Appendix — GD Searle & Co. v. Cohn
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—_—-—
Office-Supreme Court, U.S.
FILED
NO. 80-644
ALEXANDER L. STEVAS, .
CLERK
a
Supreme Court of the United States
. Ocroszr Tzrm, 1980
G. D. SEARLE & COMPANY,
Petitioner,
v.
SUSAN COHN and WALTER COHN.
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Third Circuit
RAYMOND M. TIERNEY, JR. WALTER R. COHN
Fisner
Suaniey & 15 Valley Street
og ey one fat , New Jersey 07079
(201) 643-1220
Counsel for Petitioner Counsel for Respondents
INDEX
Chronological List of Relevant Docket Entries ........
Plaintiffs’ Complaint, Filed January 29, 1974 in New
Jersey Superior Court, Law Division .............00000
Defendant’s Answer, Filed March 14, 1974 in New
Jersey Superior Court, Law Division
Defendant’s Motion for Summary Judgment, Filed
July 18, 1975 in the United States District Court
for the District of New Jersey
Excerpts From Plaintiffs’ [First] Brief, Submitted
to the United States District Court ....
Excerpts From Plaintiffs’ [Third] Brief, Submitted
to the United States District Court
State by State Analysis of the Effect of an Absent
Defendant’s Continued Amenability to Service of
Process Upon A State’s Tolling Provision, Sub-
mitted by Defendant at Request of District Court
The District Court’s First Opinion, Filed March 22,
1978 and Reported at 447 F.Supp. 903 (D.N.J.
1978)
The District Court’s second Opinion (unpublished),
Filed July 23, 1980
Judgment of Third Cireuit Court of Appeals, Filed
July 23, 1980
N.J.Ct.R.4:4-4(c) (1)
N.J.R.R4:4-4(d)
N.J.S.A.2A 114-2
N.J.S.A.2A :14-22
PAGE
la
18a
=
ii INDEX
PAGE
The following opinion has been omitted in printing this
appendix because it appears on the following page in the
appendix to the printed petition for Certiorari:
Opinion of the Court of Appeals for the Second
Cireuit, dated July 28, 1980, and reported at
628 F.2d 801 Al
JOINT APPENDIX
Chronological List of Relevant Docket Entries
January 29, 1974 —Plaintiffs’ Complaint filed in the
New Jersey Superior Court, Law
Division, Essex County.
March 14, 1974 —Defendant’s answer filed.
April 1, 1974 —Petition for Removal, Removal Bond
and Notice of Removal filed in the
United States District Court for the
District of New Jersey.
July 15, 1975 —Depositions of plaintiffs Walter and
Susan Cohn taken July 25, 1974, filed.
July 18, 1975 —Defendant’s Notice of Motion for
summary judgment filed.
September $%, 1975 —Hearing on defendant’s motion for
summary judgment.
March 22, 1978 §—District Court opinion, holding that
N.J.S.A, 2A:14-22 is unconstitution-
al, filed. (The opinion is published
at 447 F.Supp. 903).
November 20, 1978—Defendant’s Notice of Motion to
schedule a hearing on the issue of
whether plaintiffs are entitled to
claim the benefit of the “discovery
rule.”
February 12, 1979 —Evidentiary hearing held on dis-
covery rule issue,
2a
Chronological List of Relevant Docket Entries
July 26, 1979 —District Court opinion granting de-
fendant’s motion for summary judg-
ment filed.
August 6, 1979 —Order entered granting summary
judgment in favor of defendant.
August 29, 1979 —District Court opinion and Order
denying plaintiffs’ motion to set
aside the judgment.
August 29, 1979 —Plaintiff’s motion for a new trial
filed.
September 14, 1979—Plaintiff’s Notice of Appeal filed.
October 18, 1979 —Order entered granting defendant’s
application for leave to file a cross
appeal.
July 23, 1980 —Opinion and Judgment of the Court
of Appeals for the Third Circuit.
3a
Plaintiffs’ Complaint, Filed January 29, 1974 in
New Jersey Superior Court, Law Division
SUPERIOR COURT OF NEW JERSEY
Essex County—Law Drvision
. Docket No, L15857-73
Crviz Action
—_-_——
—>
SUSAN COHN and WALTER R. COHN, her husband,
Plaintiff,
vs.
G.D. SEARLE & COMPANY,
Defendant.
An
—
Plaintiffs, Susan Cohn and Walter R. Cohn, residing
at 972 Broad Street, in the City of Newark, County, of
Essex and State of New Jersey, complaining of Defendant
Says:
First Count
1. The defendant is in the business of and manufac-
tured, produced and sold an oral contraceptive pill known
as “Enovid.”
2. The said defendant G.D. Searle & Company, sold and
distributed the said drug under the trade name of “Enovid”
for the purpose and use as a birth control measure.
4a
Plaintiffs’ Complaint Filed January 29, 1974 in
New Jersey Superior Court, Law Division
3. In the Spring of 1963, the plaintiff, Susan Cohn,
did take and use the contraceptive pill known as “Enovid.”
4, That as a result of the taking of the said contraceptive
pill “Enovid” the plaintiff, Susan Cohn, was rendered seri-
ously, grievously and permanently injured; that she re-
quired and will require extensive hospital and other medi-
cal care and attention; that she was and is incapacitated
from attending her usual duties.
5. The negligence of the defendant G.D. Searle & Com-
pany, its servants, agents and/or employees, consisted of
manufacturing, selling and distributing the aforesaid con-
traceptive pill “Enovid” without making proper and suffi-
cient tests to determine the dangers and contraindications
thereof; in failing to adequately warn the public and medi-
cal profession of the dangers and contraindications and
side effects in the use of the aforesaid drug; in failing
to properly inspect the aforesaid drug; in advertising and
recommending the use of the aforesaid drug without suffi-
cient knowledge as to its dangerous propensities; in fail-
ing to properly advertise the aforesaid drug to the public
and medical profession; in representing that the afore-
said drug was safe for use for contraceptive and thera-
peutic purposes, when in fact said drug was unsafe for
such use; that the said defendant had not conducted a
sufficient testing program to determine whether or not
the aforesaid drug was safe for use; that the defendant
knew or should have known, in the exercise of reasonable
diligence that said drug was unsafe and unfit for use by
reason of their dangerous side effects, contraindications and
insufficient testing; and that the said defendant was other-
5a
Plaintiffs’ Complaint Filed January 29, 1974 in
New Jersey Superior Court, Law Division
wise negligent and careless in the premises; the said de-
fendant produced a drug which was not of a merchant-
able quality and not fit for the particular use as prescribed
said use being warranted as to its merchantability and
quality by the producer.
Wuererors, Judgment will be claimed against the de-
fendant for damages and costs of suit.
Seconp Count
1. The plaintiff repeats each and every allegation con-
tained in the First Count as though fully set forth at
length herein.
2. The said defendant herein represented and war-
ranted that the aforesaid drug sold under the trade name
of “Knovid” was safe and fit for use as a birth con-
trol and therapeutic drug; that it was of merchantable
quality and did not produce any side effects dangerous
to life and limb.
8. That in fact the aforesaid representations and war-
ranties were false and untrue in that the said “Enovid”
was not safe or fit for use as a birth control or thera-
peutic drug; that it was not of merchantable quality and
in fact produced serious side effects and that it was con-
traindicated for certain people and was otherwise dan-
gerous and unsafe,
4. That as a result of the aforementioned breach of
warranty and breach of its representations, the plaintiff
suffered serious and permanent damages.
6a
Plaintiffs’ Complaint Filed January 29, 1974 in
New Jersey Superior Court, Law Division
Wuenrerore, Judgment will be claimed against the de-
fendant for damages and costs of suit.
Tuirp Count
1. The plaintiff repeats the allegations contained in the
First Count and the Second Count as though fully set
forth at length herein.
2. That by reason of the foregoing, the defendant G.D,
Searle & Company, has violated statutes, codes, laws, ordi-
nances aud is liable to the plaintiff herein by reason
of such statutory violations.
3. That by reason of the foregoing the plaintiff has
been damaged and suffered severe and permanent injuries.
Wuererore, Judgment will be claimed against the de-
fendant for damages and costs of suit.
Fourts Count
1. Plaintiff repeats the allegations contained in the
First, Second and Third Counts as though fully set forth
at length herein.
2. That by reason of the foregoing, the defendant, G.D.
Searle & Company, is liable to the plaintiff herein under
the Doctrine of Strict Liability.
8. By reason of the foregoing, the plaintiff has sus-
tained damages and suffered severe and permanent in-
juries.
Ta
Plaintiffs’ Complaint Filed January 29, 1974 in
New Jersey Superior Court, Law Division
Wuererore, Judgment will be claimed against the de-
fendant for damages and costs of suit.
Firta Count
1. Plaintiff, Walter R. Cohn, was and still is the hus-
band of the plaintiff, Susan Cohn.
2. That the said plaintiff, Walter R. Cohn, repeats all
the allegations contained in the First, Second, Third and
Fourth Counts as though fully set forth at length herein.
3. By reason of and as a result of the foregoing,
the said plaintiff, Walter R. Cohn, was and is deprived
of the services, society, consortium and companionship
of the plaintiff Susan Cohn, and was caused to expend
various and divers sums of money in an effort to cure
the plaintiff, Susan Cohn, of her injuries and will be
required to expend further sums of money in the future
for said cure for the plaintiff, Susan Cohn, and this plain-
tiff was otherwise damaged.
Wuererore, Judgment will be claimed against the de-
fendant for damages and costs of suit.
Water R. Conn
Attorney for Plaintiff and Pro Se
8a
Defendant’s Answer, Filed March 14, 1974 in
New Jersey Superior Court, Law Division
[Carrion Omitrep In PrintING]
The defendant, G. D. Searle & Co., by its attorneys,
Shanley & Fisher, Esqs., answers the Complaint and says:
First Count
1. The defendant admits the allegations contained in
paragraphs 1 and 2 of the First Count.
2. The defendant is presently without knowledge or in-
formation sufficient to form a belief as to the truth of the
allegation contained in paragraph 3 of the First Count.
3. The defendant denies the allegations contained in
paragraphs 4 and 5 of the First Count.
Seconp Count
1, The defendant repeats and reiterates its answers to
the allegations contained in the First Count as if the same
were set forth at length herein.
2. The allegations contained in paragraph 2 of the Sec-
ond Count are legal conclusions and, as such, are denied
by the defendant.
8. The defendant denies the allegations contained in
paragraphs 3 and 4 of the Second Count.
9a
Defendant’s Answer, Filed March 14, 1974 in
New Jersey Superior Court, Law Division
Turmp Count
1. The defendant repeats and reiterates its answers to
the allegations contained in the First and Second Counts
as if the same were set forth at length herein.
2. The defendant denies the allegations contained in
paragraphs 2 and 3 of the Third Count.
Fourta Count
1. The defendant repeats and reiterates its answers to
the allegations contained in the First, Second and Third
Counts as if the same were set forth at length herein.
2. The defendant denies the allegations contained in
paragraphs 2 and 3 of the Fourth Count.
Firtrn Count
1. The defendant is without knowledge or information
sufficient to form a belief as to the truth of the allegations
contained in paragraph 1 of the Fifth Count.
2. The defendant repeats and reiterates its answers to
the allegations contained in the First, Second, Third and
Fourth Counts as if the same were set forth at length
herein.
38. The defendant denies the allegations contained in
paragraph 3 of the Fifth Count.
10a
Defendant’s Answer, Filed March 14, 1974 in
New Jersey Superior Court, Law Division
First Separate Derense
The claim set forth in the Complaint is barred by the
Revised Statutes of the State of New Jersey, more par-
ticularly, the Statute of Limitations, as said suit was not
filed within the time period allowed by said statute.
Seconp Separate DEFENSE
Any injury or damage which the plaintiff may have sus-
tained was due to the act or acts of a third person or per-
sons over whom the defendant had no control.
Tarp Separate Derense
Defendant, G. D. Searle & Co., violated no duty which
may have owed to the plaintiffs.
Fourrn Separate Derense
Defendant, G. D. Searle & Co., denies that it breached
any expressed or implied warranty.
Firre Separate Derense
Service of process was improper as provided, and as
such this Court has no jurisdiction over defendant, G. D.
Searle & Co.
lla
Defendant’s Answer, Filed March 14, 1974 in
New Jersey Superior Court, Law Division
Srxro Separate Derense
Defendant, G. D. Searle & Co., further states that the
product Enovid was and has been formulated, tested,
manufactured, processed and labeled by the defendant,
G. D. Searle & Co., in accordance with the provisions of
the Federal Food, Drug and Cosmetic Act and regulations
promulgated pursuant thereto.
SeventH Separate DeFrense
Defendant, G. D. Searle & Co., further states that the
female plaintiff had a significant premonitory medical his-
tory which is the causative fact for her alleged illness, and
it occurred only coincidentally, if at all, with her alleged
use of Enovid.
E:cutrsa Serarate Derense
Defendant, G. D. Searle & Co., further states that the
female plaintiff’s alleged injury is wholly unrelated to her
alleged use of Enovid, or that the alleged injury resulted
from acts or occurrences for which this defendant is not
liable or responsible.
Jury DEMAND
The defendant, G. D. Searle & Co., demands a trial by a
jury of twelve (12) on all the issues involved herein.
12a
Defendant’s Answer, Filed March 14, 1974 in
New Jersey Superior Court, Law Division
DEMAND FoR STATEMENT OF DAMAGES
The defendant, G. D. Searle & Co., demands a written
statement of damages, within five (5) days, as provided
by the Rules of Court.
