NORGART v. UPJOHN COMPANY

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Court of Appeal, First District, Division 3, California.

Leo NORGART, Individually and as Administrator, etc., et al., Plaintiffs and Appellants, v. UPJOHN COMPANY, Defendant and Respondent.

No. A076401.

Decided: May 27, 1998

Peter Ticktin, Boca Raton, Caron Speas, Miami Beach, for Plaintiffs and Appellants. Michael F. Healy, Frederick D. Baker, Sedgwick, Detert, Moran & Arnold, San Francisco, for Defendant and Respondent.

Leo and Phyllis Norgart (the Norgarts) appeal from summary judgment in favor of respondent Upjohn Company (Upjohn) in their action for the wrongful death of their daughter.1  The Norgarts are the parents of Kristi Norgart McBride (Kristi), who committed suicide in October 1985.   Six years later, on October 16, 1991, they filed suit against Upjohn on a product liability theory,2 claiming that side effects of Upjohn's manufactured sleep medication Halcion caused their daughter to become depressed and ultimately drove her to commit suicide.   Upjohn, relying on the holding in Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959, 38 Cal.Rptr.2d 298 (Bristol-Myers ) sought summary judgment against the Norgarts on the ground that the statute of limitations barred their suit because it had begun to run more than one year prior to the filing of the action, when the Norgarts first suspected that someone's negligence had caused their daughter's suicide, even if they could not identify the negligent act or omission or the wrongdoer at the time.   The Norgarts contended, in contrast, that the statute of limitations did not begin to run until they first suspected or reasonably should have suspected Halcion's role in causing their daughter's death, regardless of whether they had earlier suspicions of specific but unrelated causative acts of wrongdoing, namely Kristi's husband's physical abuse of her and her psychiatrist's failure to treat her depression with the drug lithium.   Thus the issue before us is, where separate, unrelated acts of wrongdoing by different parties concur to cause a plaintiff's injury, does a cause of action against a party for a particular act of wrongdoing accrue and thus the statute of limitations commence to run (1) when the plaintiff suspects or reasonably should suspect that someone's wrongdoing caused the injury, or only (2) when the plaintiff suspects or reasonably should suspect that the specific wrongdoing for which the party is allegedly liable caused the injury.

In this case we hold (contrary to Bristol-Myers ) where separate and distinct acts or omissions concur in causing injury, a cause of action does not accrue and thus the statute of limitations period does not commence with respect to a potential defendant until the plaintiff suspects or should suspect that the injury was caused by the specific wrongdoing for which that party is allegedly liable.   The Norgarts' cause of action against Upjohn did not accrue, and thus the statute of limitations did not begin to run on their claim against Upjohn, until the Norgarts first suspected or reasonably should have suspected that Halcion caused their loss.   Because Upjohn failed to sustain its burden of producing sufficient evidence to establish that the Norgarts first suspected or should have suspected that Halcion caused their daughter to commit suicide more than one year before they filed suit, summary judgment in favor of Upjohn based on the statute of limitations is error.

FACTUAL AND PROCEDURAL BACKGROUND

On October 16, 1985, the Norgarts' daughter Kristi committed suicide by overdosing on prescription medication.   Shortly thereafter, the Norgarts, learning of her death and suspecting wrongdoing, immediately commenced an investigation to determine its cause.   In November 1985, her father learned from the police and coroner reports that her death was the result of a drug overdose.   He also learned from the police report that two empty prescription bottles of the drug Darvocet and two more of the sleeping pill Halcion were found near the bed where Kristi had committed suicide.   At the time he suspected two possible wrongful causes of her suicide, namely physical abuse by her husband and the failure of her psychiatrist to prescribe lithium for her depression.   Her father pursued his investigation of those possible causes and even consulted an attorney in 1986 about filing a wrongful-death action against the psychiatrist, a plan he did not follow then.   Pursuing his suspicion that her doctor had failed to prescribe lithium, in 1987 he wrote to Kristi's pharmacies and asked what medications she had been prescribed.   The pharmacies responded in late 1987 that they had no record of Kristi's being prescribed lithium, but they confirmed his knowledge that she had been prescribed Darvocet and Halcion.   Thus, from the record it is reasonable to infer that Kristi may have overdosed on Halcion.   Significantly, however, the moving party did not produce any evidence that the Norgarts either suspected or reasonably should have suspected that Halcion had played a role in causing their daughter to become depressed, which depression in turn led to her suicide.

