Opinion
No. 1:94CV0702
May 24, 1995. Order Denying Costs September 12, 1995.
William Hawal, Sr., Spangenberg, Shibley, Traci, Lancione Liber, Cleveland, OH, for Candace Grover, Brent Grover.
David A. Schaefer, McCarthy, Lebit, Crystal Haiman, Cleveland, OH, Mark A. Hegarty, Shook, Hardy Bacon, Kansas City, MO, for Eli Lilly Company.
MEMORANDUM ORDER
This action is before the court on defendants' motion for summary judgment. For the following reasons, defendants' motion shall be granted.
Before plaintiff Candace Grover was born in 1953, her mother ingested the prescription drug Diethylstilbestrol (DES), a synthetic estrogen used to treat cancer and prevent miscarriages. Mrs. Grover, however, did not know until 1975 that she had been exposed in utero to DES.
In October of 1975, Mrs. Grover's doctor informed her that she had "abnormal cell growth" and a "DES cervix." A month later, she was told that she had adenosis, a precancerous condition, and that she could possibly have trouble conceiving children.
In 1979, three years after marrying plaintiff Brent Grover, Mrs. Grover's first child was born prematurely. Her second pregnancy ended in a miscarriage. On November 22, 1981, the Grovers' second child, Charles, was born eleven weeks premature. Because of his premature birth, Charles suffers from cerebral palsy.
On October 12, 1983, Dr. Robert Kiwi began consulting Mrs. Grover. He informed her that she would probably be unable to have more children due to her DES condition and complications from her pregnancy with Charles.
On December 13, 1983, Candace, Charles, and Brent Grover filed suit ( Grover I). Their complaint included claims for emotional, mental, and physical injuries incurred by Mrs. Grover due to her exposure to DES and Charles' premature birth. On April 10, 1989, Magistrate Judge Perelman granted defendants' motion to strike, on the grounds that it was time-barred, Mrs. Grover's claim for physical abnormalities which manifested themselves prior to filing suit.
The parties then certified a question to the Ohio Supreme Court. In Grover v. Eli Lilly, 63 Ohio St.3d 756, 757, 591 N.E.2d 696 (1992), the court held that Ohio does not recognize a cause of action on behalf of a child born prematurely with birth defects when the child was not directly exposed to the drug. Based on this determination, Judge Lambros first dismissed plaintiffs' other claims without prejudice. He then dismissed them with prejudice after the Sixth Circuit, in its decision in Grover by Grover v. Eli Lilly Co., 33 F.3d 716 (6th Cir. 1994), determined that plaintiffs' voluntary dismissal should have been with prejudice because plaintiffs had assured the court that resolution of the certified issue would be "determinative of this cause."
On March 31, 1994, Candace and Brent filed the complaint in the present case ( Grover II) alleging injuries arising from Candace's inability to bear more children safely. According to plaintiffs, these new claims were neither stricken from their original complaint nor affected by the Ohio Supreme Court's decision. Defendants, however, argue that plaintiffs' claims are: (1) precluded as res judicata, and (2) barred by the statute of limitations.
For a claim to be precluded by the doctrine of res judicata, (also called claim preclusion), four requirements must be met:
1. A final decision on the merits in the first action by court of competent jurisdiction;
2. The second action involves the same parties, or their privies, as the first;
3. The second action raises an issue actually litigated or which should have been litigated in the first action;
4. An identity of causes of action.
Sanders Confectionery Products v. Heller Financial, 973 F.2d 474, 480 (6th Cir. 1992) ( citing King v. South Cent. Bell Tel. Tel. Co., 790 F.2d 524 (6th Cir. 1986)). See also Gargallo v. Merrill Lynch, Pierce, Fenner Smith, 918 F.2d 658, 661 (6th Cir. 1990) (a final judgment is conclusive as to the parties and their privies if it is "rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction"). Plaintiffs do not dispute that the first two requirements have been met.
