Appeal from the United States District Court for the Western District of Wisconsin. No. 81-C-398 -- John C. Shabaz, Judge.
Cummings, Chief Judge, Pell, Circuit Judge, and Walter E. Hoffman, Senior District Judge.*fn*
Plaintiff commenced this action on June 24, 1981, against A.H. Robins Co. (Robins), for compensatory and punitive damages for personal injuries arising out of her use of the "Dalkon Shield", an intrauterine device*fn1 manufactured by Robins. On May 12, 1982, the District Court entered summary judgment in Robins' favor finding that plaintiff's claims were barred by the Wisconsin three-year statute of limitations for personal injury actions.*fn2 Plaintiff appeals the grant of summary judgment.
The plaintiff, Kathleen M. Hansen, had a Dalkon Shield inserted in her uterus on May 28, 1974, by Dr. Robert Fabiny. In late May, 1978, she began experiencing problems, such as bleeding between menstrual periods (spotting), nausea, inability to digest food comfortably, diarrhea, nervousness, cramping and abdominal pains, and occasional fever. On June 13, 1978, plaintiff saw Dr. Patrick Macken about her condition. On June 26, 1978, plaintiff was seen by Dr. Fabiny, who concluded that she probably had pelvic inflammatory disease (P.I.D.).*fn3 Plaintiff recovered from the P.I.D. infection, but the disease left her fallopian tubes blocked, rendering her incapable of bearing children.
On June 24, 1981, plaintiff commenced this diversity action against Robins, alleging that the unique and defective design of the Dalkon Shield tailstring caused her P.I.D., because it allowed bacteria to invade her uterus. Robins raised the Wisconsin three-year statute of limitations for personal injury actions as a bar to plaintiff's claims and moved for summary judgment.
Unfortunately, when the District Court ruled on the summary judgment motion there were no Supreme Court of Wisconsin decisions that directly addressed when the statute of limitations begins to run in a disease situation. Extrapolating from a series of decisions of the Supreme Court of Wisconsin which did not deal specifically with the disease situation, the District Court concluded that under Wisconsin law the cause of action accrues, and the statute of limitations begins to run, at the time of injury. On May 12, 1982, the District Court granted summary judgment in Robins' favor finding that the statute of limitations barred the action. The court determined that plaintiff's injury "occurred sometime prior to June 13, 1978" and thus, "the cause of action accrued prior to June 13, 1978."
Subsequent to the District Court decision in this case, this court decided Neubauer v. Owens-Corning Fiberglas Corp., 686 F.2d 570 (7th Cir. 1982). Neubauer involved the question of when a cause of action for asbestos-caused injuries accrues, and when the statute of limitations begins to run under the Wisconsin statute of limitations for personal injury actions. This Court held, inter alia, that in progressive disease cases "the cause of action accrues when the . . . disease becomes diagnosable -- e.g., provable by medical evidence in court -- a standard that ordinarily is independent of what occurrences might attract the plaintiff's attention." 686 F.2d at 577.
When this court rendered its decision in Neubauer, we found no controlling decisions of the Wisconsin courts. However, Wisconsin recently adopted a certification procedure whereby an unsettled question of state law may be decided by the Supreme Court of Wisconsin upon request of the United States Supreme Court, the United States Court of Appeals, or the highest appellate court of another state.*fn4 Since the present case poses a statute of limitations question analogous to that in Neubauer, we chose to resort to the certification procedure so that the Supreme Court of Wisconsin may make a finding determinative of this issue. The question presented was:
When does the cause of action accrue within the meaning of the Wisconsin statute of limitations for personal injury actions Wis.Stat. §§ 893.04,.54, when the injury to the plaintiff was caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance?
In response to this inquiry the Supreme Court of Wisconsin held, inter alia, that henceforth the "discovery rule" is to be applied. Under this rule, "tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first."*fn5 The court went further, applying the discovery rule to the facts of the present case, it concluded that Hansen acted diligently, and thus her claim accrued when the injury was discovered on June 26, 1978.*fn6 "Therefore, her complaint, filed on June 24, 1981, was timely."*fn7
Because of this holding, the order of the District Court granting defendant's summary judgment is VACATED, and the case is REMANDED for further proceedings consistent with the decision of the Supreme Court of Wisconsin.