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Doe v. Miles2/18/1997
PELANDER, Presiding Judge.
In these consolidated actions, plaintiffs/appellants Jane Doe and her son, A. Doe, contend the trial court erred in granting summary judgment for defendants/appellees on statute of limitations grounds. We disagree and therefore affirm.
We view the evidence in the light most favorable to the parties against whom summary judgment was entered and independently review any questions of law relating to the statute of limitations defense. Owens v. City of Phoenix, 180 Ariz. 402, 405, 884 P.2d 1100, 1103 (App. 1994); Zuck v. State, 159 Ariz. 37, 39, 764 P.2d 772, 774 (App. 1988). Jane Doe's twin sons, A. Doe and B. Doe, were diagnosed with mild hemophilia shortly after their births in 1969. Their medically-prescribed treatment from 1978 to 1987 included infusion of "factor VIII concentrate," a blood coagulant used to control and stop bleeding in hemophiliacs. Both A. and B. contracted human immunodeficiency virus (HIV) from the factor concentrate infusions. B. tested positive for HIV in July 1987 and ultimately died of acquired immune deficiency syndrome (AIDS) in April 1989. A. also was diagnosed with HIV after testing positive in August 1987.
In July 1993, plaintiffs Jane Doe (on behalf of herself and B. Doe's estate) and A. Doe filed separate actions against defendants/appellees - various producers of factor concentrates ("fractionators") and healthcare providers who allegedly were involved in the hemophilia care of A. and B. Plaintiffs alleged negligence and product liability theories against the various defendants. Defendants eventually moved for summary judgment on the basis that plaintiffs' claims were time-barred under A.R.S. ยง 12-542. The trial court granted the motions, and this appeal followed.
We must determine de novo whether there are any genuine issues of material fact relating to the limitations defense and whether the trial court erred in applying the law. United Bank v. Allyn, 167 Ariz. 191, 805 P.2d 1012 (App. 1990). Section 12-542 required that plaintiffs' actions be "commenced and prosecuted within two years after the cause of action accrued, and not afterward." Under the common law "discovery rule," a cause of action accrues "when the plaintiff knew or by the exercise of reasonable diligence should have known of the defendants' conduct and therefore the statute of limitations does not begin to run until that time." Mayer v. Good Samaritan Hosp., 14 Ariz. App. 248, 252, 482 P.2d 497, 501 (1971). See also Vega v. Morris, 184 Ariz. 461, 463, 910 P.2d 6, 8 (1996). In other words, "the claim is barred two years from when the plaintiff knew or should have known facts giving rise to the claim." Anson v. American Motors Corp., 155 Ariz. 420, 424, 747 P.2d 581, 585 (App. 1987).
Plaintiffs had the burden of establishing that the discovery rule applied to delay the statute of limitations. Ulibarri v. Gerstenberger, 178 Ariz. 151, 155, 871 P.2d 698, 702 (App. 1993); Cooney v. Phoenix Newspapers, Inc., 160 Ariz. 139, 141, 770 P.2d 1185, 1187 (App. 1989). "Once the defendant has established a prima facie case entitling him to summary judgment [on a statute of limitations defense], the plaintiff has the burden of showing available, competent evidence that would justify a trial." Ulibarri, 178 Ariz. at 156, 871 P.2d at 703. Plaintiffs failed to sustain that burden here.
The record shows that in 1987, when both A. and B. tested positive for and were diagnosed with HIV, Jane Doe believed they had contracted the virus from factor concentrates. As early as 1983, she also had received, read and retained newsletters and special bulletins which informed her of the link between factor concentrate and HIV/AIDS. Similarl
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