Suantey & FisHer
Attorneys for Defendant
G. D. Searle & Co.
By /s/ Raymonp M. Tierney, Jr,
13a
Defendant’s Notice of Motion for Summary Judgment,
Filed July 18, 1976 in the United States District Court
[Carrion Omitrrep 1n Paintine)}
Sins:
Pease TAKE Notice that on the 8th day of September,
1975, at 10:00 a.m. in the forenoon or as soon thereafter
as counsel may be heard, the undersigned, attorneys for
defendant, G. D. Searle & Co., will move before the Honor-
able H, Curtis Meanor, Judge of the United States Dis-
trict Court for the District of New Jersey, at the Court
House and Post Office Building in Newark, New Jersey,
for an order granting said defendant summary judgment
and dismissing the complaint, with prejudice, on the
grounds that this action is barred by the applicable Statute
of Limitations, 2A N.J.S.A. 14-2.
PLEASE TAKE FURTHER Notice that reliance will be placed
upon the brief annexed hereto, the depositions conducted
in this action and the plaintiffs’ answer to interrogatories.
Suaniey & Fisner
Attorneys for Defendant
By Raymonp M, Tierney, Jn.
l4a
Excerpts from Plaintiffs’ (First) Brief, Submitted to the
United States District Court
* * * Both plaintiffs Cohn, had become aware in or around
1970, that there was a possible connection between the
taking of the “Enovid” and the C.V.A. However, plaintiff,
Walter Cohn, as an Attorney, was not prepared at that
point to bring suit on mere speculation. Both plaintiffs
Cohn, diligently endeavored to establish a concrete casual
link between “Enovid” and the C.V.A. of Susan Cohn, It
was not until late 1973 however that plaintiff Walter Cohn,
in his position as an Attorney, became convinced that the
information that he had amassed, along with medical opin-
ions of doctors, amounted to concrete evidence linking the
taking of the “Enovid” to plaintiff Susan Cohn’s C.V.A,
The Lopez Court noted that in certain situations it may
be unjust to hold liability long after the alleged injury has
occurred, as years of fading memories and lost witnesses
may severely prejudice a defendant. (at 62 N.J. 275). Such
is indeed not the instant case. The evidence linking “Eno-
vid” to the C.V.A. of Mrs. Cohn, has only quite recently
come to light. The Lopez Court at 276, mandated that:
“.,. All relevant facts and circumstances, should be
considered. The determinative factors may include
but need not be limited to, the nature of the alleged
injury, the availability of witnesses and written
evidence, the length of time that has elapsed since
the alleged wrongdoing, whether the delay has been
to any extent deliberate or intentional, whether the
delay may be said to have peculiarly or unusually
prejudiced the defendant. The burden of proof will
rest upon the party claiming the indulgence of the
rule.” (Footnote omitted)
15a
Excerpts from Plaintiffs’ (First) Brief, Submitted to the
United States District Court
The instant situation is completely within the guidelines
of the Lopez Court decision. The CVA of plaintiff, Susan
Cohn, occurred at a time when she was in otherwise perfect
health. The seriousiness of her injuries could not very
well have been attributed to the “Enovid” without concrete
evidence. It was not until the latter portion of 1973 how-
ever that the medical evidence linking “Enovid” to the oc-
currence of CVA’s came to light. Following the strength
of this evidence, suit was filed with dispatch, The delay in
filing suit from the time of the CVA was due solely to the
lack of concrete evidence, and not due to any kind of con-
cealment of evidence by the plaintiffs. Any delay in start-
ing suit cannot be said to prejudice the defendant in any
manner. Had defendant exercised greater care, and had
defendant disclosed information known to it to both the
public and the medical profession, regarding the possible
hazardous effects of its “Enovid” product, and been more
diligent in its testing procedures, it is possible plaintiffs
could have discovered the cause of Susan Cohn’s CVA
prior to the latter portion of 1973. However due to the
lack of definitive research and definitive medical opinion
prior to the latter portion of 1973 it was not possible for
the plaintiff to bring suit against defendant Searle on any-
thing more than conjecture and weak opinion.
l6a
Excerpts from Plaintiffs’ (Third) Brief Submitted to the
United States District Court
LeaaL ArnGuMENT
Port I
Wuere Puarirr’s Discovery or a Cavsa Connecrion
Berween Insuny anv Favuvr Pre-Dares on Corscroes Wirn
Piantive’s Disapmurry as THat Term 1s Usep my NwWJS.A,
2A:14-21), rue Stature or Limrrarions 13 Totuep Unru.
Svo# Time as true Disapmiry 1s Remove.
Plaintiffs allege that Susan Cohn’s use of the drug manu-
factured by Defendant was the cause of her injury which
resulted in the cerebral vascular accident (C.V.A.) and sub-
sequent paralysis of her left side, arm and leg. Plaintiffs
contend that there exists a causal connection between the
injury sustained and the ingestion of Defendant's drug,
and that the date of the discovery of the causa! connection
was during the last months of 1969, The C.V.A, occurred
on December 22, 1963, The Complaint was filed January
29, 1974, clearly over two years after the injury. Notwith-
standing the dictates of N.J.S.A. 2A :14-2, which prescribes
the two year limitation for commencement of negligence
actions, Plaintiffs argue that this Court should invoke the
equitable discovery rule enunciated in Lopez v. Swyer, 62
N.J. 267, 300 A.2d 563 (19738) and its progeny.
The rule is now well settled in New Jersey that the two-
year Statute of Limitations on a medical malpractice action
eee
” . 7
Now it was not until the latter part of 1973 that I
was able to talk to her about it. And she did give
me consent to file the lawsuit at that time.”
(Transcript from Hearing Before Trial, February
12, 1979, Page 58, Line 1.)
17a
Excerpts from Plaintiffs’ (Third) Brief Submitted to the
United States District Court
For the purposes of this Brief, Plaintiffs’ assume this
Court will accept the contention that discovery occurred in
1969-1970, The issue then crystalizes into whether or not
Plaintiffs’ suit should be barred for failure to bring the
lawsuit within two years of the date of discovery.
Plaintiffs allege that on or about the date of discovery,
Susan Cohn was suffering from a severe depression. As a
direct consequence of her depression she was undergoing
classical symptoms of denial of her illness (See testimony
of Walter R. Cohn, February 12, 1979, p. 69), which was
characterized by an adamant hostility toward any discus-
sion of the events surrounding it. At that time, her state
of mind was one of severe depression, as evidenced by the
reports of her doctors which are in Evidence,
Plaintiffs contend that Susan Cohn’s state of mind con-
stitutes a disability which should serve to toll the statute
of limitations, Reliance is placed upon Kyle v. Green Acres
at Verona, Inc., 44 N.J. 100, 207 A.2d 513 (1965). In Kyle
the Plaintiff fell on Defendant’s icy sidewalk and sustained
a fractured hip, After release from hospitalization for her
hip injury she was admitted to a nursing home, From there
18a
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
APPENDIX
Pursuant to the trial court’s request, defendant sub-
mitted a state by state analysis of the effect of an absent
defendant’s continued amenability to service of process
upon a state’s tolling provision, The states which follow
the majority position, that a statute of limitations is not
tolled by the defendant’s absence when the defendant re-
mains amenable to service of process, are:
ALABAMA!
Peters y. Tuell Dairy Co., 250 Ala. 600, 35 So.2d 344
(1948); Dedmon vy, Falls Products, Ine., 299 F.2d 173
(Sth Cir 1962).
ALASKA:
Byrne y. Ogle, 488 P. 2d 716 (Ala. 1971),
Anizona:
Phillips v. Anchor Hocking Glass Corp., 100 Ariz, 251,
413 P.2d 732 (1966); Hawkinson Tire Co. v. Paw EB,
Hawkinson Co., 13 Ariz. App. 343, 476 P.2d 864, affd.,
107 Ariz, 255, 485 P.2d 825 (1970); Selby v. Kurman,
110 Ariz, 522, 521 P.2d 609 (1974).
CALIFORNIA!
Bigelow v. Smik, 6 C.A, 3d 10, 85 Cal. Rptr. 613
(1970); Raynolds v. Volkswagenwerk Aktiengesell-
schaft, 275 C.A, 2d 997, 80 Cal. Rptr. 610 (1969) ; Rios
v. Torvald Klaveness, 2 C.A. 3d 1077, 88 Cal. Rptr. 150
(1969).
19a
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
CoLorapo:
Norton v. Dartmouth Skiis, Inc., 147 Col, 486, 364 P.2d
866 (1961) (where the Court held that a foreign, non-
resident corporation that was not registered to do
business in Colorado was nevertheless present because
of its salesmen in the state and could successfully
plead the statute of limitations).
ConNnrEcTICUT :
Coombs v. Darling, 116 Conn, 648, 166 A.70 (19383) ;
Kilburn v. Keenan, 27 Conn, Sup. 394, 240 A.2d 213
(1967).
DELAWARE:
Hurwitch v. Adams, 52 De}. 18, 151 A.2d 286 aff’d., 52
Del, 247, 155 A.2d 591 (1959).
Fiona:
Friday v. Newman, 183 So0.2d 25 (Fla, App. 1966);
cert, dism. 189 Co, 2d 629 (Fla. (1967).
Grorata:
Railey v. State Farm Mutual Auto, Ins., 129 Ga. App.
875, 201 S.K. 2d 628 (1973).
Tpano:
Lipe v. Javelin Tire Co., Inc., 96 Idaho 7238, 536 P.2d
291 (1975).
20a
State by State Analysis of Law, Submitted by Defendant
; at Request of United States District Court
ILLINo!s:
, Nelson, v. Richardson, 295 Tll. App. 504, 15. N.E.2d 17
(1938); Rivera v. Taylor, 61 Ill. 2d 406, 336, N.E.2d
481 (Ill. 1975).
INDIANA: ;
American States Insurance Co. v. Williams, 29 Ind.
Dec. 135, 278 N.E. 2d 295 (1972).
Towa:
Rorenge v. Holthaus, 243 Iowa 571, 52 N.W. 2d- 711
(1952) ; Fulmer v. Debel, 216 N.W. 2d 789 (Iowa 1974).
Kansas:
Bond v. Golden, 273 F.2d 265 (10th Cir. 1959).
MARYLAND:
. Jolivet v. Elkins, 386 F. Supp. 261 (D. Md. 1974)
(where the district court indicated that since the de-
fendant individuals were subject to long-arm service,
the tolling statute would not apply).
MASSACHUSETTS :
Walsh v. Ogorzalek, 361 N.E. 24 1247 (Mass. 1977)
MICHIGAN:
_ ., Hammell v. Bettison, 362 Mich. 396, 107 N.W. 24.887
(1961); Melwille v. Kelleher, 22 Mich. App. 251,-177
~< NUW. 24 238 (1970);
2la
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
MinNEsOTA:
Long v. Moore, 295 Minn. 266, 204 N.W. 2d. 641
(1973).
MississiPrt:
Dent v. Jones & Pintard, 50 Miss, 265 (1874) (“if
process can be served, absence should not be deducted
to save the bar of the statute.”)
Missouri:
Haver v. Basset, 287 S.W.2d 342 (Mo. App. 1956).
MonTANA:
Baker v. Ferguson Research Inc., 61 F.R.D. 637 (D.
Mont. 1974).
NEBRASKA:
Gatliff v. Little Audrey’s Transportation Co., Inc., 317
F. Supp. 1117 (D. Neb. 1970).
NEVADA:
Cal-Farm Insurance Co. v. Oliver, 78 Nev. 479, 375
P.2d 857 (1962); Blotzke v Christmas Tree, Inc., 88
Nev. 449, 499 P.2d 647 (1972).
New HAMpsHIRE: :
Bolduc v. Richards, 101 N.H. 303, 142 A.2d 156 (1958) ;
Hatch v. Hooper, 101 N.H. 214, 138 A.2d 671 (1958).
22a
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
New Mexico:
Benally v. Pigman, 78 N.M. 189, 429 P.2d 648 (1967).
New York:
Yarusso v. Arbotowicz, 41 N.Y.2d 516, 362 N.E.2d 600
(1977).
Nortu Caro.ina}
Volivar vy. Richmond Cedar Works, 152 N.C. 656, 68
S.E. 200 (1910) (if a personal judgment can be ob-
tained against a foreign corporation then such cor-
’ poration is not equal to a non-resident); Smith v.
Finance Co. of America, 207 N.C. 367, 177 S.E. 183
(1934) (where a non-resident, foreign corporation not
registered to do business was effectively served by
service upon the Secretary of State, the tolling pro-
vision was in inapplicable). Check 224 S.E. 243, 2d
226 S.E. 513; 221 S.E. 2d 895.
Ox10:
Partis vy. Miller Equipment Co., 324 F. Supp. 898
(N.D. Ohio 1970), aff’d., 439 F.2d 262 (6th Cir. 1971).
OKLAHOMA:
Walker v. L.E. Meyers Construction Co., 175 Okla.
548, 53 P.2d 547 (1938); Jarchow v. Eder, 433 P. 2
942 (Okla. 1967).
OreEcon:
Whittington v. Davis, 221 Or. 209, 350 P.2d 913 (1960) ;
Winters v. Jacobsen, 221 Or. 214, 350 P.2d 1078
(1960).
22a
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
New Mexico:
Benally v. Pigman, 78 N.M. 189, 429 P.2d 648 (1967).
New York:
Yarusso v. Arbotowicz, 41 N.Y.2d 516, 362 N.E.2d 600
(1977).
Nortu Caro.ina?
Volivar vy. Richmond Cedar Works, 152 N.C. 656, 68
S.E. 200 (1910) (if a personal judgment can be ob-
tained against a foreign corporation then such cor-
poration is not equal to a non-resident); Smith v.