The declaration submitted by Leo Norgart in opposition to Upjohn's motion states he did not actually suspect that Halcion had played a role in causing his daughter to commit suicide until he and his wife had read a news article on Halcion's side effects, on October 2, 1991.   Two weeks later they filed this action against Upjohn seeking damages for the wrongful death of their daughter.

On May 20, 1992, Upjohn filed its first motion for summary judgment contending that the Norgarts' claim against them was time-barred because the one-year statute of limitations contained in Code of Civil Procedure section 340, subdivision (3) was triggered no later than mid-1986, by which date the Norgarts knew of their injury and believed it had been caused by someone's wrongdoing.   In making this argument Upjohn relied primarily on the case of Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 245 Cal.Rptr. 658, 751 P.2d 923 (Jolly ) to support its request for summary judgment, citing the following language:  “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her․   A plaintiff need not be aware of the specific ‘facts' necessary to establish the claim;  that is a process contemplated by pretrial discovery.”  (At pp. 1110-1111, 245 Cal.Rptr. 658, 751 P.2d 923, italics added, fn. omitted.)   In denying Upjohn's motion, the trial court distinguished Jolly from the facts of this case on the basis that the plaintiff in Jolly knew the drug that had injured her but delayed filing suit because she was unaware of the manufacturer of that drug.   In its ruling the trial court further stated:  “Plaintiffs knew that their daughter was prescribed and probably took Halcion.   However, defendant fails to produce any evidence that plaintiffs had or could have gotten through sources available to them, information that could have linked Halcion to creating a depression which led to her death as alleged in the complaint.   At the very least, this creates a triable issue of fact.”

In 1996, after the decision had become final in Bristol-Myers, supra, 32 Cal.App.4th 959, 38 Cal.Rptr.2d 298, Upjohn renewed its previously denied motion for summary judgment pursuant to Code of Civil Procedure section 1008, subdivision (b).   Upjohn argued that under Bristol-Myers, once “a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute starts to run as to all potential defendants” (at p. 966, 38 Cal.Rptr.2d 298), regardless of whether those defendants or their products are suspected in any way.   Thus, Upjohn concluded that whether plaintiffs' suspicion herein was specific to Halcion or to Upjohn was irrelevant.

The trial court's tentative ruling was to deny Upjohn's motion.   Before hearing, however, the Nogarts stipulated to the entry of judgment against them, on the ground that under Bristol-Myers their action against Upjohn was barred by the one-year statute of limitations in Code of Civil Procedure section 340, subdivision (3).   By the stipulation the Norgarts essentially conceded that they suspected someone's wrongful conduct more than one year prior to the filing of the action, agreeing that under the holding of Bristol-Myers their action would be time-barred.   Pursuant to this stipulation the trial court granted Upjohn's motion for summary judgment.   From the judgment that was subsequently entered the Norgarts appeal.

On appeal, Upjohn continues to contend that Bristol-Myers disposes of the Norgarts' case.   The Norgarts concede that Bristol-Myers appears to apply to their case but argue it was wrongly decided and contend instead that only when they suspected or should reasonably have suspected that the particular wrongdoing for which they contend Upjohn is liable caused their injury, should the limitations period have started running.

DISCUSSION

 Summary judgment is proper only if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c).)  A defendant can move for summary judgment on the ground that the action has no merit, by showing that, for each cause of action, either (1) one or more elements of that cause of action cannot be established or (2) there is an affirmative defense to that cause of action.  (Code Civ. Proc., § 437c, subds. (a), (n), (o)(2).)  Unless the moving defendant meets its burden of establishing one of those two grounds, the defendant is not entitled to summary judgment, regardless of whether the plaintiff presents any opposition to the motion.  (Code Civ. Proc., § 437c, subd. (o)(2).)   If the defendant meets its burden, then the burden shifts to the plaintiff to show that a cause of action or defense thereto involves one or more material facts as to which there is a triable issue.  (Code Civ. Proc., § 437c, subd. (o)(2).)   We review de novo the trial court's granting of summary judgment.  (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 248, 39 Cal.Rptr.2d 292.)

