Court of Appeals of Texas,
Nellie BELMONTE, Appellant,
BAXTER HEALTHCARE CORPORATION and Baxter International, Inc., Appellees.
April 16, 2002.
*1 Nellie Belmonte appeals the trial court’s summary judgments granted in favor of Baxter Healthcare Corporation and Baxter International, Inc. (Baxter). In three issues, Belmonte generally contends the trial court erred by granting summary judgment because there are fact issues regarding when she first knew of her injury and whether Baxter defrauded her. For the reasons that follow, we affirm the trial court’s judgment in part and reverse and remand in part.
Factual and Procedural Background
Nellie Belmonte received liquid breast implants. The first set, manufactured by Heyer–Schulte,1 were filled with saline. These implants hardened and were painful. In 1982, the first set of implants were removed, and Belmonte received a second set, also manufactured by Heyer–Schulte. The second set of “double lumen” implants had a silicone center surrounded by saline. By 1989, Belmonte was experiencing pain, fatigue, and other symptoms that she related to her breasts. She stopped working. She underwent surgery to remove lumps from her breasts. Although she suspected her symptoms were related to her implants, her doctor assured her they were not. In 1991, she had the implants removed. On one of the implants, the outer saline shell was deflated or ruptured;2 however, the inner shell containing the silicone center remained intact. She brought suit against Baxter and others on November 17, 1992. Baxter moved for summary judgment alleging that all of Belmonte’s claims were barred by the applicable statutes of limitations. The trial court granted summary judgment for Baxter on all claims except Belmonte’s claim for fraud. Baxter then filed a second motion for summary judgment directed to the fraud claim. The trial court granted this motion. Belmonte appeals the two summary judgments.
Negligence, Strict Liability and Deceptive Trade Practices
In her first issue, Belmonte argues the trial court erred by granting summary judgment on the issue of limitations. Baxter responds that it was entitled to judgment on the issue of limitations with respect to Belmonte’s personal injury and DTPA claims because the undisputed facts establish Belmonte had knowledge of the facts giving rise to her claims no later than 1989. Belmonte’s claims for strict liability, negligence, gross negligence, and DTPA violations are governed by a two year statute of limitations.3 See TEX. BUS. & COM.CODE ANN. § 17.565 (Vernon 1987) (actions brought under deceptive trade practices act must be brought within two years).
*2 A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense by showing the plaintiff’s claims accrued outside the statutory limitations period. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998).
Here, however, Belmonte has pleaded, and Baxter does not dispute, the application of the discovery rule to her causes of action. When the discovery rule applies, “accrual is tolled until a claimant discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another.” Winograd, 956 S.W.2d at 530. Thus, Baxter must establish as a matter of law that Belmonte knew or should have known her problems were related to her implants more than two years prior to the date she filed her lawsuit.4
Baxter claims it is entitled to judgment on the ground of limitations because the record shows that when giving several doctors her medical history, Belmonte dated the onset of her medical problems associated with her implants as beginning in 1988 or 1989. Moreover, Belmonte applied for and received disability benefits. On her application, she claimed her disabling condition began in November 1989 and described it as being the result of multiple breast implants and that knowledge was sufficient to trigger limitations.
To meet her burden to create a fact issue regarding whether she knew or should have known of her injury and its likely cause, Belmonte relies on her affidavit attached to her summary judgment response. In her affidavit, Belmonte stated she “began to suspect that [her] implants were responsible for [her] illness as well as the lumps in [her] breast,” but her doctor assured her it had “nothing to do with [her] implants.” According to Belmonte, it was not until October 15, 1991, when her implants were removed, that she “first ... knew that [her] implants had ruptured and that the capsules around [her] implants were filled with silicone.” Moreover, she explained that the medical histories relied on by Baxter to show her knowledge in 1989 were made after that date, and “were based upon what [she] knew and what [she] believed at the time the statement was made, not what [she] knew or believed in 1989 .”
Baxter argues this testimony consists of “conclusory, unsubstantiated claims” that do not contradict Belmonte’s deposition testimony that she knew in 1989 her problems were related to her implants. If conflicting inferences may be drawn from a deposition and from an affidavit filed by the same party in opposition to a motion for summary judgment, a fact issue is presented. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex.1988). Here, conflicting inferences can be drawn. According to Belmonte’s deposition testimony, she “knew” her problems were related to her implants in 1989. According to her affidavit, her doctor dispelled this notion, and Belmonte did not relate her problems to her implants until 1991. In light of this conflicting evidence, Baxter did not meet its summary judgment burden of showing there was no genuine issue of material fact.
