In the court of appeals of iowa

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IN THE COURT OF APPEALS OF IOWA
No. 3-119 / 02-0437

Filed May 14, 2003



GRETCHEN W. THOMPSON and TODD D. THOMPSON, both individually and for and on behalf of their minor children, MAREIKA L. and JAKE A. THOMPSON, Minors,

Plaintiffs-Appellants,


vs.
MARY GREELEY MEDICAL CENTER, PLAYTEX PRODUCTS, INC., REGENT MEDICAL, a division of SSL AMERICAS, INC., MAXXIM MEDICAL CORP., ANSELL HEALTH CARE PRODUCTS, INC., SAFESKIN SCIENTIFIC CORP., SAGE PRODUCTS, INC., McKESSON GENERAL MEDICAL CORP., BAXTER HEALTHCARE CORP., KREISERS, INC., THE McFARLAND CLINIC, P.C., DR. JAMES DOWNARD, and DR. TERRY McGEENEY,

Defendants-Appellees.


Appeal from the Iowa District Court for Story County, Ronald H. Schechtman, Judge.

Plaintiffs appeal the grant of summary judgment to defendants due to untimliness under the statute of limitations in this combined medical malpractice and products liability case. AFFIRMED.

Frederick James, Des Moines, and Patricia Matassarin, San Antonio, Texas, for appellants.

Steven Scharnberg and Kermit Anderson of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees McFarland Clinic, Downard, and McGeeney.

Lou Berrones and Terry Hackett of Gardner, Carton & Douglas, Chicago, Illinois, and Richard Stefani of Gray, Stefani & Mitvalsky, P.L.C., Cedar Rapids, for appellee Ansell Healthcare Products.

James Carney, Des Moines, for appellee Regent Medical Division of SSL Americas.

Barry Epstein, Newark, New Jersey, Linda Svitak, Minneapolis, Minnesota, and William Hunnicutt of Faegre & Benson, L.L.P., Des Moines, for appellee Maxxim Medical.

Michael Figenshaw and Matthew Haindfield of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee Mary Greeley Medical Center.

Joseph Happe of Huber, Book, Cortese, Happe & Brown, Des Moines, for appellee Kreisers, Inc.

Jeffrey Singer and Christy Benton of Segal, McCambridge, Singer & Mahoney, Chicago, Illinois and David Luginbill of Ahlers Law Firm, Des Moines, for appellee Safeskin Scientific.

John Donovan, Philadelphia, Pennsylvania, and Roland Peddicord and Joseph Barron, Des Moines, for appellee Sage Products.

Michael Philippi and David Larmore of Ungaretti & Harris, Chicago, Illinois, and Donald Thompson of Bradley & Riley, P.C., Cedar Rapids, for appellee Baxter Healthcare.

William O’Brien and Craig Caliendo of Delany & O’Brien, Philadelphia, Pennsylvania, and William Wickett and M. Kathleen Brown of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker & Ordway, L.L.P., Des Moines, for appellee McKesson General Medical.

Heard by Sackett, C.J., and Huitink and Vogel, JJ.

HUITINK, J.

I. Background Facts and Proceedings.

On August 30, 2000, Gretchen Thompson, her husband, and children sued Mary Greeley Medical Center, the McFarland Clinic, Dr. Downard, and Dr. McGeeney, for medical malpractice claiming they failed to properly diagnose and treat Gretchen’s latex allergy. Their petition also included product liability claims against unknown manufacturers and distributors of latex gloves. On January 12, 2001, Thompsons amended their petition naming Regent Medical, Maxxim Medical Corp., Ansell Health Care Products, Inc., Safeskin Scientific Corp., and Sage Products, Inc. as manufacturers of latex gloves.1 McKesson General Medical Corp., Baxter Healthcare Corp., and Kriesers, Inc., were named as distributors of the latex gloves.

All of the defendants moved for summary judgment arguing the Thompsons’ claims were barred by applicable two-year statutes of limitations. See Iowa Code § 614.1(2), (9) (1999). The trial court determined the statute of limitations could have started to run when Thompson developed a rash while wearing latex gloves in 1996. The court’s ruling further provides:

That inquiry notice was there on August 6, 1998. Gretchen heard her treating physician expound “it sounds like it might be a latex allergy,” and referred her to an allergist to confirm it. She knew about her previous use of latex on that date and her reaction. She knew about her allergies, not only hives, itching and rhinitis, but also her violent reactions to certain foods. On that date, she was aware that she had used latex gloves at Mary Greeley and that Drs. Downard and McGreeney had told her, contrary to Carter, that it was hormonal. And she also knew that the latex gloves were manufactured and distributed by someone other than the physicians and hospital. She was on inquiry, and she started her investigation.

