Michael Fetick, executor of the Estate of Paul G. Fetick, M.D., Appellant/Cross-Respondent, v. American Cyanamid Company and Hesselberg Drug Company, Respondents/Cross-Appellants.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Michael Fetick, executor of the Estate of Paul G. Fetick, M.D., Appellant/Cross-Respondent, v. American Cyanamid Company and Hesselberg Drug Company, Respondents/Cross-Appellants. Case Number: ED75310 Handdown Date: 11/23/1999 Appeal From: Circuit Court of the City of St. Louis, Hon. David C. Mason and Hon. Robert H. Dierker, Jr. Counsel for Appellant: P. Terence Crebs, Mark R. Dunn, Stanley P. Kops and Marc S. Moller Counsel for Respondent: Dale R. Joerling, David P. Donovan and Roger W. Yoerges Opinion Summary: Dr. Paul Fetick appeals the trial court's grant of summary judgment in favor of defendants American Cyanamid Company and Hesselberg Drug Company in his action against defendants for fraud and contribution. AFFIRMED. Division Five holds: (1) Dr. Fetick's fraud claim is barred by the statute of limitations. (2) Dr. Fetick is not entitled to contribution from the other defendants. Citation: Opinion Author: Charles B. Blackmar, Sr.J. Opinion Vote: AFFIRMED. Rhodes Russell, C.J., and Crahan, J., concur. Opinion: This case arose out of an incident which took place in November of 1978. Dr. Paul Fetick administered oral poliomyelitis vaccine to an infant patient, Daniel Callahan, using a vaccine produced by a division of American Cyanamid Company ("American Cyanamid"). As a result of the inoculation Daniel contracted an active case of poliomyelitis, rendering him a triplegic. He also developed an unrelated perirectal abscess, which was alleged to have been improperly diagnosed and treated. Daniel brought suit against Dr. Fetick, American Cyanamid, and Hesselberg Drug Company

("Hesselberg"), the distributor of the product. Other phases of this litigation have made their way into the courts,(FN1) but need not be described in detail. In the present case, Dr. Fetick seeks to maintain an action against American Cyanamid and Hesselberg to recover (1) for fraud in misrepresenting the quality of the vaccine he used and for willfully false statements as to government approval, and (2) for contribution to cover the $290,000 he paid in order to settle Daniel's case against him. The trial court entered summary judgment for both defendants on both counts. Dr. Fetick appealed. It appears he has died since the institution of this suit, and that the action has been revived in the name of his executor, but we shall continue to refer to the plaintiff-appellant as Dr. Fetick. The briefs of the several parties approach two hundred pages, but we find there is a single overriding point for each count which mandates affirmance. Count I -- Fraud The record demonstrates that the facts giving rise to Dr. Fetick's claim had their origin -- that is, Dr. Fetick's purchase of the vaccine, Daniel's inoculation, and his subsequent severe illness -- took place no later than November of

1. Dr. Fetick first made his claim for the damages sued for on October 4, 1994, more than 15 years later.

Section 516.120 RSMo 1994(FN2) reads as follows: Within five years: (1) All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110, and except upon judgments or decrees of a court of record, and except where a different time is herein limited; (2) An action upon a liability created by a statute other than a penalty or forfeiture; (3) An action for trespass upon real estate; (4) An action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated; (5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud. Dr. Fetick's claim, therefore, was not filed until the statute of limitations had run on his fraud claim. He argues that the Missouri statute allows an exception when the defendants are shown to have taken steps to conceal their fraud. This position has not been upheld by the courts. Kansas City v. W.R. Grace & Co., 778 S.W.2d 264, 273 (Mo. App. 1989); Gilmore v. Chicago Title Ins. Co., 926 S.W.2d 695, 698-99 (Mo. App. 1996). Section 516.120 speaks in absolute terms. There are no exceptions within its four corners. It would appear that the legislature made a policy choice by drawing an absolute bar for fraud cases at 15 years, even though the fraud may have been deliberately concealed and remained undiscovered. There is no support for the claim that the limitation could be indefinitely extended by a showing of fraudulent concealment. Fraud, indeed, is seldom practiced in the open. A

judicially established exception for fraudulent concealment would seriously erode the ostensibly absolute 15-year maximum for bringing suit. The parties have discussed other issues pertaining to the fraud claim at length, but, inasmuch as the bar of the statute of limitations would remain, there is no need for further discussion. Count II -- Contribution Dr. Fetick asked his insurer to settle Daniel's claim against him for a figure within the policy limits of $300,000. The insurer obliged. The agreed settlement was paid and Daniel's claim against the doctor was dismissed. The settlement did not seek discharge of claims against any other defendants although, of course, the amount of the settlement would be deducted from any judgment finally recovered by Daniel. This is because a plaintiff is not entitled to multiple recovery for the same injury. There is no showing that the other defendants received any notice of the proposed settlement. So far as the record shows, the settlement was purely voluntary. By reason of the settlement, Daniel's claim was extinguished and Dr. Fetick was relieved of any obligation to contribute to any further recovery by Daniel. Lowe v. Norfolk and Western Ry. Co., 753 S.W.2d 891, 894-95 (Mo. banc 1988). For such significance as it may have, about which we express no opinion, Dr. Fetick was charged with malpractice in the diagnosis and treatment of Daniel, and not solely on account of his having administered the vaccine. Under our case law, a settling defendant has no right of contribution from other defendants who remain in the case unless the settling defendant has discharged the liability of the one from whom contribution is sought. Cardinal Glennon Hosp. v. American Cyanamid Co., 997 S.W.2d 42, 44-5 (Mo. App. 1999) (involving another phase of this litigation). Good judicial method dictates that we follow this recent precedent from our own court. The affirmance of the judgment for the defendants on both counts makes any discussion of the cross-appeals unnecessary. The defendants have received full relief. The judgment is affirmed in its entirety.(FN3) Footnotes: FN1.Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993); Callahan v. Cardinal Glennon Children's Hosp., 901 S.W.2d 270 (Mo. App. 1995); Cardinal Glennon Hosp. v. American Cyanamid Co., 997 S.W.2d 42 (Mo. App. 1999). FN2.All further statutory references are to RSMo 1994 unless otherwise indicated. FN3.Dr. Fetick's Motion to Dismiss is denied.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.