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02/23/88 Nancy Moore Et Al., v. A. H. Robins Company

February 23, 1988

NANCY MOORE ET AL., PLAINTIFFS-APPELLANTS

v.

A. H. ROBINS COMPANY, INC., DEFENDANT (ROBERT RICHMAN, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

520 N.E.2d 1007, 167 Ill. App. 3d 19, 117 Ill. Dec. 656 1988.IL.253

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARTMAN delivered the opinion of the court. STAMOS and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Plaintiffs Nancy and Kenneth Moore appeal from an order granting defendant Dr. Robert Richman's motion to dismiss counts III and IV of plaintiffs' six-count complaint. Count III alleged injury, pain and discomfort to Nancy through insertion by defendant of a Dalkon Shield into plaintiff Nancy's uterus, which caused an infection to develop, without warning her of its dangerous propensities. Count IV claimed Kenneth's loss of consortium.

The Dalkon Shield intrauterine device was inserted into Nancy's uterus in 1974. Codefendant, A. H. Robins Co. (Robins), not involved in this appeal, designed and manufactured the device. It was removed by Dr. Richman in 1975.

Nine years later, in November 1984, Nancy claims, she watched a television program explaining the effects of the Dalkon Shield. She then telephoned Dr. Richman's office and was informed by his nurse that the IUD inserted into Nancy's uterus in 1974 was a Dalkon Shield.

The Moores thereafter filed a six-count complaint with a jury demand against Dr. Richman and Robins on May 30, 1985. Counts I, II, V and VI were directed at Robins, asserting claims for product liability, breach of implied warranty and loss of consortium.

Pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), Dr. Richman moved to dismiss counts III and IV of plaintiffs' complaint on September 4, 1985, citing section

Nancy filed affidavits on September 4, 1985, and May 8, 1986, and filed a brief on November 14, 1986, opposing the motion to dismiss. In her September 4, 1985, affidavit, Nancy averred, among other things, "[that] sometime late in 1975 Dr. Richman informed me that I had to have the Dalkon Shield IUD, previously inserted in my body, removed." Without explanation for the contradiction, Nancy's affidavit of May 8, 1986, avowed, among other things, "[that] at no time was the affiant certain that the I.U.D. was a Dalkon Shield until shortly before this suit was filed [on May 30, 1985]." In his affidavit filed on December 23, 1985, Dr. Richman swore, among other things, "[that] Nancy Moore was advised that the IUD inserted on October 2, 1974 was a Dalcon [ sic ] Shield." In her November 14, 1986, trial court brief, Nancy insisted that Dr. Richman never revealed to her that the IUD was a Dalkon Shield and fraudulently concealed the true source of and reason for her pain and discomfort from her; therefore, plaintiffs had five years from the date Nancy discovered the cause of her injury, November 1984, in which to file their claim, citing section 13-215 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-215). Plaintiffs also argued that Dr. Richman was equitably estopped from asserting the statute of limitations.

Following a hearing on February 10, 1987, the circuit court granted the motion to dismiss, noting that the late filing of plaintiffs' claim would bar their cause of action were it not for their allegations of fraudulent concealment, which must be shown by some affirmative acts or representations calculated to and do, in fact, prevent discovery of the cause of action. Here, the court continued, plaintiffs did not present evidence of any affirmative acts or statements sufficient to establish fraudulent concealment by defendant, and defendant's mere silence concerning Nancy's condition was insufficient. Finally, the court held, even if Dr. Richman did conceal the source of Nancy's illness, the pain she allegedly experienced following the insertion of the IUD and the statement of Richman's associate one month after the dilatation and curettage made it "inconceivable . . . that a reasonable person would not have realized that she may not have been receiving proper diagnosis and treatment at some point in time and that point in time was reached more than five years before the filing of this action." This appeal followed. I

Plaintiffs initially contend the circuit court erred in granting Dr. Richman's motion to dismiss because facts presented by the parties were sufficient to raise a jury question as to when Nancy discovered the source and cause of her injury. Admitting that their complaint was filed after the four-year bar of their claim became effective, plaintiffs argue that Dr. Richman's representations and misrepresentations amounted to fraudulent concealment, tolling the statute of limitations until November 1984, when Nancy first suspected that "her condition of ill-being was related to the Dalkon Shield."

Nancy's affidavits and responses to Dr. Richman's motion to dismiss, averred that: the IUD was inserted in June 1974, and soon thereafter she developed pain and an infection; during each visit to Dr. Richman concerning her ailments, she inquired as to the source and reason for the pain and infection, and Dr. Richman responded, "Do not worry about it." Nancy further stated that: "sometime late in 1975," Dr. Richman told her the IUD had to be removed; Nancy repeatedly asked why the removal was necessary and he refused to explain, saying only, "Do not ...


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