hanna v. McWilliams, 213 Ga. App. 648, 651 (2) (b) (446 S.E.2d 741) (1994).
Case No. A97A1115: Ansell's Appeal
4. In its first enumeration of error, Ansell argues that because Bishop stopped using its brand of powdered gloves in
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