We assess whether Upjohn met its burden of showing it was entitled to judgment as a matter of law.   The sole ground on which Upjohn moved for summary judgment was that the affirmative defense of the statute of limitations barred the action, and it was on that basis that its motion was granted.   The burden was Upjohn's to establish every element of its affirmative defense.   If it failed to do so, summary judgment should not have been granted.

The sole issue before this court is whether under the facts, the action accrued and thus the statute of limitations commenced to run when the Norgarts suspected or reasonably should have suspected that someone's wrongdoing caused their injury or when they suspected or reasonably should have suspected that Upjohn's product Halcion was a cause of their damages.

 The parties agree that the applicable statute of limitations is Code of Civil Procedure section 340, subdivision (3), which provides a one-year limitations period for the commencement of an action “for injury to or for the death of one caused by the wrongful act or neglect of another․” 3  The parties disagree about what triggers the running of the statute of limitations.   The statute of limitations on a cause of action begins to run at its accrual, which generally occurs on the date of injury.   (Jolly, supra, 44 Cal.3d at p. 1109, 245 Cal.Rptr. 658, 751 P.2d 923.)   The parties agree that the general rule is subject to the “discovery rule” exception, which provides that the accrual date is delayed until the plaintiff becomes aware of the injury “and its negligent cause.”  (Ibid.) Either actual or constructive awareness is sufficient to start the limitations period.   Moreover, the plaintiff need not be aware of all of the specific facts needed to establish the claim.   The action will accrue as soon as the plaintiff, knowing of injury, either actually suspects its wrongful cause or reasonably should suspect it through “notice or information of circumstances to put a reasonable person on inquiry.”  (At pp. 1110-1111, 245 Cal.Rptr. 658, 751 P.2d 923.)  “Once the plaintiff has [or reasonably should have] a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.   So long as a suspicion exists [or reasonably should exist], it is clear that the plaintiff must go find the facts;  she cannot wait for the facts to find her.”  (Jolly, supra, 44 Cal.3d at p. 1111, 245 Cal.Rptr. 658, 751 P.2d 923.)

 In answering the question posed, we must examine the reasons underlying the statute of limitations and the exception found in the discovery rule.   The purpose of the statute of limitations is to strike a balance between the competing policies of allowing claims to be decided on their merits and allowing defendants freedom from stale claims.   The exception to the statute provided by the discovery rule is designed to “protect the plaintiff who is ‘blamelessly ignorant’ of his cause of action.”  (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 408, 163 Cal.Rptr. 711 (Leaf ).)   In Jolly, our Supreme Court explained the rationale underlying the statute of limitations and its discovery rule exception:  “[T]he fundamental purpose of the statute is to give defendants reasonable repose, that is, to protect parties from defending stale claims.   A second policy underlying the statute is to require plaintiffs to diligently pursue their claims.   Because a plaintiff is under a duty to reasonably investigate and because a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period, suits are not likely to be unreasonably delayed, and those failing to act with reasonable dispatch will be barred.   At the same time, plaintiffs who file suit as soon as they have reason to believe that they are entitled to recourse will not be precluded.”  (Jolly, supra, 44 Cal.3d at p. 1112, 245 Cal.Rptr. 658, 751 P.2d 923, italics and fn. omitted.)

Given the balance of competing interests intended to be accomplished by the statute of limitations and the discovery rule, in cases where there are potentially multiple concurring causes, it would be contrary to their underlying rationale to start the limitations period running before a plaintiff has or reasonably should have any suspicion of the specific act of wrongdoing that caused the injury.  (See Leaf, supra, 104 Cal.App.3d at p. 408, 163 Cal.Rptr. 711.)