Finance Co. of America, 207 N.C. 367, 177 S.K. 183
(1934) (where a non-resident, foreign corporation not
registered to do business was effectively served by
service upon the Secretary of State, the tolling pro-
vision was in inapplicable), Check 224 S.E. 243, 2d
226 S.E. 513; 221 S.E. 2d 895.
Onto:
Partis y. Miller Equipment Co., 324 F. Supp. 898
(N.D. Ohio 1970), aff’d., 489 F.2d 262 (6th Cir. 1971).
OKLAHOMA:
Walker v. L.E. Meyers Construction Co., 175 Okla.
548, 53 P.2d 547 (1938); Jarchow v. Eder, 433 P. 2
942 (Okla. 1967).
Orecon:
Whittington v. Davis, 221 Or. 209, 350 P.2d 913 (1960) ;
Winters v. Jacobsen, 221 Or. 214, 350 P.2d 1078
(1960).
23a
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
PENNSYLVANIA:
Will v. Malosky, 432 Pa. 240, 247 A.2d 788 (1968).
Sovutn Dakota:
Busby v. Shafer, 75 S.D. 428, 66 N.W. 2d 910 (1954).
TENNESSEE:
Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.
2d 566 (1938); Young vy. Hicks, 250 F.2d 80 (8th Cir.
1957).
Uran:
Snyder vy. Clune, 15 Utah 2d 254, 390 P.2d 915 (1964).
VERMONT:
Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189 (1974);
Law’s Admir. v. Culver, 120 Vt. 285, 155 A.2d 885
(1959).
VircInia :
Bergman v. Turpin, 206 Va. 539, 145 S.E.2d 135 (1965).
WASHINGTON :
Smith v. Forty Million, Inc., 64 Wash. 2d 912, 395
P.2d 201 (1964); Summerrise v. Stephens, 75 Wash.
2d 808, 454 P.2d 224 (1969).
West Vircrnia:
Kisner y. Fiori, 151 W.Va. 850, 157 S.E.2d 238 (1967)
(where the Court in determining whether the state
24a
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
Non-resident Motorist Statute applied prospectively
assumed that had it so applied the tolling statute
would not have been applicable to the nonresident,
individual who had an automobile accident within the
state.).
WISCONSIN:
Wisc. Stat. Ann. §893.30 (1969) effectively overruled
the old case of Bode v. Flynn, 213 Wis. 509, 252 N.W.
284 (1934).
Wyomine:
Tarter v. Insco, 550 P.2d 905 (Wyo. 1976)
Only four states continue to adhere to the view that
where a nonresident defendant individual is amenable to
service of process such defendant may not plead the bar
of the statute of limitations. These states are:
New JERSEY:
Lemke v. Bailey, 41 N.J. 295, 196 A.2d 523 (1963).
Ox10:
Couts v. Rose, 152 Ohio St. 458, 90 N.E.2d 139 (1950).
However, the Ohio courts have taken a different ap-
proach to corporations. See Partis v. Miller Equip-
ment Co., swpra.
Sourn CaRoLina:
Macri v. Flaherty, 115 F. Supp. 739 (E.D.S.C. 1953).
25a
State by State Analysis of Law, Submitted by Defendant
at Request of United States District Court
Texas:
Dietz v. Vaughn, 423 S.W. 2d 113 (Civ. App. 1967),
aff’d., 403 S.W. 2d 487 (Tex. 1968).
Of the remaining states and the District of Columbia
in which tolling statutes are in effect, the statutes in force
in the District of Columbia, and Kentucky are inapplicable
to nonresidents. Those states’ statutes only apply to de-
fendants who are residents at the time the cause of action
accrues and subsequently leave the state or conceal them-
selves within it. The Arkansas provision specifically pro-
vides that “[T]his act and all other acts of limitations
shall apply to non-residents, as well as to residents of this
State.” Ark. Stat. Ann. §37-230. In the following states
there exist tolling statutes, but either no or insufficient case
law exists to adequately determine how these states would
construe their tolling statutes: Hawaii, Maine, North Da-
kota, and Rhode Island. We could find no statute or case
dealing with the subject at hand from Louisiana.
26a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
UNITED STATES DISTRICT. COURT
Disrricr or New JERSEY
Crvm Action No. 74-450
s
—
SUSAN COHN and WALTER COHN, her husband,
Plaintiffs,
Vv.
G. D. SEARLE & COMPANY,
Defendant.
»
a
Appearances :
Walter R. Cohn, Esq.
Attorney for Plaintiffs.
Shanley & Fisher, Esqs.
Attorneys for Defendant.
By: Raymond M. Tierney, Jr., Esq.
Robert L. Dughi, Esq.
Meanor, District Judge.
This matter comes before the court on defendant’s mo-
tion for summary judgment. For reasons stated herein-
after, the issues presented by this motion will be treated
27a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
in two stages. This first opinion is addressed to the ques-
tion whether the defendant is entitled to the benefit of the
statute of limitations. The resolution of the issue turns
on the construction and application of the New Jersey toll-
ing statute to a foreign unlicensed corporate defendant
which, from the time of the occurrence of the injury al-
leged in the instant complaint, had no formal presence
within New Jersey yet remained amenable to long-arm
service.
If it is determined that the defendant has available to it
the defense of the statute of limitations, then it will be
necessary to decide whether the plaintiffs are entitled to
the “discovery” exception to strict application of the stat-
ute.
Plaintiffs Susan and Walter Cohn have brought this suit
against G. D. Searle & Co. (hereinafter “Searle”), the
manufacturer of the oral contraceptive Enovid, for per-
sonal injury and per quod damages allegedly resulting
from Mrs. Cohn’s use of the drug. Mrs. Cohn commenced
taking the contraceptive in the spring of 1963 and con-
tinued its use until December 22, 1964. On that date she
suffered a stroke, or cerebral vascular accident (C.V.A.),
when a blood clot lodged in the circulatory system of her
brain. The C.V.A. required surgery, long hospitalization
and rehabilitative therapy and resulted in permanent physi-
From the sparse information before me at this time it
appears that in 1964 little or nothing was known about
potential coagulant side effects of oral contraceptives.
However, from at least 1966 the medical literature and the
lay press increasingly reported work which suggested a
28a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
relationship between oral contraceptives and abnormal
blood clotting. Sometime between 1966 and late 1973 the
Cohns became aware of the possible link between Mrs.
Cohn’s C.V.A. and ingestion of Enovid. They initiated
suit against Searle on January 29, 1974. Their complaint,
predicated on theories of negligence, breach of warranty,
statutory violations and strict liability, was filed in the
Superior Court of New Jersey, Law Division, Bergen
County. Service was effected on Searle under the long-
arm rule. On April 1, 1974 the case was removed to this
court pursuant to 28 U.S.C. § 1441. Jurisdiction is vested
under 28 U.S.C. § 1332.
At all times relevant to this action the plaintiffs have
been residents of New Jersey. Searle is a Delaware cor-
poration with its principal place of business in Illinois.
Prior to December 30, 1960 Searle was registered to do
business in New Jersey, but on that date it formally with-
drew from the state. However, from 1964 to 1974, the
period between Mrs. Cohn’s C.V.A. and the filing of the
instant complaint, Searle retained in its employ some four
dozen persons known as Medical Service Representatives
or “detailmen” who worked and, in most cases, resided in
New Jersey. The function of these detailmen was to call
on physicians to discuss Searle’s pharmaceutical products.
Searle moves for summary judgment on grounds that
plaintiff’s cause of action is time-barred under the rele-
vant two-year statute of limitations, N.J.S.A. 2A:14-2
(1952). Searle Acknowledges that plaintiffs may have
1N.J.S.A. 2A:14-2 provides:
Every action at law for an injury to the person caused
by the wrongful act, neglect or default of any person within
this state shall be commenced within 2 years next after
the cause of any such action shall have accrued.
29a,
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
some relief from the strict two-year limit under the New
Jersey “discovery” rule. Fernandi vy. Strully, 35 N.J. 434
(1961) ; Lopez v. Swyer, 62 N.J. 267 (1973). Nevertheless,
Searle asserts that the Cohns had reason to know of the
cause of action against Searle no later than 1970, and,
therefore, their claims are precluded.
Plaintiffs respond that their action is timely because the
causal relationship between contraceptives and clotting
was not definitively demonstrated until late 1973, and that
in any case the New Jersey tolling statute, N.J.S.A. 2A:14-
22 (1952),? deprives Searle of the statute of limitations
2N.J.S.A. 2A:14-22 provides:
If any person against whom there is any of the causes
of action specified in sections 2A:14-1 to 2A:14-5 and 2A:
14-8, or if any surety agains: whom there is a cause of
action specified in any of the sections of article 2 of this
chapter, is not a resident of this state when such cause
of action accrues, or removes from this state after the ac-
crual thereof and before the expiration of the times limited
in said sections, or if any corporation or corporate surety
not organized under the laws of this state, against whom
there is such a cause of action, is not represented in this
state by any person or officer upon whom summons or
other original process may be served, when such cause of
action accrues or at any time before the expiration of the
times so limited, the time or times during which such per-
son or surety is not residing within this state or such corp-
oration or corporate surety is not so represented within
this state shall not be computed as part of the periods of
time within which such an action is required to be com-
menced by the section. The person entitled to any such
action may commence the same after the accrual of the
cause therefor, within the period of time limited therefor
by said section, exclusive of such time or times of non-
residence or nonrepresentation.
30a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
because Searle is a foreign corporation not represented
within the state by “any person or officer” upon whom
process could be served within the meaning of the tolling
statute. Searle retorts that the tolling statute is inappli-
cable because Searle was effectively represented within the
state by its detailmen, or alternatively, by virtue of the
fact that from the date of the C.V.A. onward it was sub-
ject to New Jersey long-arm jurisdiction. Finally, if the
tolling statute, as interpreted by the New Jersey courts,
is deemed to apply to a foreign corporation amenable to
long-arm service, Searle asserts that the statute as applied
violates the equal protection and due process clauses of
the United States Constitution. Thus, the questions pre-
sented by this motion are whether Searle is entitled to the
benefit of the statute of limitations, and if so, whether the
plaintiffs’ action is timely upon application of the “dis-
covery” rule even though the instant complaint was filed
over nine years after the injury to Mrs. Cohn. I shall con-
sider the statute of limitations issue here. Because I find
Searle is entitled to a statute of limitations defense, I must
reach the second question, but I leave it for another day.®
8 The parties are still negotiating over the terms of a submission,
if necessary, on the discovery issue. In the New Jersey courts
resolution of that issue would take place without a jury, Lopez
v. Swyer, supra, but here jury trial exists as a matter of right.
Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir. 1976).
I understand that the parties are willing to submit the discovery
question to me on the existing written record without an evi-
dentiary hearing and, of course, without jury trial. I am _ will-
ing to accept it on that basis. However, I am informed that the
defendant seeks to exact from the plaintiffs an agreement that
(Footnote continued on following page)
3la
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
At the heart of the issue of whether Searle has a statute
of limitations defense is the construction and application
of the tolling statute. N.J.S.A. 2A:14-22 provides in rele-
vant part:
If any person against whom there is any of the
causes of action specified in sections 2A:141 to
2A :14-5 and 2A:14-8 ... is not a resident of this
state when such cause of action accrues, or removes
from this state after the accrual thereof and before
the expiration of the times limited in said sec-
tions, or if any corporation ... not organized under
the laws of this state, against whom there is such
a cause of action, is not represented in this state
by any person or officer upon whom summons or
or other original process may be served, when such
cause of action accrues or at any time before the
expiration of the times so linuted, the time or
times during which such person . . . is not residing
within this state or such corporation ...is not so
represented within this state shall not be computed
as part of the periods of time within which such
an action is required to be commenced by the sec-
tion. The person entitled to any such action may
commence the same after the accrual of the cause
(Footnote continued from preceding page)
any facts found as a result of such a submission of the isst:e be
reviewed on appeal by the “clearly erroneous” standard of Rule
52(a), F.R.Civ.P., rather than to permit the Court of Appeals
to review such fact determinations without the constraints of the
clearly erroneous standard. See Government of Virgin Islands
v. Gereau, 523 F.2d 140, 145-146 (3d Cir. 1975).
32a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
therefor, within the period of time limited therefor
by said section, exclusive of such time or times of
nonresidence or nonrepresentation.
(Emphasis supplied.) The statute exempts from its effect
foreign corporations represented in the state by “any per-
son or officer” upon whom process may be served.
It is undisputed that Searle has had no statutory or
appointed agent in New Jersey at any time from the
date of Mrs. Cohn’s C.V.A. Nevertheless, Searle first
argues that it is within the foreign corporation exception
because it was represented by detailmen who are “per-
sons or officrs” within the meaning of the tolling statute.
The rules pertaining to service on foreign corporations
from the date of Mrs. Cohn’s injuries are R.R. 4:4-4(d)
(effective Sept. 3, 1958) and its successor R. 4:4-4(c) (1)
(effective Sept. 8, 1969) (current version). Searle notes
that under these rules jurisdiction may be obtained over
a foreign corporation “by serving any servant of the cor-
poration within this state acting in the discharge of his
duties.” Searle argues that the tolling statute must be
construed to be consistent with the service rules during
the time period relevant to this action, and since personal
jurisdiction could have been obtained over Searle by serv-
ing a detailman in the discharge of his duties, representa-
tion by detailmen during the period was sufficient to stay
the tolling of the statute of limitations.
Searle’s argument is not persuasive for two reasons.
