Tresemer v. Barke

California Court of Appeal · Torts

Tortsmedical malpracticesummary judgmentstatute of limitationsduty to warnsummary judgmentdelayed discoveryinjury vs wrongful act

Facts

Plaintiff alleged that Dr. Barke inserted a Dalkon Shield in August 1972 and that she was later injured by it. Her third amended complaint alleged both that he negligently or willfully inserted the device without proper investigation and that, after later learning it was dangerous, he failed to warn her of that hazard. She alleged she did not discover the cause of her injury until May 5, 1975, and that her failure to discover it earlier was not due to lack of diligence. Dr. Barke moved for summary judgment with affidavits stating the device was considered safe in 1972, concerns arose only around mid-1974, he provided plaintiff the manufacturer's package insert, and his conduct conformed to community standards.

Issue

Did Dr. Barke's summary judgment papers establish, as a matter of law, that plaintiff's claims were barred by the statute of limitations or otherwise lacked merit? More specifically, did those papers negate all theories alleged, including a post-insertion duty to warn after the physician later learned of the device's dangers?

Rule

A defendant seeking summary judgment must prevail on the strength of his own showing by conclusively negating a necessary element of the plaintiff's case or establishing a complete defense; absent such a showing, the plaintiff need not file counteraffidavits. For limitations purposes, in medical negligence actions, the one-year period runs when plaintiff discovers or should discover the injury and its negligent cause, and the outside period runs from "injury," meaning the damaging effect, not the wrongful act itself. A physician who later acquires actual knowledge that a device previously prescribed or inserted is hazardous may owe a continuing duty, arising from the physician-patient relationship and ordinary negligence principles, to warn the patient.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Diego, Dr. Neil Porter implanted a contraceptive device in Ava Lin in 2019. Ava sued in March 2024, alleging she first learned in July 2023 that her pelvic infection was caused by the device and that she could not reasonably have discovered that connection earlier; Dr. Porter moved for summary judgment using only a declaration stating he treated Ava once in 2019 and she filed more than three years later, and Ava filed no opposition.

Should the court grant summary judgment on statute-of-limitations grounds?

Explanation. A defendant moving for summary judgment must prevail on the strength of his own showing. Even if the plaintiff files no opposition, judgment is improper unless the defendant conclusively negates a necessary element or establishes a complete defense. For medical-negligence limitations, treatment date alone does not prove the date of injury or discovery. Because the papers here show only the 2019 treatment date, they do not eliminate triable issues as to delayed discovery. (Derived from Tresemer v. Barke (n.d.).)