 Where multiple acts of wrongdoing concur to cause a plaintiff's injury and those acts are done separately by different parties, are unrelated to one another, and are based on entirely different sets of facts, a plaintiff's suspicion as to one such act of wrongdoing does not necessarily lead the plaintiff to suspect another such act of wrongdoing.   In such a case, the plaintiff's suspicions about a given act of wrongdoing are no more aroused whether there are multiple concurrent acts of wrongdoing or no other acts of wrongdoing.   Until the plaintiff suspects or reasonably should suspect that the particular act of wrongdoing may have caused the injury, the plaintiff is unaware of potentially having any right of action based on that wrongdoing and cannot be expected to go find the underlying facts, let alone decide whether to file suit.   Likewise, starting the limitations period before a plaintiff has or reasonably should have any suspicion of a particular act of wrongdoing gives an arbitrary and undeserved windfall to the defendant who has wrongfully caused an injury if that defendant is let off the hook simply because other tortfeasors independently contributed in totally unrelated ways to causing the injury and merely happened to be discovered by the plaintiff sooner.

Moreover, an act of wrongdoing may especially fail to arouse the plaintiff's suspicions where the wrongdoing involves medication, and particularly the unintended, unknown side effects of medication.  “In our contemporary complex industrialized society, advances in science and technology create ․ goods [that] may harm consumers” without their awareness that anything has harmed them or, if they are aware of their injuries, of what has harmed them.  (See Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 610, 163 Cal.Rptr. 132, 607 P.2d 924.)   It is much more difficult for the average person to discover that an injury was caused by a drug's unseen and unintended chemical workings than it is to discover that an injury was caused, for example, by a horse's kick.   With a horse's kick, the cause of the injury is immediately obvious;  with a drug's unknown side effects, in contrast, the cause of the injury is hidden.   Moreover, the way in which a drug's side effects can cause injury to the human body is a process beyond the knowledge or understanding of the average person and one about which a jury would require the assistance of an expert in the subject to explain.  “[R]ules developed against the relatively unsophisticated backdrops of barroom brawls, intersection collisions and slips and falls lose some of their relevance in these days of miracle drugs with their wondrous, unintended, unanticipated and frequently long-delayed side effects.”  (Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316, 324, 164 Cal.Rptr. 591.)   In addition, the average person relies on government agencies such as the Food and Drug Administration to ensure the safety of drugs intended for human consumption, a reliance likely to deter a plaintiff from developing any suspicion that an injury was caused by a prescribed drug.   Thus, where a drug's side effects wrongfully cause injury, the plaintiff's first suspicion as to that cause of injury is much more likely to be delayed, if it ever occurs at all.

In sum, fairness to both sides and the policy underlying the rules are best preserved if, where separate, unrelated acts of wrongdoing by different parties concur to cause a plaintiff's injury, the statute of limitations does not begin to run with respect to claims based on a particular act of wrongdoing until the plaintiff has or reasonably should have a suspicion of that wrongdoing.

We distinguish lack of suspicion of a particular wrongful cause of injury from lack of awareness of the name of a particular perpetrator of the suspected cause of injury.   The latter does not delay the start of the limitations period.   That was the case in Jolly, where there was only one wrongful cause of the plaintiff's injury, and the plaintiff suspected what it was, namely the drug diethylstilbestrol (DES).   The plaintiff in Jolly waited to sue because she did not know which of the drug's many manufacturers had made the DES that injured her.   Our Supreme Court held that the applicable statute of limitations barred any claim she might have against any of the manufacturers of DES, because she had known of her injury and its negligent cause for years, even if she did not know the name of its particular manufacturer.  (Jolly, supra, 44 Cal.3d at p. 1113, 245 Cal.Rptr. 658, 751 P.2d 923.)