First, Searle’s proposed construction of the foreign cor-
poration exception to the tolling statute is inconsistent
with the manifest purpose of the statute itself. That
enactment was intended to protect plaintiffs in New Jersey
33a
First Opinion of the United States District Court for the
District of New Jersey, Féled March 22, 1978
courts™ by preserving their causes of action where serv-
ice could not be had upon a defendant on account of ab-
sence from the state. Lemke vy. Bailey, 41 N.J. 295, 303
(1963) (Schettino, J., dissenting); Ferraro v. Ferro Truck-
ing Co., 72 N.J. Super. 519, 524 (Law Div. 1962). Searle’s
detailmen operated out of their homes because Searle
had no office within this state. They reported to Searle’s
office in Skokie, Illinois. Their function was to talk to
New Jersey doctors about Searie’s products to advertise
them and generate good wiil for the company. Searle
does not assert that they had any power to make contracts
or place orders, Thus, the detailmen had minimal asso-
ciation with Searle in the public eye and had very limited
authority to act on behalf of the company. It is incon-
ceivable, in light of the purpose of the tolling statute,
‘at the legislature intended to give the benefit of the
statute of limitations to a foreign corporate defendant
whose only representation within the state was by em-
ployees so invisible as these.
The second reason that Searle’s rationale is not con-
vincing is that it incorporates into the tolling statute
changes in the law which were made after the act’s
passage. Narrowly drawn statutory language must be in-
terpreted from the intent of the legislature in light of
%8 The courts of New Jersey have found that the tolling statute
operates to the benefit of residents and nonresident plaintiffs whose
causes of action have accrued within the state. Goran v. Trade
Bank & Trust Co., 109 N.J.Super. 271 (App. Div. 1970); Marsh
v. Davis, 99 N.J.Super. 130 (Law Div. 1968). However, in a
subsequent opinion which failed to mention Goran the Third Cir-
cuit has held that the tolling statute protects only New Jersey
residents. Zelson v. Thomforde, 428 F.2d 1360 (3d Cir. 1970).
34a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
circumstances at the time of enactment. 2A Sutherland,
Statutory Construction 4 49.02 (4th Ed. 1873). “A new
meaning may not be given the words of an old statute in
consequence of changed conditions probably not foreseen
by the Legislature.” Fidelity Deposit Co. of Maryland
v. Abagnale, 97 N.J.Super. 132, 143-44 (Law Div. 1967).
The present tolling statute has its origins in an enactment
of the Council and General Assembly of New Jersey on
February 21, 1820. The foreign corporations exception
was added by amendment in 1949.4. The only legislative
history relating to the 1949 amendment is the introduc-
tory statement of the bill’s sponsor, Assemblyman Mackey,
which provides:
Foreign corporations licensed to do business in New
Jersey are now deprived by judicial construction
of the benefit of the Statute of Limitations. The
purpose of this bill is to correct that situation. New
York State found it necessary to make a similar
change in its laws in view of recent court decisions.
The import of this statement of legislative purpose is far
frew unambiguous, but it sheds some illumination on the
phrase “any person or officer” as used in the tolling
statute.
An understanding of Mackey’s introductory statement
requires an analysis of the New York law to which it
refers. In 1949 New York’s tolling statute was C.P.A.
§ 19, which had most recently been amended in 1943,
*Act of May 18, 1949, 1949 N.J.Laws, ch. 125 (amending
N.J.R.S. 2:24-7 (1937); current version at N.J.S.A. 2A:14-22),
35a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
Before 1943, § 19 had included an exception® from the
tolling statute for persons or corporations with a desig-
nated agent for the service of process and foreign cor-
porations with officers who might be served within the
state. The 1943 amendment® to § 19 enlarged the excep-
5 Before 1943 C.P.A. § 19 provided in pertinent part:
But this section does not apply while a designation made
in pursuance of law of a resident of the state on whom
a summons may be serve." for another person or corpora-
tion remains in force. Nor does this section apply while
a foreign corporation has had or shall have one or more
officers in the state on whom a summons for such corpora-
tion may be served.
N.Y.C.P.A. § 19 (1920), as amended by Act of Apr. 5, 1928,
1928 N.Y.Laws, ch. 809 (current version at N.Y.Civ.Prac.Law
(McKinney) § 207 (1972)).
®The amendment provided in pertinent part:
But this section does not apply in either of the follow-
ing cases:
1. while a designation or appointment, voluntary or in-
voluntary, made in pursuance of law, of a resident or non-
resident person, corporation, or private. or public officer
on whom a summons may be served within the state for
another resident or nonresident person or corporation with
the same legal force and validity as if served personally
on such person or corporation within the state, remains
in force.
2. while a foreign corporation has had or shall have one
or more officers or other persons in the state on whom a
summons for such corporation may be served.
Act of Apr. 3, 1943, 1943 N.Y.Laws, ch. 263.
36a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
tion to include persons or corporations with agents for
service of process designated by statute or appointment
and foreign corporations with “officers or other persons”
who might be served. The revision notes appended to
the amendment indicate that the foreign corporation ex-
ception was broadened to include persons besides officers
who were servable pursuant to C.P.A. § 229. At that time,
C.P.A. § 229,’ governing service on nonresidents engaging
in business in New York State, permitted service on the
person in charge of any business in which the defendant
was engaged within the state. Interpreting the language
of the 1943 amendment to C.P.A. § 19 in light of C.P.A.
§ 229, it appears that at most the amendment broadened
New York’s foreign corporation exemption to include
companies represented within the state by statutory or
appointed agents, officers or business managers. Since the
New Jersey Legislature intended in 1949 to adopt a tolling
exemption similar to New York’s, the New Jersey Legis-
lature could not have iitended that an employee with no
managerial authority, such as a detailman, could be a
™C.P.A. § 229 at that time provided in pertinent part:
When any natural person or persons not residing in this
state shall engage in business in this state, in any action
against such person or persons arising out of such busi-
ness, the summons may be served by leaving a copy thereof
with the complaint with the person who at the time of
service is in charge of any business in which the defend-
ant or defendants are engaged within this state. .
Act of Apr. 15, 1941, 1941 N.Y.Laws, ch. 455, amending N.Y.C.
P.A. § 229 (1920) (repealed 1962).
37a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
representative sufficient to bring a foreign corporation
out of the tolling statute.*
This conclusion is strengthened by reference to the law
in New Jersey regarding service on foreign corporations at
the time of enactment of the New Jersey foreign corpora-
tion exemption. In 1948, a year before the tolling statute
amendment, the legislature amended N.J.R.S. 2:26-43 and
44° providing for service on corporations. Those amend-
® Mackay’s introductory statement to the 1949 amendment to
the New Jersey tolling statute indicated that New York had amended
its tolling statute in a similar fashion in response to recent court
decisions. Research has disclosed no significant cases prior to
1943 regarding persons through whom a foreign corporation might
be served. However, section 1 of the 1943 amendment to C.P.A.
§ 19, n. 5 supra, was adopted specifically to alter the rule of Ma-
guire v. Yellow Taxicab Corp., 253 A.D. 249, 1 N.Y.S.2d 749,
rehearing denied, 253 A.D. 890, 2 N.Y.S.2d 1021, aff'd mem.,
278 N.Y. 576, 16 N.E.2d 110 (1938), which held that amen-
ability to process through the Director of Motor Vehicles did not
exempt a nonresident defendant from the tolling statute. These
facts suggest that the New Jersey Legislature may well have in-
tended that representation by a statutory agent within the state
would be sufficient to satisfy the tolling statute’s foreign corpora-
tion exemption. Ferraro v. Ferro Trucking Co., 72 N.J.Super.
519 (Law Div. 1962). But see, Whalen v. Young, 28 N.J.Super.
543 (Law Div. 1953), reversed on other grounds, 15 N.J. 321
(1954); Lackovic v. New England Paper Tube Co., Inc., 127
N.J.Super. 394 (Law Div. 1974). Cf. Lemke v. Bailey, supra.
®The 1948 amendment to N.J.R.S. 2:26-43 and 44 (1937)
(repealed 1951) provided:
2:26-43. Domestic corporations in personal actions ; personal
or substituted service of summons.
(Footnote continued on following page)
38a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
ments permitted acquisition of personal jurisdiction over
foreign corporations by service on an officer, director, trus-
tee, managing or general agent or agent by appointment
or by law for the service of process. A detailman with
minimal agency powers could not be considered a manag-
ing or general agent, nor any other individual within the
statutory list. Since in 1949 personal jurisdiction over a
foreign corporation could not have been obtained by serv-
ing a detailman, the legislature could not have intended an
exemption from the tolling provision for an entity repre-
sented by such an employee. Searle urges that N.J.S.A.
2A :14-22 be interpreted as consistent with the rule regard-
(Footnote continued from preceding page)
Service of a summons in a civil action commenced against
a domestic corporation in any of the courts of this State
may be made by delivering a copy thereof to an officer,
director, trustee or a managing or general agent of the
corporation personally, or by leaving a copy thereof at his
dwelling house or usual place of abode with some com-
petent member of his family of the age of fourteen years
or over then residing therein, or by delivering a copy thereof
to any person authorized by appointment or by law to re-
ceive service of process on behalf of the corporation, or
by leaving a copy thereof at the registered office of the
corporation with any person in charge thereof.
2:26-44. Foreign corporations.
Service of a summons in a civil action commenced against
a foreign corporation may be made in the same manner
as is provided in section 2:26-43 of the Revised Statutes
for service of summons upon a domestic corporation.
Act of Sept. 10, 1948, 1948 N.J.Laws, ch. 356.
39a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
ing service of process at the time of plaintiff’s injury. Such
an approach would be inappropriate, however, since the
reach of service was substantially expanded in 1953,
Wright v. News Syndicate Co., Inc., 35 N.J. Super. 133, 135
(Law Div. 1955), a change which the legislature could not
have anticipated in 1949.
Searle next takes the position that because Searle was
at all times relevant to the instant complaint amenable to
long-arm service,’ it was represented within the state
within the meaning of the tolling statute. The effect of
amenability to long-arm jurisdiction on N.J.S.A. 2A :14-22
is a novel question heretofore not considered by the courts.
A number of courts have considered the construction of
the New Jersey tolling provisions in light of a defendant’s
amenability to service through the Director of Motor Vehi-
cles under the nonresident motorist statute, N.J.S.A. 39:
7-2 (1973)."* In leading case, Lemke v. Bailey, supra, the
10New Jersey does not have a long-arm statute because under
the New Jersey Constitution of 1947, the Supreme Court has ex-
clusive rule-making power over practice, procedure and admini-
stration of the courts. Wéinberry v. Salisbury, 5 N.J. 240 (1950).
From 1963 to 1974, long-arm service was available over Searle
pursuant to the court rules. R.R. 4:4-4(d) (effective Sept. 3,
1958); R. 4:4-4(c)(1) (effective Sept. 8, 1969) (current ver-
sion).
11 Holding that amenability to service through the Director of
Motor Vehicles does not entitle a nonresident defendant to the
benefit of the statute of limitat’ons are Gotheiner vy. Lenihan, 20
N.J.Misc. 119, 25 A.2d 430 (Sup.Ct. 1942); Whalen v. Young,
28 N.J.Super. 543 (Law Div, 1953), rev'd on other grounds,
15 N.J. 321 (1954); Lemke v. Bailey, supra; Lackovic v. New
‘England Paper Tube Co., 127 N.J.Super. 394 (Law Div. 1974);
Blackmon v. Govern, 138 F.Supp. 884 (D.N.J. 1956). Contra,
Ferraro v. Ferro Trucking Co., supra.
40a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
New Jersey Supreme Court held that the tolling statute de-
prived a nonresident individual defendant of the benefit of
the statute of limitations even though the defendant had
been subject to service pursuant to N.J.S.A. 39:7-2. Searle
argues that Lemke should not be considered controlling
here because the Supreme Court specifically reserved the
question of the effect of availability of substituted service
upon a corporate defendant, and, in any case, there the
court relied heavily on legislative acquiescence in, and
plaintiffs’ reliance on, prior court interpretation of the re-
lationship betwen 2A:14-22 and 39:7-2, which considera-
tion would be irrelevant to the novel question here pre-
sented. Plaintiffs urge that Lemke should be read broadly
to hold that the statute of limitations does not run against
a nonresident individual, and that Lemke binds the court
here because there is no reason to treat individual and cor-
porate defendants differently.”
12 Plaintiffs cite two cases for the proposition that the tolling
statute deprives a nonresident defendant of a statute of limita-
tions defense despite amenability to substituted service. Kenny
v. Duro-Test Corp., 91 F.Supp. 633 (D.N.Y. 1950); Mann v.
Morristown Memorial Hospital, Civ. No. L-23529-64 (N.J.Super.,
Law Div., filed Aug. 6, 1965, dismissed by consent Mar. 6, 1968).
Neither case supports plaintiffs’ argument. Kenny held that under
the tolling statute a foreign licensed corporation could not plead
the statute of limitations despite the fact that it was servable
within the state. However, the court indicated that the 1949
foreign corporation exemption was only prospective in effect and
therefore inapplicable to that case. Jd. at 635-36.
On the other hand, the facts in Mann do not support the read-
ing that plaintiffs give to its result. Mann was a malpractice
_ (Footnote continued on following page)
4la
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
Amenability to long-arm service cannot be deemed to
constitute representation within the state for the very same
reason that the foreign corporation exemption is not trig-
gered by the presence within the state of servants acting
in the discharge of their duties. The narrow foreign cor-
poration exception must be considered in light of legisla-
tive intent at the time of enactment. The tolling statute
exemption was adopted in 1949. Although the Supreme
Court had held four years earlier that the reach of state
(Footnote continued from preceding page)
action against a hospital and two doctors. The plaintiff was treated
by the defendants until June 1963, when his cause of action ac-
crued. Tortorello v. Reinfeld, 6 N.J. 58, 66 (1950). He filed
his complaint on Aug. 6, 1965. Summary judgment was granted
to two defendants on statute of limitation grounds, but denied
as to Dr. Matthews, who had moved from New Jersey in August
1963 and been served under the long-arm rule. Plaintiffs herein
assert that Matthews had been subject to long-arm service from
the time of his departure, and, therefore, the denial of his mo-
tion for summary judgment represents a holding that the toll-
ing statute always applies to a nonresident defendant despite amen-
ability to substituted service.