*3 Moreover, Belmonte’s application for disability benefits is not dispositive. Her suspicions about the nature and cause of her problems reflected in her disability application are only one fact to be considered along with the other facts and circumstances of the case. See Childs, 974 S.W.2d at 45–46 (where doctor dispelled plaintiff’s suspicion that his health problems were work-related, and where defendant failed to show a diligent investigation would have led to discovery of occupational illness, summary judgment not proper).
To the extent Baxter argues summary judgment was proper because Belmonte has failed to come forward with evidence showing she has been diagnosed with a latent disease, we disagree. For purposes of summary judgment on limitations grounds, the burden to show a link between Belmonte’s health problems and her implants was Baxter’s. See Winograd, 956 S.W.2d at 230 (defendant bears burden of negating discovery rule as matter of law). Baxter moved for summary judgment only on limitations grounds; it did not move for summary judgment on grounds of causation. Thus, Belmonte’s only burden as nonmovant was to raise a genuine issue of material fact regarding when she knew or when she should have known that her health problems were linked to her implants. This she has done. We sustain Belmonte’s first issue.
Breach of Warranty
In her second point of error, Belmonte argues summary judgment on her breach of warranty claim was improper because there was evidence Baxter provided a lifetime warranty on the implants it manufactured. Therefore, Belmonte argues her claims did not accrue until she had discovered the breach of warranty. The statute of limitations for Belmonte’s claims for breach of warranty is found in section 2.725(b) of the Texas Business and Commerce Code. This statute provides:
A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
TEX. BUS. & COM.CODE ANN. § 2.725(b) (Vernon 1994) (emphasis added).
Belmonte claims Baxter made an explicit warranty extending to “future performance” by promising the implants “should last a lifetime.” Thus, she argues the discovery rule contained in section 2.725(b) extends the period of limitations to when she discovered, or should have discovered, Baxter’s warranty had been breached.
*4 Belmonte’s claim can be for breach of an express warranty only; the Texas Supreme Court has held “an implied warranty cannot be explicitly extended to future performance.” Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 547–48 (Tex.1986). Therefore, the only question before us is whether the alleged warranty is an express warranty that explicitly extends to future performance.5 Belmonte cites no Texas case, and we have found none, for the proposition that a promise a product “should last a lifetime” is an express warranty extending to future performance. In Safeway, the court stated:
Express warranties that meet the “explicitness” exception of section 2.725(b) may extend to future performance. Courts construe the exception narrowly, with the emphasis on the term “explicitly.” For an express warranty to meet the exception, it must make specific reference to a specific date in the future.
710 S.W.2d at 548 (citations omitted) (emphasis added). In applying this rule, the Safeway court held there was a fact question as to whether a representation that a roof was “bondable up to 20 years” was an explicit reference to future performance. Id. Certainteed, the party who allegedly made the warranty, argued the words meant only that a 20 year bond could have been obtained at the time the goods were tendered. Id. Certainteed, however, had also offered expert testimony that in the roofing industry, the words “20–year bonded type roof” meant “a roof that will last at least 20 years before it has to be removed and replaced .” Thus, a fact issue was presented about whether the words constituted an explicit reference to future performance. Id.
Unlike the warranty in Safeway, the warranty Belmonte alleges does not “make specific reference to a specific date in the future.” Id. There is no wording similar to Certainteed’s “bondable up to 20 years” promise that could be construed as a representation that the implants would last 20 years or any other definite period of time. Further, the alleged warranty was the implants “should” last a lifetime, not a guarantee the implants would conform to a particular standard for the duration of Belmonte’s life. Without a specific reference to a specific date in the future, the alleged warranty does not meet the exception of section 2.275. See 818 F.2d 863 (5th Cir.1987) (language in brochure that product was “designed for long life” was not express warranty; no specific reference to specific date in the future as required by Texas Supreme Court in Safeway ).
