APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Cvil No. 75-1691
Before Rosenn and Weis, Circuit Judges, and Hannum, District Judge.*fn*
This is an appeal from the Order of the United States District Court for the District of New Jersey dismissing appellants' suit for products liability as barred by the New Jersey Statute of Limitations which provides:
N.J.S.A. 2A:14-2. 2 Years; actions for injuries to persons by wrongful act.
Every action at law for an injury to the person caused by wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.
The case began as an action for medical malpractice and products liability. With the dismissal of certain defendants, however, it has become solely a products liability suit against appellee, Ethicon, Inc., which manufactured certain wire surgical sutures that were implanted in appellant Thomas Britt during an operation in March of 1970. Federal jurisdiction is based on diversity of citizenship.
On March 20, 1970, appellant underwent a gastrectomy for correction of a chronic duodenal ulcer. Initial recovery appeared to be normal, but in 1972 he began to experience sharp pain in the upper abdomen near the locus of the gastrectomy. These episodes became more frequent and intense and on October 17, 1974, appellant had exploratory surgery in an attempt to determine the source of his continuing discomfort. As a result of this second operation, it was discovered, in January 1975,*fn1 that some of the sutures used in the 1970 operation were defective. The complaint was filed in the District Court on October 1, 1975, naming as defendants the doctor who performed the gastrectomy, the hospital in which it occurred, the administrator of the hospital, and, because Ethicon, Inc."s identity was at that time unknown, "John Doe" as manufacturer of the wire sutures. Discovery elicited the name of Ethicon, Inc. as the manufacturer of the sutures, which information was given to plaintiff November 9, 1976. Thereafter, by notice of motion dated November 18, 1976, plaintiff sought leave to amend the complaint and name Ethicon, Inc. in place of the "John Doe" originally denominated. A consent order allowing the amendment was filed January 24, 1977 and the amended complaint was filed February 28, 1977 with service on Ethicon, Inc. effected on March 2, 1977. Ethicon, Inc. raised the Statute of Limitations defense by moving to vacate the District Court's Order allowing the amendment and the Court below granted summary judgment for appellee.*fn2
In so ruling, the District Court held first, that appellants' cause of action accrued, for Statute of Limitations purposes, in January, 1975 when it was first ascertained that the sutures were defective; and second, since the amended complaint was filed more than two years after the accrual date, the action was barred by the two year Statute of Limitations. Finally, the District Court held that the amendment did not relate back to the date the original complaint was filed (concededly within the two year period) because the amendment replacing John Doe with Ethicon, Inc. effectively introduced a new party to the action and the notice provisions of Fed.R.Civ.P. 15(c) which allow relation back of an amendment in such circumstances were not met.*fn3
Appellants raise two contentions on this appeal. First, they argue that the cause of action did not accrue until appellants knew the actual identity of the potential defendant. Thus, in the present case, since the identity of Ethicon, Inc. was not discovered until November 9, 1976, the filing of the amended complaint in February, 1977 would have been well within the two year period of the Statute of Limitations.
Second, appellants assert that even if the cause of action accrued in January, 1975 when the defect was discovered, the rule enunciated in Farrell v. Votator Division of Chemetron Corporation, 62 N.J. 111, 299 A.2d 394 (1973), is part of the substantive Statute of Limitations law of New Jersey which must ...