However, long-arm jurisdiction was not available against indi-
vidual defendants until January 1964. R.R. 4:4-4(j) (effective
Jan. 2, 1964) (current version at R. 4:4-4(e). Assuming that
the limitations period would ordinarily run during periods of ab-
sence when subject to substituted service, the statute ran against
Matthews for two months in 1963 and then re-commenced to run
in January 1964. By that calculation, the complaint was filed
only some seven months into the limitations period, and the ac-
tion was timely without the aid of the tolling statute. Thus, the
disposition of Matthews’ summary judgment motion does not re-
flect on the relationship between the tolling statute and substi-
tuted service.
42a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
process could constitutionally extend beyond the terri-
torial boundaries of a state, International Shoe Co. v. State
of Washington, 326 U.S. 310 (1945), long-arm service was
not adopted in New Jersey until 1958.’* Further, the New
Jersey courts have tended to construe the tolling statute
narrowly so as not to incorporate subsequent broadening
of the service laws. See, n. 11, swpra. One court has held
in the context of an individual defendant that amenability
to long-arm service does not satisfy the tolling statute.
Fidelity Deposit Co. of Maryland vy. Abagnale, swpra at
144, For these reasons, the foreign corporation section of
the tolling statute cannot be construed to encompass extra-
territorial service unknown to the legislature at the time
of enactment and not within the intendment and scope of
the statutory language."
Finally, Searle argues that if the New Jersey tolling
statute acts to deny the statute of limitations to a foreign
corporation subject to long-arm jurisdiction, that statute
violates the equal protection clause of the United States
Constitution. This, too, is an issue of first impression.
18 Long-arm service over corporations was adopted in 1958. R.R.
4:4-4(d) (effective Sept. 3, 1958). It was extended to indivi-
duals in 1964. R.R. 4:4-4(j) (effective Jan. 2, 1964).
14 Searle has relied on cases construing the Ohio and Idaho toll-
ing statutes to be inapplicable to foreign corporations subject to
long-arm jurisdiction. Partis v. Miller Equipment Co., 324 F.
Supp. 898 (N.D. Ohio 1970); Lipe v. Javelin Tire Co., Inc., 96
Idaho 723, 536 P.2d 291 (1975). The tolling statutes in those
staiex provide for tolling when a person is “absent from the state.”
Such general language lends itself to a broader interpretation than
the more restrictive wording of the New Jersey statute.
14a Searle also makes a due process argument. Because of my
holding of the equal protection question, I need not reach Searle’s
due process claim.
43a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
Searle’s position is that a statutory classification must
bear a rational relationship to the purpose of the enact-
ment to withstand an equal protection challenge. Where
an out-of-state defendant is amenable to process, Searle
argues that the purpose of the tolling statute is satisfied,
and there is no reason to deny such a defendant the stat-
ute of limitations. While conceding that Searle is correct
as to the equal protection standard, plaintiffs reply that
the classification here under attack is rational because one
of the purposes of the tolling statute is to penalize foreign
unlicensed corporations by denying them repose to encour-
age domestication.”®
15 Plaintiffs’ position that the tolling statute was intended as
a penalty to induce licensure is flawed. N.J.S.A. 14A:13-3(1)
(1969) provides that a foreign corporation has no right to trans-
act business within New Jersey without obtaining a certificate of
authority from the Secretary of State. Where corporate activities
do not meet the standard of “transacting business,” registration
is not required. See N.J.S.A. 14A:13-3(2); N.J.S.A. 14A:13-11
(1969) ; Materials Research Corp. v. Metron, 64 N.J. 74 (1973);
United States Time Corp. v. Grand Union Co., 64 N.J.Super. 39
(Ch. Div. 1960). Assuming, arguendo, that the tolling statute
was intended to impose a penalty on unlicensed foreign corpora-
tions, such a penalty would fall with equal weight on all foreign
corporate defendants without representation by persons or officers,
irrespective of the nature of their New Jersey activities. Because
the standard of state contacts sufficient for long-arm jurisdiction
is substantially lower than that for “transacting business,” Ma-
terials Research Corp. v. Metron, supra at 84, the sanction of
the tolling statute would be imposed on corporations which would
not be required to register under N.J.S.A. 14A:13-3. While there
may be some justification for denying the statute of limitations
to corporations transacting business without registration, the toll-
(Footnote continued on following page)
44a
First Opinion of the United States District Court for the
* District of New Jersey, Filed March 22, 1978
The thrust of the equal protection clause is the proscrip-
tion of arbitrary discrimination between persons similarly
situated. Schmidt v. Board of Adjustment of City of New-
ark, 9 N.J. 405 (1952). As more fully stated by the Su-
preme Court,
the Fourteenth Amendment does not deny to the
States the power to treat different classes of per-
sons in different ways. Barbier v. Connolly, 113 U.S.
27 (1885); Lindsley v. Natural Carbonic Gas Co.,
220 U.S. 61 (1911); Railway Express Agency v. New
York, 336 U.S. 106 (1949); McDonald v. Board of
Election Commissioners, 394 U.S. 802 (1969). The
Equal Protection Clause of that amendment does,
however, deny to States the power to legislate that
different treatment be accorded to persons placed by
a statute into different classes on the basis of cri-
teria wholly unrelated to the objective of that stat-
ute. A classification “must be reasonable, not arbi-
trary, and must rest upon some ground of differ-
‘ence having a fair and substantial relation to the
object of the legislation so that all persons similarly
cireumstances shall be treated alike.” Royster Guano
Co, v. Virginia, 253 U.S. 412 (1920).
(Footnote continued from preceding page)
ing statute would reach a far greater class of corporate defend-
ants and, as construed by plaintiffs, that statute would itself effect
an irrational classification. Further, since state licensure may not
be required of a foreign corporation which is involved in the state
solely in interstate commerce, Eli Lilly & Co. v. Sav-On Drugs,
Inc., 366 U.S. 276, 278 & n. 7 (1961), plaintiffs’ reading of the
tolling statute would run afoul of the commerce clause. I am
aware of no provision imposing penalties for transacting business
without a license other than N.J.S.A. 14A:13-11.
45a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
Reed vy. Reed, 404 U.S. 71, 75-76 (1971). Accord, N.J.
Restaurant Association v. Holderman, 24 N.J, 295 (1957).
As indicated, the purpose of the tolling statute is to pre-
serve a plaintiff’s cause of action where service cannot be
effected upon the defendant on account of non-amenability
to process. Lemke v. Bailey, supra (Schettino, J., dissent-
ing); Ferraro v. Ferro Trucking Co., supra. Nothing in
the legislative history or court construction of N.J.S.A.
2A :14-22 supports plaintiffs’ assertion that a purpose of
the statute is to penalize foreign unlicensed corporations
to encourage licensure."*
The effect of the foreign corporation section of the toll-
ing statute is to distinguish between domestic and foreign
corporations subject to service through representative
agents within the state and foreign corporations subject to
service under the long-arm rule. The former are entitled
to plead the statute of limitations while the latter are
denied its repose. Since this difference in treatment bears
no rational relationship to the object of the tolling statute,
I find that the statute denies equal protection to foreign
corporations amenable to long-arm jurisdiction. Cf.
16 While the sponsor’s statement regarding the 1949 amendment
indicated that the legislature intended to give the benefit of the
statute of limitations to foreign licensed corporations, the language
of the amendment is not so narrowly phrased as to deny unli-
censed corporations a statute of limitations defense.
17 While this holding is limited to corporate defendants, indi-
viduals are subject to long-arm jurisdiction in New Jersey, R.
4:4-4(e), and I agree with plaintiffs that “[t]here is no logical
(Footnote continued on following page)
46a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
Lemke v. Bailey, swpra at 305-06 (Schettino, J., dissent-
ing).
One who by law is subject to a state’s jurisdiction is
effectively present and represented within that state. Hur-
witch v. Adams, 151 A.2d 286 (Del. Super. Ct.), af’d, 52
Del, 247, 155 A.2d 591 (1959); Bolduc v. Richards, 101
N.H. 303, 142 A.2d 156 (1958); Snyder v. Clune, 15 Utah
2d 254, 390 P.2d 915 (1964). Where the long-arm rule
places an out-of-state defendant on an equal footing with
a resident or represented one, there is no rational justifi-
cation for differential treatment of such defendants with
regard to the statute of limitations. While the tolling stat-
(Footnote continued from preceding page)
reason to treat corporate and individual defendants in a differ-
ent manner.” Lackovic v. New England Paper Tube Co., Inc.,
supra at 398. One court has held that it does not deny equal
protection of the laws to apply a tolling statute to an individual
defendant subject to substituted service pursuant to a nonresident
motorist statute because of the latter statute’s requirement of ac-
tual notice to the defendant for a personal judgment and the diffi-
culty of locating an individual in another state. Vaughn v. Deits,
430 S.W.2d 487 (Tex. 1968). However, the burdens on plain-
tiffs found so onerous by that court are minimized in New Jer-
sey practice. In New Jersey, an action is commenced by filing
a complaint wich the court, R. 4:2-2, and a summons is to be
issued and served 10 days thereafter. R. 4:4-1. However, liberal
relief is granted from the 10-day service rule where the plaintiff
uses due diligence to find the defendant. See Cooke v. Yarring-
ton, 62 N.J. 123 (1973); X-L Liquors, Inc. v. Taylor, 17 N.J.
444, 454 (1955). Thus, there is no prejudice to plaintiffs in re-
quiring them to file a complaint within the limitations period where
their cause of action will be preserved so long as they make rea-
sonable efforts to find the defendant.
47a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
ute made eminent good sense in the days of territorial re-
strictions on service, it has become dated in the instant
context by modern changes in the law of in personam juris-
diction. The infirmity which the statute has developed in
the course of the aging process is over-permissiveness:
until today it allowed a plaintiff to postpone indefinitely
the assertion of his cause of action even though the de-
fendant was subject to service. As a matter of fair judi-
cial administration, where a defendant may be brought be-
fore the courts, he should be permitted to assert the stat-
ute of limitations to implement the important policies be-
hind that statute to spare defendants from being put to a
defense after evidence is lost, memories have faded and
witnesses have died or disappeared and to deliver the
courts from the litigation of stale and possibly fraudulent
claims. Union City Housing Authority v. Commonwealth
Trust Co., 25 N.J. 330, 335 (1957). The instant holding
brings New Jersey law’* into conformity with the rule in
the majority of the states’ that amenability to process by
18T express no view on the rule of Lemke v. Bailey, supra,
but note that any defendant subject to service under New Jersey
nonresident motorist statute, N.J.S.A. 39:7-2, is also amenable
to long-arm jurisdiction.
19 Of the 42 states which have considered the question, 38 take
the majority position. See 94 A.L.R. 485 (1935); 119 A.L.R.
859 (1939); 17 A.L.R.2d 502 (1951); 55 A.L.R.3d 1158 (1974).
Contra:
New Jersey:
Lemke v. Bailey, 41 N.J. 259, 196 A.2d 523 (1963).
(Footnote continued on following page)
48a
First Opinion of the United States District Court for the
District of New Jersey, Filed March 22, 1978
substituted or long-arm service renders the tolling statute
inapplicable.
In light of the above result, it will become necessary
to resolve the second issue tendered by the motion of
defendant for summary judgment—whether plaintiffs are
entitled to the benefit of the “discovery” rule in bar of
the statute of limitations. There will be no necessity to
enter an order on the motion until that question is resolved.
Datd: March 22, 1978.
(Footnote continued from preceding page)
Ohio:
Couts v. Rose, 152 Ohio St. 458, 90 N.E.2d 139 (1950).
However, the Ohio courts have taken a different approach
to corporations. See Partis v. Miller Equipment Co.,
324 F.Supp. 898 (N.D. Ohio 1970), aff'd, 439 F.2d 262
(6th Cir, 1971).
S. Carolina:
Maeri v. Flaherty, 115 F.Supp. 739 (E.D.S.C. 1953).
Texas:
Diets v. Vaughn, 423 S.W.2d 113 (Civ. App. 1967), aff'd,
430 S.W.2d 487 (Tex. 1968).
49a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
UNITED STATES DISTRICT COURT
District or New JERSEY
Civil Action No. 74-450
a
— >
SUSAN COHN and WALTER COHN, her husband,
Plaintiffs,
v.
G. D. SEARLE & COMPANY,
Defendant.
,
a
Appearances:
Walter R. Cohn, Esq.
Attorney for Plaintiffs.
Shanley & Fisher, Esqs.
Attorneys for Defendant.
By: Raymond M. Tierney, Jr., Esq.
Meanor, District Judge.
This matter comes before the court on defendant’s mo-
tion for summary judgment to dismiss the complaint.
Plaintiffs, Susan Cohn and Waiter Cohn, her husband
and attorney, initiated suit against G. D, Searle & Com-
50a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
pnay (“Searle”), the manufacturer of the oral contra-
ceptive Enovid, for personal injury and per quod dam-
ages allegdly resulting from Mrs. Cohn’s use of the drug.
Mrs. Cohn commenced taking the contraceptive in the
spring of 1963 and continued its use until December 22,
1963. On that date, she suffered a stroke, or cerebral
vascular accident (“C.V.A.”), when a blood clot lodged in
the circulatory system of her brain. The C.V.A. re
quired surgery, long hospitalization and rehabilitative
therapy and resulted in permanent physical injury.
