Opinion
January 13, 1986
Appeal from the Supreme Court, Suffolk County (Orgera, J.).
Judgment reversed, with costs, defendant's motion denied, and matter remitted to the Supreme Court, Suffolk County, for further proceedings.
This action was brought to recover damages for personal injuries to, and for the wrongful death of, plaintiff's mother, which allegedly occurred as a result of the latter's ingestion of overdoses of Lanoxin brand digoxin tablets, manufactured by defendant. The decedent was administered Lanoxin continuously from 1965 through October 7, 1978. She died on March 26, 1981.
The action was commenced on September 28, 1981. The complaint, as amplified by plaintiff's answers to defendant's interrogatories, alleged, inter alia, that (1) defendant was negligent in failing to warn that plaintiff's decedent's dosages of Lanoxin had to be reduced and (2) as a result of this failure to warn, plaintiff's decedent continued to ingest an improper dosage of the drug which caused her injuries and ultimate death. After joinder of issue, defendant moved for summary judgment dismissing the complaint as time barred by the applicable Statute of Limitations. Specifically, defendant submitted documentary evidence, as well as certain answers given by plaintiff in response to defendant's interrogatories, which indicated that plaintiff's decedent first suffered her alleged injuries, and discovered the same, as early as 1972, and surely no later than 1976.
Special Term agreed with defendant's argument, and accordingly dismissed the complaint in its entirety (including the causes of action for wrongful death) pursuant to CPLR 214 (5) and Kelliher v New York Cent. Hudson Riv. R.R. Co., ( 212 N.Y. 207).
We disagree with the holding of Special Term.
It is now well established by the Court of Appeals that the time to sue to recover damages for injuries resulting from the ingestion of a chemical substance runs "from the last exposure to the substance, not from discovery of the injury" (Martin v Edwards Labs., 60 N.Y.2d 417, 426; Matter of Steinhardt v Johns-Manville Corp., 54 N.Y.2d 1008). Moreover, as the United States Court of Appeals for the Second Circuit recently noted, there is "no reason to assume" that the New York Court of Appeals would alter this formulation of the Statute of Limitations "when the last exposure occurs after — rather than before — discovery of the harm" (Ward v Desacham Co., 771 F.2d 663, 667). Since the decedent's last exposure to the alleged improper dosage of the defendant's drug occurred in October 1978, the plaintiff's cause of action to recover damages for personal injuries accrued at that time, and the action is not time barred. Mangano, J.P., Brown, Rubin and Lawrence, JJ., concur.