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Berry v. G.d. Searle & Co.





Appeal from the Circuit Court of Cook County; the Hon. Albert E. Hallett, Judge, presiding.


On May 29, 1969, plaintiffs, Martha Berry and her husband, filed a complaint in the circuit court of Cook County which was thereafter amended. In a second amended complaint Martha Berry (hereafter referred to as plaintiff) sought damages for injuries allegedly sustained by her after having taken a birth-control pill commonly known as Enovid. This drug was manufactured by defendant G.D. Searle & Co. (hereafter Searle), and prescribed and sold to her on and before May 29, 1965, by the co-defendant, Planned Parenthood Association of Chicago (hereafter Association). The initial action was filed more than two years after plaintiff sustained her alleged injury, and the circuit court granted defendants' motion to dismiss counts I and II of the second amended complaint, holding that recovery thereunder was barred by section 14 of the Limitations Act (Ill. Rev. Stat. 1969, ch. 83, par. 15). This appeal follows.

The first count was premised upon a breach of an implied warranty of the fitness of the product for a particular purpose as set forth in section 2-315 of the Uniform Commercial Code (Ill. Rev. Stat. 1965, ch. 26, par. 2-315). It averred that notwithstanding this implied warranty Enovid caused serious and dangerous side effects upon the user, including constriction of blood vessels, and that neither defendant warned of this possibility; that on or about May 30, 1965, as a result of the breach of this warranty, plaintiff suffered a cerebral vascular accident (stroke) and paralysis of portions of her body after ingesting the drug; and that defendants received notice of the purported breach of warranty within a reasonable time. The second count, which was predicated upon a theory of strict liability in tort, asserted that the drug was unreasonably dangerous to its users for the specific reason heretofore mentioned; that this dangerous condition existed from the time the drug was manufactured; and that plaintiff did not learn that this drug caused her injury until June 1, 1967.

The primary issue presented for review is whether the four-year statute of limitations established by section 2-725(1) of the Code's sales article governs an action brought for personal injury allegedly arising from a breach of implied warranty. (Ill. Rev. Stat. 1969, ch. 26, par. 2-725(1).) However, if that section is inapplicable and the cause of action premised on breach of an implied warranty might therefore be considered barred as having been untimely filed, plaintiff maintains that an action predicated on strict tort liability is not precluded by expiration of the general two-year statute of limitations of section 14. It is her position that this action did not accrue until she learned of the cause of the injury. Since it was alleged that she was unaware of the cause of her condition until June 1, 1967, she argues that the statute of limitations must be computed from that date to determine if the action was timely filed.

In pertinent part sections of the Code provide:

"Section 2-315. Implied Warranty: Fitness for Particular Purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is * * * an implied warranty that the goods shall be fit for such purpose." Ill. Rev. Stat. 1965, ch. 26, par. 2-315.

"Section 2-318. Third Party Beneficiaries of Warranties Express or Implied.

A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this Section." Ill. Rev. Stat. 1965, ch. 26, par. 2-318.

"Section 2-715. Buyer's Incidental and Consequential Damages.

(2) Consequential damages resulting from the seller's breach include

(b) injury to person or property proximately resulting from any breach of warranty." Ill. Rev. Stat. 1965, ch. 26, par. 2-715(2).

"Section 2-719. Contractual Modification or Limitation of Remedy.

(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the ...

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