It appears that in 1964 little or nothing was known
about potential coagulant side effects of oral contracep-
tives. However, from at least 1966 the medical literatuie
and the lay press increasingly reported research which
suggested a relationship between oral contraceptives and
abnormal blood clotting. Sometime between 1966 and late
1973 the Cohns became aware of the possible link between
Mrs. Cohn’s C.V.A. and the ingestion of Enovid. Tr. at
58; plaintiffs’ [first] brief marked in evidence Exhibit
D-9 at 4-5. They initiated suit against Searle on January
29, 1974. Their complaint, predicated on theories of negli-
gence, breach of warranty, statutory violations and strict
liability, was filed in the Superior Court of New Jersey,
Law Division, Essex County. Service was effected on
Searle under the long-arm rule. Rule 4:44, On April
1, 1974, the case was removed to this court pursuant to
28 U.S.C. § 1441. Jurisdiction is invoked pursuant to
28 U.S.C. § 1332 and venue is proper under 28 U.S.C.
§ 1391(a).
At all times relevant to this action, the plaintiffs have
been residents of New Jersey. Searle is a Delaware
corporation with its principal place of business in Illinois.
5la
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
Prior to December 30, 1960, Searle was registered to do
business in New Jersey, but on that date it formally with-
drew from the state.
Searle first moved for summary judgment on grounds
that plaintiffs’ cause of action is time-barred under the
relevant two-year statute of limitations, N.J.S.A, 2A :14-2
(1952). On March 22, 1978, this court in a written opin-
ion held, inter alia, that a foreign corporation’s amenabil-
ity to process by substituted or long-arm service renders
the New Jersey tolling statute, N.J.S.A. 2A:14-22, in-
applicable. Where a defendant could be brought before
the New Jersey courts, this court reasoned, he should be
permitted to assert the statute of limitations to implement
the important policies behind that statute. Cohn v. G. D.
Searle & Co., 447 F. Supp. 903, 912-13 (D.N.J. 1978). In
light of the result reached, this court noted that it became
necessary to resolve the issue whether plaintiffs were en-
titled to the benefit of the “discovery” rule. Fernandi v.
Strully, 35 N.J. 434, 173 A.2d 277 (1961); Lopez v. Swyer,
62 N.J. 267, 300 A.2d 563 (1973). Testimony was heard
February 12, 1979 on that issue.
Plaintiffs now allege that it was not possible for them
to bring suit until 1974 on account of two factors: (1)
it was not until 1969-1970 that the medical evidence link-
ing the ingestion of Enovid and the C.V.A. came to light;
12A:14-2. 2 years; actions for injuries to person by wrong-
ful act.
Every action at law for an injury to the person caused
by the wrongful act, neglect or default of any person within
this state shall be commenced within 2 years next after
the cause of any such action shall have accrued.
52a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
and (2) Mrs. Cohn was experiencing a severe depression,
attributable to her injury, which delayed commencement
of suit until 1974.
Plaintiffs argue that the two-year statute of limita-
tions in a medical malpractice action, N.J.S.A. 2A:14-2,
begins to run not when the negligence occurred, but when
the injured party knew or reasonably should have known
of the injury as well as of the basis for an actionable
claim. Lopez, supra; Goodman vy. Mead Johnson & Co.,
434 F.2d 566 (3d Cir. 1976), cert. denied, 429 U.S. 1038
(1977) (Gibbons, J.). Where one suffers a temporary dis-
ability, such as insanity, the statute is tolled for the period
of the disability. NJ.S:A. 2A:14-21; Kyle v. Green Acres
at Verona, Inc., 44 N.J. 100, 207 A.2d 513 (1965). Since
Mrs. Cohn’s depression is a comparable disability to in-
sanity, plaintiffs contend that the period of her disability,
1970-1973, Tr. at 58-60, tolls the statute. When the above
disability subsided, plaintiffs promptly filed suit in 1974
because at that point Mrs. Cohn was fully cognizable of
the basis for her claim.
Searle responds that prior to the February 12, 1979
hearing plaintiffs articulated that the delay in filing was
due solely to the lack of concrete evidence linking the
taking of the Enovid to Mrs. Cohn’s C.V.A. Moreover,
depression, defendant argues, does not fall within the
meaning of disability as defined in N.J.S.A. 2A:14-21, nor
was Mrs. Cohn insane as that term was defined in Kyle,
supra.
Thus, the questions before this court are vhether the
lack of concrete medical evidence linking Enovid and the
C.V.A. entitles plaintiffs to the benefit of the discovery
53a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
rule and, if so, whether the alleged temporary insanity of
Mrs. Cohn tolls the running of N.J.S.:A. 2A:14-2,
The New Jersey Supreme Court first announced the
discovery rule in Fernandi v. Strully, supra, wherein the
Court held that the two-year statute of limitations in a
medical malpractice action began to run not when the
negligence in fact occurred, but, rather, when the injured
party knew or had reason to know of the presence of
negligently left foreign objects in the body.? The rule
2 Early cases in New Jersey held that the two-year statute of
limitations for personal injuries, N.J.S.A. 2A:14-2, in the con-
text of medical malpractice litigation begins to run at the moment
of the negligent act, irrespective of the time when the injury is
discovered. While it was recognized that individual hardships
would result, the courts contended thac to hold otherwise “ ‘would
be inimical to the repose of society and promote litigation .. .
too uncertain and too speculative to be encouraged.’” Tortorello
v. Reinfeld, 6 N.J. 58, 67, 77 A.2d 240, 244 (1950); Weinstein
v. Blanchard, 109 N.J.L. 332, 162 A. 601 (Ct. Err. & App. 1932).
However, in order to circumvent the strict application of the
statute of limitations in this context, courts in various jurisdic-
tions created artificial approaches such as the doctrine of continu-
ous treatment, fraudulent concealment of injury, constructive fraud
in the physician’s silence, and the concept of continuing negligence.
W. Prosser Handbook of the Law of Torts § 30 at 144 (4th ed.
1971). The Fernandi Court adopted the most direct approach,
i.e., the discovery rule, in response to the equitable consideration
that an individual should not be denied his day in court due to
blameless ignorance.
S4a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
evolved beyond foreign body malpractice actions’ to the
point where the statute did not run until the plaintiff
learned or reasonably should have learned of the injury
and the basis for an actionable claim. Lopez, supra, 62
N.J. at 272; Burd v. New Jersey Telephone Company, 76
N.J. 284, 291-92 (1978). The plaintiff, who contends that
his discovery of a cause of action postdated defendant’s
actionable conduct, has the burden of proof as to the date
of such discovery. Lopez, supra, 62 N.J. at 276; Fox v.
Passaic General Hospital, 71 N.J. 122, 128 n. 1, 363 A.2d
®Sce, e.g., Moran v. Napolitano, 71 N.J. 133, 363 A.2d 346
(1976) (discovery rule applicable to alleged misdiagnosis) ; Yerzy
v. Levine, 57 N.J. 234, 271 A.2d 425 (1970) (discovery rule ap-
plicable to negligent performance of internal surgery where no
foreign object was involved); Diamond v. New Jersey Bell Tel.
Co., 51 N.J. 594, 596-97, 242 A.2d 622, 623 (1968) (discovery
rule applicable to negligent installation of conduit); New Mkt.
Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 420, 425, 241 A.2d
633, 636-37 (1968) (discovery rule applicable to negligently pre-
pared survey); Rosenau v. City of New Brunswick, 51 N.J. 130,
134, 139-40, 238 A.2d 169, 171, 173-74 (1968) (discovery rule
applicable to defect in water meter).
*In defining the discovery rule, the Lopez Court considered
knowledge of the “basis for an actionable claim” to be a prerequi-
site to the running of the statute of limitations. Jd. at 272; Burd,
supra, 76 N.J. at 291. Because the discovery rule is defined in
this manner, knowledge of the injury must necessarily be coupled
with knowledge of the causal relationship between the injury and
some negligent act of the defendant in order for the statute of
limitations to commence running.
55a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
341, 344 n. 1 (1976).5 Once such discovery has been
established, application of the discovery rule is auto-
matically effective, provided suit is promptly filed within
two years thereafter and absent a showing of undue prej-
udice by defendant. Fox, supra, 71 N.J. at 127-28.
5 Generally, the time of discovery in federal court is a fact
question for the jury not the judge. Goodman v. Mead Johnson
& Co., supra. This rule takes precedence over the state rule set
forth in Lopez which allows the judge to make such determination.
Id. at 573. Here, the parties expressly agreed to have the judge
decide this question. Tierney Letter dated Sept. 27, 1977; Cohn
Letter dated Oct. 4, 1977.
®The Fox Court held that a plaintiff who discovers the exist-
ence of a malpractice cause of action prior to the expiration of
a period of two years after defendant’s actionable conduct has
a full two years after such discovery to bring the action absent
a showing of prejudice by defendant and the lapse of a reason-
able length of time within which to initiate suit. The Fox de-
cision therefore mandates that the defendant be charged with a
two-part showing of prejudice in order to preclude application
of the discovery rule. Such ruling is a departure from Lopez
which placed the burden of proof on the party claiming belated
discovery of a cause of action. Under Lopez, several factors were
to be considered before applying the rule: the nature of the in-
jury, the availability of witnesses and evidence, the length of time
which had elapsed, whether the delay was intentional, and the preju-
dice to defendant. Jd. at 276.
The prejudice rule in Fox, however, may only be applicable in
cases where plaintiff discovers his cause of action within two years
of the alleged injury. The Court specifically reserved decision
on the effect of prejudice to defendant where the cause of action
is discovered later. Jd. at 128, n. 1.
(Footnote continued on following page)
56a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
A review of the facts here clearly demonstrates that
plaintiffs are entitled to the benefits of the discovery rule.
Mrs. Cohn’s C.V.A4. occurred in 1963 at a time when she
was otherwise in perfect health. The seriousness of her
subsequent injuzies could not have been attributed to Eno-
vid without concrete medical evidence.
In this regard, Mrs, Cohn was asked:
Q. When, Mrs. Cohn did you first make any con-
nection between your C.V.A. and Enovid?
A. I’m not exactly sure, but I think it was prob-
ably the period when my older daughter was in high
school
Q. Your older daughter being Nancy?
A. Yes. I think it must of been that four year
period along in there.
Q. Could you be more specific about that?
A. In fact, I'll take a pencil and paper and work
backwards. That would be 1970 less four, which
brings us back to 1966, so I guess it would be some-
where along in between.
Q. Nancy is graduating from college this year?
A. Yes.
(Footnote continued from preceding page)
In either case, evaluation of the prejudice rule requires an ana-
lysis of the Lopez criteria as well as plaintiff’s alacrity in filing
suit. Moreover, the discovery doctrine itself is subject to some
restraint. As the time from the occurrence of the malpractice
increases considerations of fairness to the defendant become more
insistent. Owens v. White, 342 F.2d 817, 820 (9th Cir. 1965)
(relied upon by Fox Court).
57a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
Q. So she would of [sic, have] graduated from
high school in 1970? Isn’t that so?
A. Yes.
Q. So she would have been in high school be-
tween—
A. I could see my problem. I subtracted four
years for high school instead of three, which would
make it 1967.
Q. Well, she would of [sic, have] been in high
[school] from 1966 thru 1970? Isn't that su?
A. Yes.
Q. Was it during that period of time that you
first made a connection?
A. There seemed to be something coming out in
the papers and in the news magazines.
Q. At that time?
A. Yes.
Q. Is that when you first made the connection?
A. That’s right.
Susan Cohn Deposition, filed July 15, 1975, pp. 6-8 (Em-
phasis added).
Whereas her husband-attorney testified as follows:
Mr. Cohn: The first question raised to the Court
this morning is when I knew of the causal connec-
tion and the possibility of a lawsuit against the de-
fendant. I test.*ed in depositions that in the late,
latter part of 1969, the beginning of 1970, there was
literature coming out among—in the press as to the
possible causal connection between the ingestion of
Enovid, or the birth control as such, and stroke.
And I did begin collecting literature at that time.
But I did not start a lawsuit until 1974.
58a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
As an explanation to the Court, there is no ques-
tion that I did consider the lawsuit in 1970, when
the literature began coming out. I discussed it with
Mia, M-i-a, Parsonnette, the wife of Doctor Victor
Parsonette, she being a doctor as well. I testified in
depositions that I knew her from community work.
She had spoken to me about it. She had suggested
the possible causal connection, although she didn’t
encourage a lawsuit, but I then, knowing that she
had some knowledge about it, had discussed it with
her.
Her husband performed the operation upon my
wife the very first night after the stroke. I knew
him, I knew her. And I was aware of the possibility
of a lawsuit.
Tr. at 58.
Such concrete medical evidence did not in fact come to
light until 1970 wherein the FDA finally, after extensive
research, took the position that “[the] use of the oral con-
traceptives increases the risk of thromboembolic disorders
. .. [although] data [is] inadequate to delineate differ-
ences between specific products ....” Defendant’s Exhibit
D-13; see Defendant’s Exhibits D-14, D-15, D-16, D-17,
D-18.
To link the occurrence of a C.V.A. and the ingestion of
Enovid would go beyond what a reasonable man should
have known in 1964. The scientific community itself was
uncertain about such a link. In 1966, the FDA concluded
that “[t]he most recent work on the response of blood
coagulation factors to oral contraceptives indicated no sta-
tistically significant effect.” Defendant’s Exhibit D-17.
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
Accordingly, this Court finds that the applicable date of
discovery for the purposes of N.J.S.A. 2A:14-2 was in
early 1970."
Searle has not demonstrated any prejudice or that the
delay was intentional. In light of the injuries suffered and
the clear availability of witnesses and evidence, this Court,
in accordance with Lopez and Burd, finds that plaintiffs
™We are not faced with a fact situation analogous to Burd,
supra, There, the claimant suffered a heart attack while work-
ing in a trench gluing together plastic pipe. He had used the
glue for one week prior to the attack and had experienced dizzi-
ness in so doing. In addition, he had read the label warning him
not to inhale fumes. The Court barred the action for failure
to commence suit within two years of the heart attack, notwith-
standing the fact it was not until one year thereafter that plain-
tiff was advised by counsel of a possible products liability claim.
