Filed: Sep. 16, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-60393 _ SHIRLEY C. WILBANKS, D.S. #D.S. 58827, Plaintiff-Appellant, versus A. H. ROBINS COMPANY, INCORPORATED, a Virginia Corporation, by service on The Dalkon Shield Claimants’ Trust; ET. AL., Defendants, THE DALKON SHIELD CLAIMANTS’ TRUST, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Mississippi (1:97-CV-18-J-A-D) _ September 15, 1999 Before KING, Chief Judge, JONES, and STEWART, Ci
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-60393 _ SHIRLEY C. WILBANKS, D.S. #D.S. 58827, Plaintiff-Appellant, versus A. H. ROBINS COMPANY, INCORPORATED, a Virginia Corporation, by service on The Dalkon Shield Claimants’ Trust; ET. AL., Defendants, THE DALKON SHIELD CLAIMANTS’ TRUST, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Mississippi (1:97-CV-18-J-A-D) _ September 15, 1999 Before KING, Chief Judge, JONES, and STEWART, Cir..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-60393
_______________________
SHIRLEY C. WILBANKS, D.S. #D.S. 58827,
Plaintiff-Appellant,
versus
A. H. ROBINS COMPANY, INCORPORATED, a Virginia Corporation,
by service on The Dalkon Shield Claimants’ Trust; ET. AL.,
Defendants,
THE DALKON SHIELD CLAIMANTS’ TRUST,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:97-CV-18-J-A-D)
_________________________________________________________________
September 15, 1999
Before KING, Chief Judge, JONES, and STEWART, Circuit Judges.*
PER CURIAM:
Ms. Wilbanks filed suit against The Dalkon Shield
Claimants’ Trust, the entity remaining after the manufacturer of
The Dalkon Shield, A.H. Robins, Inc., filed bankruptcy. She
asserted in January 1986 that she was injured by an I.U.D.
manufactured by Robins and inserted in 1971. During a pregnancy in
1972, while the I.U.D. was in place, she suffered injury which made
it difficult to carry future pregnancies. The use of the device
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
caused other gynecological problems eventually leading up to a
hysterectomy in 1981. The magistrate judge dismissed, ruling that
Wilbanks’ claim was barred by the six-year Mississippi statute of
limitations. Miss. Code Ann. § 15-1-49 (1972) (addendum).
Wilbanks’ action is barred unless she did not and could not have
discovered her injuries until after January 1980.
Based on appellant’s deposition, the magistrate judge
found that she was aware throughout the 1970s of potentially
serious gynecological problems and that she suspected the I.U.D.
was the cause of those problems. On appeal, appellant asserts that
limitations should not run until she really knew that the injuries
were illegally caused by the A.H. Robins product -- and she did not
really know this, because her doctors had always equivocated on the
cause. Like the district court, we find this contention unavailing
and unsupported by Mississippi law.
Construing the relevant statute of limitations, the
Mississippi Supreme Court stated:
The cause of action accrues and the limitations period
begins to run when the plaintiff can reasonably be held
to have knowledge of the injury or disease. . . . Though
the cause of the injury and the causative relationship
between the injury and the injurious act or product may
also be ascertainable on this date, these factors are not
applicable under section 15-1-49(2) [the analog to
section 15-1-49] . . .
Owens-Illinois, Inc. v. Edwards,
572 So. 2d 704 (Miss. 1990). The
Mississippi Supreme Court thus interpreted the relevant statute in
a way that rejects a requirement that the plaintiff know the cause
of her injury or the connection between the injury and the
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injurious product in order for limitations to run. She need only
know of the injury itself, as Wilbanks did here.
The other cases cited by Wilbanks are factually
distinguishable. For these reasons, the judgment of the district
court is AFFIRMED.
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