Brumley vs. FDCC Asbestos Case Discussion: The Barrington Discussion on Darvon and A.H. Robins Co.

Read the discussion of the Barrington case and the plaintiff’s use of Darvon. This case is discussed in the appellate decision in Brumley, et. al vs. FDCC California, Inc. In this decedent asbestos cancer case, the plaintiffs appeal the lower court’s decision on the wrongful death claim filed on behalf of the widow and children and the widow’s loss of consortium.

In Barrington, the plaintiff initially filed an action alleging medical malpractice and negligence in connection with her use of Darvon, a prescription medicine. Several months later, she amended the complaint to substitute defendant A. H. Robins Company (Robins) for a fictitious defendant, alleging that the same injuries she had attributed to Darvon were caused by her use of the Dalkon Shield, an intrauterine contraceptive device. Plaintiff then failed to serve Robins within three years from the date of the filing of her original complaint. In a motion granted prior to the expiration of three years from the date the complaint was amended to substitute Robins, the trial court dismissed her action, reasoning that the failure to serve within three years violated former section 581a. (Barrington, supra, 39 Cal.3d at p. 149.) Section 581a, subdivision (a) then required, as does section 583.210 today, that “[n]o action . . . shall be further prosecuted . . . and . . . shall be dismissed by the court . . . unless the summons on the complaint is served and return made within three years after the commencement of said action . . . .”2 In the face of the statutory language requiring dismissal, the plaintiff argued that the court should apply the “ ‘relation back’ ” doctrine, a doctrine ordinarily applied in connection with statutes of limitation. (Barrington, at p. 150.) That doctrine holds that if a new cause of action added by amendment “relates back” to the claims of the initial complaint, the new cause of action will be deemed, for purposes of the statute of limitations, to have been filed on the date of filing of the initial complaint. The plaintiff in Barrington argued that, conversely, because the cause of action against Robins did not relate back to her original claims, that cause of action should be deemed, for purposes of former section 581a, to have been commenced at the time she filed the amended complaint. (Barrington, at p. 150.) Accordingly, that cause of action would not be subject to dismissal under section 581a.

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