In pertinent part, Judge Conford (sitting by designation) em-
phasized that a cause of action is not “postponed until plaintiff
learns or should learn the state of the law positing a right of
recovery upon the facts already known to or reasonably known
by the person.” Jd, at 292.
Here, Searle had put no one on notice of potential coagulant
side effects or oral contraceptives. The FDA reports were in-
conclusive. Defendant’s Exhibit D-17, Medical evidence did not
surface until the late 1960s. Defendant’s Exhibits D-13, D-14,
D-15, D-16, D-17, D-18. Mrs. Cohn did not have knowledge
of an actionable claim in 1963 against Searle for negligent test-
ing or compounding or for failure to warn of known hazards.
Accordingly, linking the ingestion of Enovid to the C.V.A. went
beyond the knowledge of a reasonable man and possibly even the
medical community.
60a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
are entitled to the benefits of the discovery rule.’ The per-
tinent statute of limitations, N.J.S.A. 2A :14-2, therefore,
did not begin to run until 1970.
The issue now becomes whether or not plaintiffs’ suit
should be barred for failure to bring the instant suit with-
in two years of the date of discovery.
Plaintiffs allege that on or about the date of discovery
Mrs. Cohn was suffering from a severe depression suf-
ficient to constitute a disability under N.J.S.A. 2A:14-21,
thereby tolling the statute of limitations.’
®See generally Kubrick v. United States, 581 F.2d 1092, 1095-
96 (3d Cir. 1978); Exnicious v. United States, 563 F.2d 418,
420 (10th Cir. 1977); Raymond v. Eli Lilly & Co., 412 F. Supp.
1392, aff'd, 556 F.2d 628, 629-30 (1st Cir. 1977); Bridgford v.
United States, 550 F.2d 978, 981 (4th Cir. 1977); Reilly v. United
States, 513 F.2d 147, 150 (8th Cir. 1975) ; Jordan v. United States,
503 F.2d 620, 262 (6th Cir. 1974); Tyminski v. United States,
481 F.2d 257, 263 (3d Cir. 1973); Toal v. United States, 438
F.2d 222, 224-25 (2d Cir. 1971); Ashley v. United States, 413
F.2d 490, 492 (9th Cir. 1969); Quinton v. United States, 304
F.2d 234, 240 (Sth Cir. 1962).
®It should be pointed out that this allegation is one of recent
vintage. Prior w the hearing of Feb. 12, 1979, plaintiffs articu-
lated to this Court that the sole reason for the lateness in filing
the complaint was the result of lack of “concrete evidence link-
ing the taking of ‘Enovid’ to Susan Cohn’s C.V.A.” Plaintiffs’
[first] Brief marked in evidence Exhibit D-9, pp. 4-5.
Plaintiffs are, as of Feb. 12, 1979, arguing for the first time
that Mrs. Cohn’s depression (disability) prevented Mr. Cohn from
discussing the lawsuit with his wife until 1974 when suit was
filed.
6la
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
N.J.S.A, 2A :14-21 provides:
If any person entitled to any of the actions or
proceedings specified in sections 2A:14-1 to 2A:148
or sections 2A:14-16 to 2A:14-20 of this title or
to a right or title of entry under section 2A:14-6
of this title is or shall be, at the time of any such
cause of action or right or title accruing, under the
age of 21 years, or insane, such person may com-
mence such action or make such entry, within such
time as limited by said sections, after his coming
to or being of full age or of sane mind.
The statute explicitly provides for only two disabilities,
infancy and incompetency. Although there are few cases
which construe the toll for insanity, Kyle, supra; Sobin
v. M. Frisch & Sons, 108 N.J.Super. 99, 260 A.2d 228
(App. Div. 1969), certif. denied, 55 N.J. 448, 262 A.2d 702
(1970), the determination of insanity requires an evalu-
ation of all the relevant facts and circumstances, keeping
in mind the manifest purpose of the tolling provision to
“relieve from strict time restrictions any person who actu-
ally lacks the ability and capacity, due to mental affliction,
to pursue his lawful rights.” Sobin, supra, 108 N.J. Super.
at 104.
The word insane in this statute “means such a condition
of mental derangement as actually prevents the sufferer
from understanding his legal rights or instituting legal
action.” Kyle, supra, 44 N.J. at 113. Such definition was
broadened in Sobin to cover a party rendered unconscious
62a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
for a period of 100 days.’® The above language indicates
that the determination of disability should be a pragmatic
one, not necessarily based upon medical or psychological
classifications alone; i.e., plaintiff’s experts. See Graboi v.
Kibel, 432 F.Supp. 572 (S.D.N.Y. 1977).
At the Feb. 12, 1979 hearing, plaintiffs put the reports
of Dr. Liss, Dr. Nudelman, and Dr. Shuttleworth into evi-
dence. All three doctors came to the similar conclusion that
due to Mrs. Cohn’s severe emotional depression and re-
action to her physical handicap she was unable, except at
a tremendous risk, to discuss her legal initiatives from
1971 to 1973. Plaintiffs’ Exhibits P-3, P-4, P-6. In particu-
lar, Dr. Shuttleworth, her psychiatrist during this period,
described her condition as follows:
Finally, however, the patient [Mrs. Cohn] herself,
by the end of 1971, approaching the anniversary
time of the stroke, and because of the internal pres-
sure of the depression and suicidal ideation, sought
psychiatric help. After the initial session, the pa-
10Tt is generally recognized in other jurisdictions that a per-
son may be under the legal disability of insanity within the mean-
ing of the exception to the statute of limitations when the dis-
ability is of such a nature as to show him unable to manage his
business affairs or estate, or to comprehend his legal rights or
liabilities. See, e.g., Hurd v. County of Allegheny, 39 A.D.2d
499, 502-03, 336 N.Y.S.2d 952, 956 (4th Dept. 1972); Spear-
man Vv. Jones, 226 Ga. 27, 172 S.E.2d 602 (Sup. Ct. 1970); Klamm
Shell v. Berg, 165 Colo. 540, 441 P.2d 10 (Sup. Ct. 1968); Hsu
v. Mt. Zion Hospital, 259 Cal. App.2d 562, 66 Cal. Rptr. 659
(Dist. Ct. App. 1968) ; Emery v. Chesapeake & O. Ry., 372 Mich.
663, 127 N.W.2d 826 (Sup.Ct. 1964); Roberts v. Stith, 383
P.2d 14 (Sup. Ct. Okla. 1963); Pearl v. Pearl, 177 Cal. 303, 177
P. 845 (Sup. Ct. 1918).
63a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
tient succumbed to her negative thinking and was
hospitalized in December, 1971, because of a suicidal
gesture, an overdosage with sedatives. During this
hospitalization, antidepressant medication was
started, and after discharge in January, 1972, active
psychotherapy began.
Response to treatment was sufficiently positive
by 1973 so that discussion of legal action was at
least possible without evasion. This timing was
brought about by the psychological development of
newly positive general attitudes, a more acceptant
and realistic self-image, improved interpersonal
skills, and an alternative life style which included
new activities xad teaching opportunities.
In conclusion, it is my opinion that during the
eight years, 1965 through 1973, pressing the issue of
legal action, with its concomitant forcing of aware-
ness and premature elimination of Mrs. Cohn’s pro-
tective denial could, in view of what actually did
occur in 1971, have produced a suicidal crisis with
the unpredictable risk of a completed suicide.
Plaintiffs’ Exhibit P-6.
In view of such medical analysis, plaintiffs assert that
Mrs. Cohn’s depression rises to the level of insanity set
forth in Kyle. In addition, plaintiffs rely on Giles v. Gas-
sert, 23 N.J. 22, 127 A.2d 161 (1956); Giacobbe v. Gassert,
29 N.J. 421, 149 A.2d 214 (1959) ; Greene v. Director of the
Division of Motor Vehicles, 65 N.J. Super. 242, 167 A.2d
642 (App. Div.), certif. denied, 35 N.J. 60, 171 A.2d 146
(1961) and White v. Violent Crimes Compensation Board,
76 N.J. 368, 388 A.2d 206 (1978) for the proposition that
Mrs. Cohn’s disability should toll the statute.
64a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
Plaintiffs’ arguments are unpersuasive. First, the cases
cited by plaintiffs do not deal with N.J.S.A. 2A:14-21.
Giles, Giacobbe, and Greene were brought under the Un-
satified Claim and Judgment Fund Law, N.J.S.A. 39:6-65,"
which specifically provides for tolling of its notice claim
rule in the event the would-be claimant is “physically in-
capable” of giving the required notice. The claimants in
each of the three cases had the requisite “physical incapa-
city” to give notice and, thus, the notice requirements were
accordingly tolled.
11.N.J.S.A. 39:6-65 provides in pertinent part:
Any qualified person, or the personal representative of
such person, who suffers damages resulting from bodily in-
jury or death or damage to property arising out of the
ownership, maintenance or use of a motor vehicle in this
State on or after April 1, 1955, and whose damages may
be satisfied in whole or in part from the fund, shall, ex-
cept in cases in which the claim is asserted by actions brought
under section 18 of this act pursuant to section 19 of this
act, within 90 days after the accident, as a condition prece-
dent to the right thereafter to apply for payment from the
fund, give notice to the board, the form and contents of
which shall be prescribed by the board, of his intention
to make a claim thereon for such damages if otherwise un-
collectable; provided, any such qualified person may, in
lieu of giving said notice within said time, make proof
to the court on the hearing of the application for the pay-
ment of a judgment (a) that he was physically incapable
of giving said notice within said period and that he gave
said notice within 90 days after he became physically cap-
able to do so or in the event he did not become so capable,
that a notice was given on his behalf within a reasonable
65a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
White involved a claim by a violent crime victim for com-
pensation under the Criminal Injuries Compensation Act,
N.J.S.A. 52:4B-1 et seq., which provides that application
for compensation be made within one year of the injury or
death.”* Application was in fact made beyond the one year
period and rejected by the Violent Crimes Compensation
Board as being out of time. In an unpublished opinion, the
Appellate Division affirmed and the Supreme Court re-
versed.
Because of the factual circumstances concerning the
crime, the injuries suffered, and “[plaintiff’s] diligent pur-
suit of assistance,” id. at 371, the majority, speaking
through Justice Pashman, felt compelled to discard the
traditional distinctions between “procedural” and “sub-
stantive” statutes of limitation and held that: “in the case
of a statutorily created right, a ‘substantive’ limitation
period may appropriately be tolled in a particular set of
circumstances if the legislative purpose underlying the
statutory scheme will thereby be effectuated.” Id. at 379
(emphasis added), In essence, the Court held, inter alia,
that in appropriate circumstances, equitable considerations
may affect the tolling of “substantive” statutes of limitation
so long as the legislative purpose will be advanced. That
has long been the rule with “procedural” statutes of limita-
12In particular, N.J.S.A. 52:4B-18 provides in part:
No order for the payment of compensation shall be made
under section 10 of this act unless the application has been
made within 1 year after the date of the personal injury
or death, and the personal injury or death was the result
of an offense listed in section 11 of this act which had
been reported to the police within 3 months after its oc-
currence,
66a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
tion, such as N.J.S.A. 2A :14-2, involved here. It is impor-
tant to note that the White Court stressed the purpose of
the legislation—compensation to crime victims and did not
perceive any legislative policy precluding a tolling be-
cause of crime-induced incapacity. Cf. id. at 390-91 (Con-
ford, J., dissenting).
Thus, while Giles, Giacobbe, and Greene broaden the
definition of physical incapacity under N.J.S.A. 39:6-65
and White creates an equitable exception to N.J.S.A. 52:
4B-18, such cases do not advance the position taken by
plaintiffs.”
Secondly, this Court finds that Mrs. Cohn’s alleged de-
pression does not constitute a disability under N.J.S.A.
2A :14-21 so as to toll N.J.S.A. 2A:14-2.
The mental state of a person is not something capable
of precise measurement. Variations in emotional out-
look are common in all people. The percentage of the
population that suffers from a sufficient degree of mental
or emotional disturbance to require medical treatment is
substantial and would probably be greater were not psy-
chiatric treatment so expensive. Most, however, are ca-
pable of managing their own personal affairs with a rea-
sonable degree of success. Graboi, swpra, 432 F.Supp. at
579.
18 Plaintiffs set forth additional cases which likewise are not
particularly helpful to their tolling arguments. Squires v. Rush,
408 F.2d 372 (3d Cir. 1969) (per curiam) (plaintiff’s alleged
mental disorder did not rise to insanity under N.J.S.A. 2A:14-21
as the court specifically noted that plaintiff was neither hospital-
ized nor adjudicated insane). Raymond v. Eli Lilly & Co., supra
(discovery rule should not be rigidly limited).
67a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
The doctors who examined and/or treated Mrs. Cohn
over the past years, in particular Dr. Liss, Dr. Nudelman,
and Dr, Shuttleworth, all concluded that Mrs. Cohn was
so severely depressed that she was unable to institute
legal proceedings until 1974.
The reports of Dr. Liss and Dr. Nudelman reveal that
it was not until late 1972 or early 1973 that Mrs. Cohn
could discuss her legal alternatives. Plaintiffs’ Exhibits
P-3, P-4. The last two reports of Dr. Shuttleworth indi-
cate that the pressing of legal action from the years 1965
to 1973 could have produced unpredictable risks. Plain-
tiffs’ Exhibits P-6, P-7. Such medical analysis would
apparently bring Mrs. Cohn’s depression within the mean-
ing of “insanity” as defined in Kyle.