As a matter of law, Baxter’s alleged promise that the implants “should last a lifetime” does not constitute a warranty that “explicitly extends” to future performance. Therefore, the “future performance” exception of Section 2.275 does not apply. Belmonte’s claims for breach of warranty were barred by limitations four years after delivery of the implants. Thus, her breach of warranty claims for her 1979 implants6 were barred as of 1983, and for her 1982 implants as of 1986. Belmonte did not bring suit until several years after limitations on these claims had run. Baxter is entitled to judgment as a matter of law on Belmonte’s breach of warranty claims.
*5 In her third point of error, Belmonte argues summary judgment was improper on her fraud claim. Unlike the motion for summary judgment on the negligence, strict liability, and DTPA claims, Baxter’s “no-evidence” summary judgment clearly challenged the causation element of Belmonte’s fraud claim.7 Under Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex.App.-Dallas 2000, no pet.).
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. General Mills, 12 S.W.3d at 833. Therefore, Belmonte had the burden of coming forward with more than a scintilla of evidence that Baxter’s representation was the proximate cause of her injuries. Belmonte has not offered any such evidence; indeed, in neither her summary judgment response nor her brief on appeal does she address the causation issue at all. Without evidence of an essential element of Belmonte’s fraud claim, Baxter is entitled to summary judgment. The trial court’s judgment as to Belmonte’s fraud claim is affirmed.
The trial court’s summary judgment on Belmonte’s claims for breach of warranty and fraud was proper. However, because Baxter did not establish as a matter of law that Belmonte knew or should have known more than two years prior to the date she filed suit that her implants caused her injuries, summary judgment on Belmonte’s claims for negligence, strict liability, and deceptive trade practices was improper. We reverse the judgment on these claims and remand the cause to the trial court.
Heyer–Schulte was a subsidiary of American Hospital Supply Corporation. Appellee Baxter Healthcare Corporation merged with American Hospital Supply Corporation and hence was one of the defendants in this litigation.
The parties disagree on whether the implant was “deflated” or “ruptured.”
Belmonte also sued Baxter for conspiracy to commit fraud. However, Belmonte did not respond to Baxter’s motion for summary judgment on this ground in the trial court and does not complain about this cause of action on appeal. Thus, we conclude it is waived. See Wilson v. Cinemark Corp., 858 S.W.2d 645, 647 (Tex.App.-Fort Worth 1993, no writ).
Belmonte offered summary judgment evidence that limitations was tolled by a class action suit filed in January of 1992. Belmonte herself filed suit in November of 1992. Baxter argues that limitations began to run in 1989, and thus would have expired prior to the filing of either the class action or Belmonte’s suit. Belmonte argues that limitations did not begin to run until October 1991, within the two-year period prior to her own lawsuit. Thus, neither party relies on the date of the class action and we need not decide whether limitations on Belmonte’s claims against Baxter were tolled by the class action.
Baxter contends there is no evidence it made any such warranty. Belmonte, however, offered evidence from her physicians that the manufacturers of her implants represented to the physicians the implants should last a lifetime. Testimony from Belmonte’s doctors is at least some evidence of the alleged warranty.
Further, the undisputed evidence shows the 1979 implants were removed in 1982 due to problems Belmonte was experiencing with pain and hardening of the implants. Thus, as of the 1982 removal, Belmonte knew the 1979 implants did not last a lifetime. The discovery rule in section 2.725(b) extends accrual of the cause of action only to “when the breach is or should have been discovered.” Even applying this discovery rule, Belmonte’s cause of action for breach of express warranty as to the first set of implants would have accrued at least as of the 1982 removal, and limitations would have barred the cause of action as to those implants four years later in 1986. Belmonte’s suit was not filed until 1992. Thus, even assuming the alleged warranty was explicit enough to extend to future performance, any action for breach of that warranty as to the first set of implants is barred by limitations.
Baxter also moved for summary judgment on the ground that there was no false representation. Belmonte, however, offered evidence from her physicians that the manufacturers of her implants represented to the physicians the implants should last a lifetime. While Baxter cites to evidence of the detailed product information sheets accompanying its implants to disprove any such lifetime warranty, on summary judgment we view the evidence in the light most favorable to the nonmovant. General Mills Rests., Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.). Testimony from Belmonte’s doctors is at least some evidence that Baxter represented the implants should last a lifetime.