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McKeen v. American Home Products Corp.4/14/2005
scoverable, to seek vindication in a court of law. Id. at 46. The liberality of this rule is tempered by the requirement that the plaintiff exercise due diligence in discovering the wrongful conduct on the part of the manufacturer. Id. at 48. A plaintiff's fulfillment of this duty is to be judged both subjectively and objectively; that is, if a factfinder were to determine that a plaintiff did not exercise reasonable diligence, or if a factfinder were to find that a reasonable person, similarly situated, would have discovered a defendant's wrongful conduct at an earlier date, that earlier date would serve as the time of accrual of the plaintiff's action. Id.
In the present case, the Defendants have not disputed that the manifestation of the Plaintiff's injury , the cause of her injury, and her knowledge of the wrongdoing by the manufacturer occurred at different points in time. Therefore, the discovery rule as set forth by our Supreme Court in Anthony must be applied.
The parties do not differ as to the factual background. The Plaintiff had been known to take Robitussin for cold symptoms prior to suffering a stroke on October 1, 1997. She was treated for her stroke at Miriam Hospital, where she remained until October 29, 1997. McKeen was then transferred to Braintree Rehabilitation Hospital, where she stayed until December 14, 1997. Later McKeen was transferred to Spaulding Rehabilitation Hospital in Boston, where she remained until March 14, 1998. At that time, McKeen returned to her home in Providence. McKeen's daughters cared for her until Earl Moul, Jr. ("Moul"), according to his deposition and records from PARI Independent Living Center, became her personal care attendant on February 17, 1999
The Defendants contend that the Plaintiff's cause of action accrued no later than October of 1998. They point to deposition testimony of a friend of McKeen's, Marc St. George ("St. George") indicating that he had learned from his wife, some time after McKeen's stroke, that PPA could be a cause of stroke. He testified that he later found a website indicating Robitussin contained PPA, and the risks of PPA. St. George "guessimated" that he relayed this information to Moul possibly within the first year after McKeen's stroke. Moul testified in a deposition that at some later date, he saw a website containing similar information on McKeen's computer, at the plaintiff's request. At this point, the defendants argue, McKeen's cause of action accrued because she had knowledge of a possible connection between her use of Robitussin and her stroke.
The Plaintiff challenges this timeline. McKeen asserts that the evidence indicates a much later date at which she became aware of the connection between PPA and strokes. Although St. George was not able, in his deposition, to provide a precise date for the conversation he had with Moul about PPA, he did testify that it took place after Moul began working as McKeen's personal care attendant, on February 17, 1999. Moul agreed with this account in his deposition, and added that the conversation took place after McKeen had acquired a computer. Shawna Lawton ("Lawton"), McKeen's daughter, testified that McKeen did not have a computer until after Lawton's August, 2000 wedding. McKeen testified in a deposition that the only avenue by which she received knowledge of a possible connection between her stroke and PPA and/or Robitussin was via her own computer. She further stated that she found her attorneys' website, which contained information on PPA, around this time and some time thereafter contacted their office. A paralegal for McKeen's attorneys stated in an affidavit that her law firm had posted PPA information on its website on or about November 6, 2
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