 In such a case, where the injury and its wrongful cause are known, but the specific name of the responsible defendant is unknown, the plaintiff can avoid or at least delay the bar of the statute of limitations by filing within the limitations period a complaint naming fictitious “Doe” defendants.  (Code Civ. Proc., § 474;  Jolly, supra, 44 Cal.3d at p. 1118, 245 Cal.Rptr. 658, 751 P.2d 923.)   The complaint can later be amended to add the newly identified defendant, substituting its name for one of the Does, and the defendant will be considered to have been a party to the action from its commencement, even if the statute of limitations would otherwise have run against that defendant.  (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 599, 15 Cal.Rptr. 817, 364 P.2d 681.)   The complaint can even be amended to add a different cause of action against the new defendant.   But the cause of action added by the amendment will relate back to the commencement of the action for purposes of the statute of limitations only if it is based on the same general set of facts as those alleged in the original complaint.  (Id. at pp. 600-602, 15 Cal.Rptr. 817, 364 P.2d 681.)   Thus, filing a complaint naming Does is effective to delay the limitations bar in cases such as Jolly, where the injury and its only wrongful cause are known but the specific name of the responsible defendant is unknown.   Filing a complaint naming Does is also effective when the injury and one or more concurrent acts of wrongdoing are known, and any unknown concurrent act of wrongdoing is based on the same general set of facts as at least one of the known acts of wrongdoing.  (See, e.g., Gray v. Reeves (1977) 76 Cal.App.3d 567, 142 Cal.Rptr. 716 [plaintiff knew of doctor's wrongdoing in prescribing drug that destroyed plaintiff's hip socket;  plaintiff later suspected wrongdoing by drug manufacturer for making the drug].)  In those cases, the later amendment to the Doe complaint is based on the same general set of facts and will therefore relate back to the time of filing the original complaint.

In a case, however, where wholly unrelated acts of wrongdoing by different parties concur to cause a plaintiff's injury, the facts underlying one party's wrongdoing are different from those underlying another party's wrongdoing.   The later amendment of a Doe complaint, originally filed when one concurrent wrongful cause of a plaintiff's injury was suspected, to add a claim for recovery against a defendant allegedly liable for a newly discovered unrelated wrongful cause of the injury will not be based on the same general set of facts as the original complaint and will not, therefore, relate back to the filing of the original complaint.   Thus in this case, had the Norgarts filed a timely wrongful-death complaint against Kristi's husband (and Does) alleging that his physical abuse had caused her to commit suicide, or against her psychiatrist (and Does) alleging that his failure to prescribe lithium for Kristi's depression had caused her to commit suicide, the later amendment of such a complaint to substitute Upjohn for one of the Does and to add the claim that Upjohn's manufactured drug Halcion had caused Kristi to commit suicide would be based on a different set of facts and would not relate back to the filing of the original complaint for purposes of the statute of limitations.

The filing of a timely Doe complaint when a plaintiff knows of his injury and first suspects only one of its wrongful causes would not provide any help in avoiding the limitations bar in a case such as this one, where unrelated acts of wrongdoing by different parties concur to cause the injury and the wrongdoing of the party in question is not suspected (and would not reasonably be expected to be) until after the statute of limitations would have run.   Not only would filing a Doe complaint not help avoid a limitations bar in such a case, filing one in such a case should not be required in order to avoid the limitations bar.  (See Leaf, supra, 104 Cal.App.3d at pp. 408-409, 163 Cal.Rptr. 711 [“It would be contrary to public policy to require that plaintiffs file a lawsuit against [a defendant] at a time when the evidence available to them failed to indicate a cause of action against this defendant.”].) 4

Given the foregoing considerations, we disagree with the holding in Bristol-Myers, on which Upjohn relied in support of its renewed motion for summary judgment.   The Bristol-Myers court held, in a case involving multiple concurring causes, that when a plaintiff has cause to sue based on knowledge or “suspicion of negligence on the part of someone ․ ¶ ․ ¶ ․ the statute starts to run as to all potential defendants. ¶ ․ ¶ ․   It commence[s] not only as to known defendants but also as to unknown defendants․”  (Bristol-Myers, supra, 32 Cal.App.4th at pp. 965-967, 38 Cal.Rptr.2d 298.)   The Bristol-Myers court based its holding on dictum from Jolly, which it applied in a materially different context.   The Jolly court's statement that the statute of limitations “begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her” was made in the context of only one wrongful cause, only one instance of “someone doing something wrong.”   The statement is dictum with regard to any case involving multiple concurrent injurious acts of wrongdoing.   Yet the Bristol-Myers court applied that dictum in just such a case, interpreting Jolly to mean that suspicion of any wrongdoing on the part of anyone starts the statute of limitations running, even as to a wrongdoing unrelated to the particular defendant in question.   That is an unjustified interpretation of Jolly, and one with which we disagree.

