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12/20/96 SHARON MACKERETH v. G.D. SEARLE AND

December 20, 1996

SHARON MACKERETH, PLAINTIFF-APPELLANT,
v.
G.D. SEARLE AND COMPANY, SEARLE PHARMACEUTICALS, INC., AND SEARLE LABORATORIES, A DIVISION OF SEARLE PHARMACEUTICALS, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Jennifer Duncan-Brice, Judge Presiding.

As Corrected December 30, 1996. Released for Publication January 29, 1997.

The Honorable Justice Greiman delivered the opinion of the court: Cerda, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Sharon Mackereth (plaintiff), a Minnesota resident, brought this action against G.D. Searle & Co. (Searle) to recover damages for injuries that she attributes to her use of a Copper-7 intrauterine contraceptive (IUD or Cu-7) manufactured and marketed by Searle. Plaintiff's complaint consisted of three counts, alleging fraud, negligence and strict liability. Pursuant to a section 2-619 motion brought by Searle (735 ILCS 5/2-619 (West 1992)), the trial court dismissed plaintiff's complaint as time-barred under the Minnesota statute of limitations. The issue before this court is whether plaintiff's complaint was timely filed. For the reasons that follow, we affirm the trial court's order of dismissal.

Plaintiff began using the CU-7 in July of 1981. The IUD was prescribed and inserted in Minnesota. Plaintiff used the IUD for a two-year period, during which time she experienced irregular bleeding, heavier menstrual periods, cramps and painful intercourse. Plaintiff had the IUD removed in July of 1983.

Subsequently, plaintiff suffered a series of gynecological injuries and underwent several remedial procedures, including a diagnostic laparoscopy in 1985, which revealed that both her ovaries were covered with adhesions; surgery in 1989 which revealed adhesions covering plaintiff's fallopian tube and a diagnosis of pelvic inflammatory disease (PID); surgical intervention of three ectopic pregnancies in 1991, 1992 and 1993; the removal of a fallopian tube; and residual infertility.

Plaintiff's complaint alleges that, although she was examined and treated by numerous physicians since 1983, she was not informed until May of 1993 that her injuries were likely caused by use of the Cu-7 10 years earlier.

On February 23, 1995, 12 years after the CU-7 was removed, plaintiff filed this action in the circuit court of Cook County, Searle's principal place of business being Illinois. The trial court granted Searle's motion to dismiss, finding her claim had expired under the applicable Minnesota statute of limitations.

Initially, we must determine which law is to be applied in this case. Statutes of limitation are procedural, affecting only the remedy available and not the substantive rights of the parties, and are generally governed by the law of the forum state. Cox v. Kaufman, 212 Ill. App. 3d 1056, 156 Ill. Dec. 1031, 571 N.E.2d 1011 (1991). Accordingly, since Illinois is the forum state, this court looks to Illinois' law relating to the limitation of actions.

Our General Assembly has enacted a "borrowing statute" addressing the statute of limitations to be applied where the cause of action has arisen outside our state. It provides:

"Foreign limitation. When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State." 735 ILCS 5/13-210 (West 1992).

Plaintiff's cause of action undeniably arose in Minnesota, where the IUD was prescribed, placed, used and caused injury. Accordingly, we look to Minnesota law in order to determine whether plaintiff's claim was timely. The applicable Minnesota statute of limitation states that the following actions shall be commenced within six years:

"(5) For criminal conversation, or for any other injury to the person or rights of another, not arising on contract, ...


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