However, from the evidence before me, these doctors
never came to such conclusions until late 1978 or 1979, long
after the commencement of the instant action. For in-
stance, the first report of Dr. Shuttleworth dated June
19, 1974 makes no mention of the severity of the depression
nor whether it interfered with the patient’s understand-
ing of her legal status. Defendant’s Exhibit D-6. The
second and third Shuttleworth reports, which contained
such conclusions, were issued subsequent to a letier from
Mr. Cohn dated Sept. 12, 1978 informing Dr. Shuttleworth
of the pending action and of his pertinent legal theories.
See Tr. at 22.
At the hearing, Mr. Cohn was asked:
Q. Up until that letter [Cohn Letter to Dr. Shut-
tleworth, Sept. 12, 1978] had you ever even dis-
cussed the subject of Susan’s, Mrs. Cohn’s emo-
tional and psychological state as having any bear-
ing on a lawsuit at all?
68a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
A. You’re talking about Doctor Shuttleworth?
Q. Yes, sir.
A. My best recollection is no.
_ Q. I’m not talking about the case. I know you've
spoke to Doctor Liss about the case and I assume
_ you’ve spoken to Doctor Nudelman. The specific
- question, Mr. Cohn is, had you ever talked to Doctor
Liss and/or Doctor Nudelman concerning your
theory that the emotional or psychological involve-
‘men tof Mrs. Cohn would somehow extend the dis-
‘covery doctrine under the statute of limitations?
Had ‘you ever diseussed that with them prior to
that letter marked—
' A. Prior to January 17th?
‘Q. Yes, sir.
A, Yes.
Q. When did you first discuss that situation with
Doctor Liss?
A. I couldn’t honestly give you a date.
' Q. It was well after the commencement of this
lawsuit, was it not?
| A. Yes. Because the problem hadn’t arisen.
. Q. And your first discussion with Doctor Nudel-
man was also well after the institution of this law-
suit. Isn’t that true?
A. Yes. If you define—well—
Q. Months?
A. Months?
Q. Months?
A. Yes.
Q. Better than a year?
69a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
A. It started I believe in—yes, the answer would
be yes.
Q. Thank you.
Tr. at 22-25.
Furthermore, the doctors speak of Mrs, Cohn’s bar-
bituate incident in 1971 as a suicide attempt and conclude
that any pressing of her legal action may have resulted
in a complete suicide. Yet, at deposition, Mrs. Cohn testi-
fied with reference to the sleeping pill incident in 1971 as
follows:
Q. Were you ever in a hospital for any reaction
to drugs?
A. Yes.
Q. Tell me about that, please.
A. There was a time when I took too many
sleeping pills for the middle of the day. It was
five pills but I guess it’s a lot for noontime. My
daughter saw this empty bottle and didn’t know
what it was, and she called the ambulance and they
hustled me up to St. Barnabas. I guess I stayed
there until the drug wore off.
Q. When you took these five pills, did you real-
ize what you were doing?
A. Yes, I was taking five sleeping pills.
Q. With any motive in mind?
A. I had a terrible headache and I wanted to
get away from it. Usually it took me five sleep-
ing pills to go to sleep at night.
Q. Do you thnik that the people who saw you do-
ing this overreacted?
A. Yes. They didn’t see me do it,
70a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
Q. Well, from whatever they found out at the
time, it’s your opinion that they overreacted?
A. Yes. I know they overreacted. Yes.
Mrs, Cohn Dep. at 72-72 (emphasis added).
The noticeable delay in the issuance of correlating
conclusions by all three doctors, in particular by Dr.
Shuttleworth, as well as their description of the barbituate
incident lead this Court to take a skeptical view of their
accuracy. As Judge Goettel aptly pointed out in Graboi
v. Kibel, supra: “[eljertainly the Court is not required,
as urged by plaintiff, to accept the conclusions of plain-
tiff’s expert[s], retained after the commencement of liti-
gation.” 432 F.Supp. at 579.
Moreover, a brief review of the history of this litigation
demonstrates that plaintiffs have noticeably shifted posi-
tions. In a previous brief filed with this Court, Mr. Cohn
stated that both he and his wife “diligently endeavored
to establish a concrete casual [sic, causal] link between
‘Enovid’ and the C.V.A. of Susan Cohn.” Plaintiffs’ [first]
Brief marked in evidence, Exhibit D-9, p4. Plaintiff
continued: “It was not until the latter portion of 1973
however that the medical evidence linking ‘Enovid’ to
the occurrence of C.V.A. came to light. Following the
strength of this evidence, suit was filed with dispatch.
The delay in filing suit was due solely to the lack of con-
crete evidence.” Id. at 5 (emphasis added). Mr. Cohn then
suggested that if Searle had disclosed certain informa-
tion to the public and medical profession “it is possible
plaintiffs could have discovered the cause of Susan Cohn’s
C.V.A. prior to the latter portion of 1973.” Id. Not one
word was ever directed to this Court concerning the
theory of mental disability.
71a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
The fact Mrs. Cohn took it upon herself to establish
concrete medical evidence, id. at 4, and brought articles
linking oral contraceptives and thrombosis to her hus-
band’s attention, Mrs. Cohn Dep, at 11, is clearly incon-
sistent with one being unable to even understand her legal
rights or to even discuss the possibility of initiating legal
action.*
The definition of insanity as interpreted in Kyle is a
pragmatic one, taking into consideration all relevant facts
and circumstances. The New Jersey Supreme Court in
Kyle recognized the important equitable policy behind
N.J.S.A. 2A:14-21 to toll the running of the statute of
limitations where a party lacks the ability and capacity,
due to infancy or mental infliction, to pursue her lawful
rights. However, the standard set forth in Kyle does
not automatically encompass every mental or emotional
disorder. Not all rise to the level of statutory insanity.
Like physical injuries, mental afflictions can be success-
fully treated through counseling or medical advice. In
the interim, most persons so inflicted can still manage to
a fair degree of success their own affairs.
From all the evidence before me, it is clear that Mrs.
Cohn was sufficiently able to manage her affairs and to
collect pertinent medical information for the institution
of a possible suit to redress the injuries incurred. She
was able to cook, perform a number of household activi-
ties, drive a car, and otherwise lead an independent and
14 Such activities are, in addition, difficult to reconcile with Dr.
Shuttleworth’s conclusion that pressing the issue of legal action
during the years 1965 to 1973 could have produced the unpre-
dictable risk of a complete suicide. Plaintiffs’ Exhibit P-6.
72a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
active life. Tr, at 27-34. In addition, she endeavored to
ferret out medical evidence which might form the basis
of an actionable claim. Her activities, therefore, lead
this Court to believe that Mrs. Cohn was aware of, and
able to deal with this cause of action.
While the medical evidence is to the contrary, this Court
is not bound by said determination, Graboi, supra, 432 F.
Supp. at 572. The circumstances of this case do not war-
rant a finding of disability within the meaning of N.J.S.A.
2A :14-21. As pointed out hereinbefore, plaintiffs have
significantly shifted from their original position and argu-
ments. In 1974, when suit was instituted, Mrs. Cohn’s de-
pression was never brought to this Court’s attention. Now,
for the first time, plaintiffs contend her depression was so
severe that it rises to the level of a disability within the
meaning of N.J.S.A. 2A:14-21. The fact a mental disorder
of such magnitude was never before mentioned places the
seriousness of such condition in considerable doubt. More-
over, only Dr. Shuttleworth’s later reports coincide with
the conclusions of the other doctors. In 1974, when Mrs.
Cohn presumably was emerging from the critical stages of
her depression, Dr. Shuttleworth, her psychiatrist during
this period, made absolutely no mention of a severe emo-
tional disability so as to preclude legal action. The fore-
going facts, therefore, cast doubt upon the accuracy of
the medical reports and plaintiffs’ present allegations.
Moreover,, Mr. Cohn did not have to wait until 1974
before being able to discuss the suit with Mrs. Cohn. She
was his wife. He knew of and could very well relate the
tragic events which took place. This is not the ordinary
situation where a medical malpractice plaintiff is forced
to divulge the unpleasant details of unsuccessful surgery
7a
Second Opinion of the United States District Court for
the District of New Jersey, Filed July 26, 1979
or medical diagnosis to an unfamiliar attorney. Rather,
Mr. Cohn was (and remains) her husband. He was as
familiar as she with the injuries suffered, having been
married to her since 1951. Upon discovery of the coagu-
lant effects of oral contraceptives in early 1970, suit should
have been promptly initiated.
Accordingly, in view of the foregoing facts and circum-
stances, I find that Mrs. Cohn’s alleged depression did not
constitute a disability within the meaning of N.J.S.A. 2A:
14-21 so as to toll the running of N.J.S.A. 2A:14-2. De-
fendant’s summary judgment motion is granted, as the
within action is time-barred under N.J.S.A. 2A :14-2.
The defendant will submit an appropriate order within
10 days.
Datep: July 26, 1979.
T4a
Judgment of the United States Court of Appeals for the
Third Circuit
UNITED STATES COURT OF APPEALS
Fos tue Tuirp Circuir
A.
- ae
No. 79-1881
ROY HOPKINS
vs.
KELSEY-HAYES, INC.,
Appellant
(D. C. Civil No. 78-1646)
Nos. 79-2406 and 79-2605
SUSAN COHN and WALTER R. COHN, her husband,
Appellants in No. 79-2406
vs.
G. D. SEARLE & COMPANY,
Appellant in No. 79-2605
(D. C. Civil No. 74-0450)
On APPEAL FROM THE Unitep Srates District Courr
FOR THE District or NEw JERSEY
in
—
75a
Judgment of the United States Court of Appeals for the
Third Circuit
Present: Apams, Van Dusen anv Gartu, Circuit Judges
JUDGMENT
These causes came on to be heard on the records from
the United States District Court for the District of New
Jersey and were argued by counsel on February 11, 1980.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court, filed April 27, 1979 and appealed at our
No. 79-1881, be, and the same is hereby affirmed, and the
judgment of the said District Court filed August 6, 1979
and appealed at our Nos. 79-2406 and 79-2605, be, and the
same is hereby reversed, and the causes are remanded to
the particular District Court for further proceedings con-
sistent with the opinion of this Court. Costs in each case
are taxed against the respective defendant.
ATTEST:
Tomas Quinn
Clerk
July 23, 1980
76a
N.J. Ct. R. 4:4-4(c) (1) (The Long-Arm Rule)
4:44, Summons; Personat Service; In Personam Jvunris-
DICTION
Service of summons, writs and complaints shall be made
as follows:
(c) Corporations, ParTNersHiIPs AND ASSOCIATIONS
(1) Corporations. Upon a domestic or foreign corpora-
tion, by serving, in the manner prescribed in paragraph
(a), either an officer, director, trustee, or managing or gen-
eral agent; or any person authorized by appointment or by
law to receive service of process on behalf of the corpora-
tion; or the person at the registered office of the corpora-
tion in charge thereof. If service cannot be mate upon any
of the foregoing, then, it may be upon the pe:son at the
principal place of business of the corporation in this State
in charge thereof, or if there is no place of business in this
State, then upon any servant of the corporation within this
State acting in the discharge of his duties. If it appears
by affidavit of plaintiff’s attorney or of any person having
knowledge of the facts that after diligent inquiry and
effort personal service cannot be made upon any of the
foregoing and if the corporation is a foreign corporation,
then, consistent with due process of law, service may be
made by mailing, by registered or certified mail, return
receipt requested, a copy of the summons and complaint to
a registered agent for service, or to its principal place of
business, or to its registered office.
77a
N.J. R.R. 4:4-4(d) (The Long Arm Rule)—
Superceded in 1958 by N.J. Ct. R. 4:4-4(c) (1)
4:44. Summons: Personau Service
The summons and a copy of the complaint shall be
served together. The plaintiff shall furnish the person
making service with the original and a copy of the sum-
mons and as many additional copies thereof, each with a
copy of the complaint annexed, as there are persons to be
served. Service shall be made as follows:
(d) Upon a domestic or foreign corporation, by serving,
in the manner prescribed in paragraph (a), an officer, di-
rector, trustee or a managing or general agent; or if ser-
vice cannot be made upon any of the foregoing and if there
is no office or place of business within this State, by serv-
ing any servant of the corporation within this State acting
in the discharge of his duties; or by delivering a copy of
the summonses and complaint to any person authorized by
appointment or by law to receive service of process on be-
half of the corporation; or by leaving a copy of the same
at the registered office of the corporation with any person
in charge thereof;
78a
N.J.S.A. 2A:14-2 (The Statute of Limitations)
2A:14-2, 2 YEARS; ACTIONS FOR INJURIES TO PERSON BY
WRONGFUL AOT
Every action at law for an injury to the person caused
by the wrongful act, neglect or default of any person
within this state shell be commenced within 2 years next
after the cause of any such action shall have accrued.
79a
N.J.S.A. 2A:14-22 (The Tolling Statute)
2A :14-22, NoNRESIDENCE OF PERSON LIABLE
If any person against whom there is any of the causes
of action specified in sections 2A :14-1 to 2A:14-5 and 2A:
14-8, or if any surety against whom there is a cause of
action specified in any of the sections of article 2 of this
chapter, is not a resident of this state when such cause of
action accrues, or removes from this state after the ac-
crual thereof and before the expiration of the times limited
in said sections, or if any corporation or corporate surety
not organized under the laws of this state, against whom
there is such a cause of action, is not represented in this
state by any person or officer upon whom summons or
other original process may be served, when such cause of
action accrues or at any time before the expiration of the
times so limited, the time or times during which such per-
son or surety is not residing within this state or such cor-
poration or corporate surety is not so represented within
this state shall not be computed as part of the periods of
time within which such an action is required to be com-
menced by the section. The person entitled to any such
action may commence the same after the accrual of the
cause therefor, within the period of time limited therefor
by said section, exclusive of such time or times of nonresi-
dence or nonrepresentat:un.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.