 We hold that in a case where separate, unrelated acts of wrongdoing by different parties concur to cause a plaintiff's injury, a cause of action against a party for a particular act of wrongdoing accrues, and the limitations period begins to run when the plaintiff knows of the injury and suspects or reasonably should suspect that the particular wrongdoing for which the party is allegedly liable caused the injury.   In this case, the statute of limitations on the Norgarts' claim against Upjohn did not begin to run until they suspected or reasonably should have suspected that Halcion caused their daughter to commit suicide.   Their earlier suspicions that spousal abuse and the failure to prescribe lithium had wrongfully caused their daughter's suicide did not start the limitations period running on their claim against Upjohn.

To obtain summary judgment on the basis of the statute of limitations, then, Upjohn had to place before the court evidence that the Norgarts filed their complaint after the applicable statute of limitations had run.   Thus, it was Upjohn's burden to show that the complaint was filed more than one year from the date the Norgarts knew of their injury and first suspected or reasonably should have suspected that Halcion had caused their daughter's suicide.   This they did not attempt to do.   Relying on Bristol-Myers they simply placed before the court facts upon which the trial court could conclude that the Norgarts knew or should have known that someone's negligence caused their injury.   And it was on this basis that the parties stipulated to the trial court's grant of summary judgment.5  Furthermore, even if we were to conclude there was evidence on the record that the Norgarts should have known of the negligent cause attributed to Upjohn, there existed a factual issue in that regard sufficient to defeat the motion for summary judgment.  (Leaf, supra, 104 Cal.App.3d 398, 163 Cal.Rptr. 711 [whether plaintiffs, in fact, exercised reasonable diligence in discovering the negligence is a question of fact].)

DISPOSITION

The summary judgment in favor of Upjohn is reversed and the matter remanded for further proceedings.   Appellants are awarded their costs on appeal.

FOOTNOTES

1.   They also assert their daughter's claim to recover certain minimal economic damages.

2.   The operative complaint is based upon theories of negligence, strict liability, fraud and conspiracy to commit fraud.

3.   The Norgarts have at times claimed that a different statute of limitations applies to their fraud-based claims.   Pursuant to stipulation, however, the parties agreed that Code of Civil Procedure section 340, subdivision (3), disposed of the entire action, and summary judgment was granted on the basis of that statute alone.   Even if a different statute were to apply, it would not change our analysis or assessment of what the proper trigger is to start the statute running.

4.   Whether or not a plaintiff in a concurrent-cause case such as this one files an initial complaint should make no difference to the accrual of the plaintiff's cause of action against a later-discovered perpetrator of a separate, unrelated concurrent act of wrongdoing.   Thus, for example, in Leaf, the plaintiffs' house suffered subsidence damage.   When they were informed it was due to defective design and construction of the lot pad beneath their house, they filed suit against the original site developers (and against the property sellers for failing to disclose the wrongdoing).  (Leaf,supra, 104 Cal.App.3d at p. 403, 163 Cal.Rptr. 711.)   Only later, when the plaintiffs used the settlement proceeds from that lawsuit to build a remedial drainage system, did they discover that the City of San Mateo's nearby storm and sewer trenches were improperly channeling water onto their property.  (At pp. 403-404, 163 Cal.Rptr. 711.)   Their cause of action against the City of San Mateo did not accrue until they discovered or should have discovered its wrongdoing as a cause of their damage.  (At p. 408, 163 Cal.Rptr. 711.)   The lawsuit they later filed against the City of San Mateo was not barred by either their earlier discovery of other acts of wrongdoing that had concurrently caused their damage or their having already filed and concluded a lawsuit against the other wrongdoers.

5.   At oral argument on appeal counsel for Upjohn asserted that the evidence before the court on summary judgment disclosed the contents of the package insert which fully described the adverse side effects of Halcion, including depression.   They argued that, regardless of the correctness of Bristol-Myers, as a matter of law the Norgarts should have known that depression was a possible side effect of ingestion of Halcion and thus summary judgment was proper.   The literature to which counsel made reference, however, was only before the court on Upjohn's motion to reconsider the denial of its first motion for summary judgment and was not before the court on the motion that was granted.   For this reason and because Upjohn put all of their eggs in the Bristol-Myers basket, we do not decide whether as a matter of law the Norgarts knew or should have known of Upjohn's alleged wrongful conduct.

WALKER, Associate Justice.

PHELAN, P.J., and CORRIGAN, J., concur.