The court accordingly concluded the Thompsons’ medical malpractice and products liability claims were time barred and entered summary judgment dismissing Thompsons’ lawsuit against all of the defendants, resulting in this appeal.

II. Standard of Review.

We review a district court’s ruling on a motion for summary judgment for correction of errors of law. Financial Mktg. Servs., Inc. v. Hawkeye Bank & Trust, 588 N.W.2d 450, 455 (Iowa 1999). Summary judgment will be upheld when the moving party shows there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. See Iowa R. Civ. P. 1.981(3). In reviewing a motion for summary judgment, we consider the evidence in a light most favorable to the party opposing the motion. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).



III. Statute of Limitations.

Thompsons contend the summary judgment record indicates that they did not know until August 31, 1998, that Thompson had a latex allergy. They allege that until Gretchen Thompson discussed the results of a blood test with Dr. Gottlieb on that date, she did not have sufficient facts to realize she had a latex allergy and was not, as the trial court found, earlier placed on inquiry notice for purposes of the statute of limitations. We disagree.


A. Medical Defendants.

Iowa Code section 614.1(9) requires medical malpractice actions to be commenced

within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of, the injury or death for which damages are sought in the action . . . .

The supreme court has interpreted section 614.1(9) as follows:

Subsection 9 means the statute of limitations now begins to run when the patient knew, or through the use or reasonable diligence should have known, of the injury for which damages are sought. The statute begins to run even though the patient does not know the physician had negligently caused the injury.


Langner v. Simpson, 533 N.W.2d 511, 517 (Iowa 1995) (emphasis in original).

The ultimate question under section 614.1(9) is when a plaintiff has sufficient knowledge to place the plaintiff on inquiry notice to investigate further. McClendon v. Beck, 569 N.W.2d 382, 395 (Iowa 1997). The supreme court has also held:

[T]he statute begins to run when a person gains knowledge sufficient to put the person on inquiry. On that date, the person is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation. Moreover, once a person is aware that a problem exists, the person has a duty to investigate even though the person may not have knowledge of the nature of the problem that caused the injury.

Langner, 533 N.W.2d at 518. The limitations period is the outer time limit for making the investigation and bringing the action. Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 351 (Iowa 1987).

Based on our review of the undisputed facts included in the summary judgment record, we conclude the district court properly found plaintiffs were placed on the requisite inquiry notice on August 6, 1998, when Dr. Carter told Gretchen Thompson she might have a latex allergy. The district court properly concluded the statute of limitations began to run on August 6, 1998, and plaintiffs’ suit, filed on August 30, 2000, was barred by section 614.1(9).


B. Manufacturing and Distributing Defendants.

Thompsons’ products liability claims against the manufacturing and distributing defendants is governed by the two-year statute of limitations found in section 614.1(2). For purposes of our discussion, we will assume Thompson suffered a “pure latent” injury. The common law discovery rule is applicable to this class of cases. See Borchard v. Anderson, 542 N.W.2d 247, 250 (Iowa 1996); LeBeau v. Dimig, 446 N.W.2d 800, 802 (Iowa 1989). Under the common law discovery rule, an action does not accrue until the plaintiff knows or in the exercise of reasonable care should have known both the fact of the injury and its cause. Frideres v. Schiltz, 540 N.W.2d 261, 268 (Iowa 1995).

Like the medical malpractice discovery rule, the common law discovery rule also embraces the concept of inquiry notice. See Woodroffe v. Hasenclever, 540 N.W.2d 45, 48 (Iowa 1995). “[T]he statute of limitations begins to run when a plaintiff first becomes aware of facts that would prompt a reasonably prudent person to begin seeking information as to the problem and its cause.” Estate of Montag v. T.H. Agric. & Nutrition Co., 509 N.W.2d 469, 470 (Iowa 1993). The supreme court has further stated:

Moreover, the duty to investigate does not depend on exact knowledge of the nature of the problem that caused the injury. It is sufficient that the person be aware that a problem existed. One purpose of inquiry is to ascertain its exact nature.

Franzen v. Deere & Co., 377 N.W.2d 660, 662 (Iowa 1985).

In this case, our analysis under the common law discovery rule is the same as our analysis under the medical malpractice discovery rule. We determine plaintiffs were put on inquiry notice as early as August 6, 1998, when Thompson’s treating physician told her she might have a latex allergy. We conclude plaintiffs’ claims against the manufacturing and distributing defendants were time barred by the applicable statute of limitations. Iowa Code § 614.1(1)(2).



We affirm the district court’s grant of summary judgment to defendants in this case.

AFFIRMED.


1 The district court granted summary judgment to Sage Products, Inc. because it provided latex gloves to Mary Greeley after the time Thompson worked there. Sage Products is not a party to this appeal.




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