Plaintiffs' contention that the first requirement has not been met does not question the previous court's jurisdiction or the finality of its decision. Plaintiffs' argument, instead, essentially restates the later contention that this is a new, independent cause of action; therefore, I shall address it in conjunction with my analysis of the third and fourth requirements for res judicata.
The third element of res judicata prohibits parties from bringing claims they have already brought or should have brought. Plaintiffs contend that their new claims could not have been brought previously because they relate to a DES-induced injury which was not apparent until after Charles' birth, namely an incompetent cervix which causes prematurity and resultant cerebral palsy, which bars Mrs. Grover from having more children.
In Mrs. Grover's Second Amended Complaint in Grover I (Defs. Ex. 8, ¶ 6), she sought to recover for: (1) her physical injuries, and (2) the psychological harm caused by knowledge of her DES-based deformities. In her current complaint (Doc. 1, ¶ 7), Mrs. Grover seeks to recover for physical and psychological injuries allegedly caused by DES to the effect that she can no longer have children. Because Charles was born two years before Grover I was initiated, Mrs. Grover could have alleged injuries stemming from her incompetent cervix and its effect on her ability to bear children. Accordingly, I conclude that Mrs. Grover's claims for physical and psychological damages should have been brought in plaintiffs' first suit.
Paragraph Six of the Second Amended Complaint states:
That in consequence of the discovery by her in November of 1982, that she suffered from physical deformities associated with the ingestion of DES by her mother and the subsequent birth of her physically and mentally disabled child, plaintiff has suffered serious emotional injury, mental anguish and at times, disabling mental pain which has significantly impaired her ability to live a normal life.
Paragraph Seven of the Complaint alleges that, due to her mother's use of DES, Mrs. Grover:
Suffered serious and permanent injuries, including an incompetent cervix which precludes her from maintaining a normal pregnancy. Plaintiff has been forced to seek medical attention, incur medical expenses and endure severe emotional injury as a direct and proximate result of defendants' manufacture and sale of a defective drug and/or defendants' negligence.
Res judicata also requires an identity of claims. Identity of claims means an "identity of the facts creating the right of action and of the evidence necessary to sustain each action." Sanders Confectionery, supra, 973 F.2d at 484 ( citing Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981)). Because Mrs. Grover's claims rely on the same set of operative facts, there exists sufficient identity between the claims to meet the final requirement of res judicata. Because Magistrate Perelman determined that all claims relating to Mrs. Grover's physical injuries, including the consequences of having an incompetent cervix, were time-barred, defendants are entitled to summary judgment on the basis of res judicata as to all of plaintiffs' current claims.
Defendants also are entitled to summary judgment on Mr. Grover's claims, because his claims are derivative of Mrs. Grover's claims.
Defendants also are entitled to summary judgment on Mrs. Grover's claims because they are barred by the statute of limitations. According to the Ohio Supreme Court:
A cause of action based upon DES exposure accrues only when the plaintiff has been informed by competent medical authority that she has been injured by DES, or upon the date on which, by the exercise of reasonable diligence, she should have known that she has been so injured.Burgess v. Eli Lilly Co., 66 Ohio St.3d 59, 609 N.E.2d 140 (1993) (syllabus). Pursuant to O.R.C. § 2305.10, a plaintiff has two years from accrual in which to file suit.
In Ohio Supreme Court opinions, the syllabus contains the law of the case. State ex rel. Donahey v. Edmondson, 89 Ohio St. 93, 107-08, 105 N.E. 269 (1913).
In Grover I, plaintiffs conceded that "any direct claim for physical injuries by Candy Grover is time-barred." (Memorandum Opinion of Mag. Perelman, p. 1, April 10, 1989; Defs. Ex. 11). Plaintiffs now contend that the previous concession is not binding on them because Mrs. Grover was not informed by Dr. Kiwi until October 12, 1983, that there was more than a possibility that she would not be able to carry a child to term due to DES-related injuries to her cervix. Thus, according to plaintiffs, they filed their current claim in a timely manner when they filed their Second Amended Complaint in Grover I on August 1, 1985, within two years of the accrual of their cause of action on October 12, 1983, although the current Complaint was not filed until March 31, 1994.
Plaintiffs do not address the fact that, for this line of reasoning to apply, there needs to be an identity between the cause of action in Grover I which was dismissed by Magistrate Perelman and the new cause of action. Day v. NLO, Inc., 798 F. Supp. 1322, 1328 (S.D.Ohio 1992) (saving statute, O.R.C. § 2305.19, applies only if original action and subsequent action are substantially the same); Children's Hospital v. Ohio Dept. of Public Welfare, 69 Ohio St.2d 523, 433 N.E.2d 187 (1982).
The confusing interplay between the two cases is caused by the fact that Grover II was filed during the period of time between Grover I's dismissal without prejudice and Grover I's dismissal with prejudice pursuant to the Sixth Circuit's opinion. Because the dismissal of Grover I with prejudice wiped the slate clean of remaining claims, plaintiffs' current claims cannot relate back to the filing of plaintiffs' Second Amended Complaint. Accordingly, plaintiffs' claims are barred by O.R.C. § 2305.10 because they were not filed within two years of their accrual in October, 1983.
For the reasons stated above,
IT IS ORDERED THAT defendants' motion for summary judgment be and the same hereby is granted.
So ordered.
Memorandum Order on Motion to Tax Costs
On May 26, 1995, I entered an order granting defendant Eli Lilly and Company (defendant) summary judgment as to all claims asserted by plaintiffs. (Doc. 28). Defendant has moved for its costs incurred in defending against plaintiffs' action under Fed.R.Civ.P. 41(d) and 54(b) and 28 U.S.C. § 1920. For the reasons stated below, defendant's motion shall be denied without prejudice.In 1983, plaintiff Candace Grover and her sons filed suit. Mrs. Grover alleged emotional, mental, and physical injuries caused by her exposure to Diethylstilbestrol (DES). Her claims were dismissed because the statute of limitations had run. Her son, Charles' claims were defeated when the Ohio Supreme Court, ruling on a question certified to it by the District Court, held that an injured child could not state a claim against a pharmaceutical company when he had not been directly exposed to the drug.
On March 31, 1994, Mrs. Grover and her husband filed the present action, alleging injuries arising from Mrs. Grover's inability to safely bear more children. I concluded that these claims were precluded by res judicata and barred by the statute of limitations.
Defendant requests reimbursement for costs incurred in copying papers, telephone calls, court fees, postage, and depositions, in an amount of $22,656.09. Plaintiffs contend that these costs should be denied.
Defendant claims that under Rule 41(d) it is entitled to costs incurred in defending against Mr. and Mrs. Grover's claims in the prior action that was before Chief Judge Thomas Lambros, 88CV0483. Rule 41(d) provides that:
If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
Plaintiffs argue that Rule 41(d) is not applicable because their claim was not voluntarily dismissed. I agree. Plaintiffs' claims in the instant action were not voluntarily dismissed, but instead were dismissed with prejudice by Chief Judge Lambros. (Defendant's Exh. 14). Because Rule 41(d) only applies to those actions voluntarily dismissed, defendant is not entitled to recover the costs incurred in defending the action before Chief Judge Lambros.
Defendant also has moved, under Rule 54(d), for costs incurred in defending against plaintiffs' claims in the action before this court. Rule 54(d) states that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs." Although defendant, as prevailing party in the present action, may be entitled to costs, it has not itemized its costs and it is impossible for me to determine which costs were incurred in defending against the present action and which costs were incurred in defending against the action before Judge Lambros. For this reason, defendant's motion shall be denied without prejudice to refile for costs.
For the above reasons, it is
ORDERED THAT defendant's motion to tax costs shall be denied without prejudice.