Albers v. Eli Lilly & Co., 03-2320.
| Decision Date | 06 January 2004 |
| Docket Number | No. 03-2320.,03-2320. |
| Parties | Katherine M. ALBERS, Plaintiff-Appellant, v. ELI LILLY & CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Michael W. Rathsack (argued), Chicago, IL, for Plaintiff-Appellant.
David W. Brooks (argued), Shook, Hardy & Bacon, Kansas City, MO, John Dames, Kelley, Drye & Warren, Chicago, IL, for Defendant-Appellee.
Before EASTERBROOK, MANION, and KANNE, Circuit Judges.
More than a decade after she was diagnosed with a malformed uterus that the physician attributed to her mother's ingestion of DES, Katherine Albers filed this tort action seeking damages from the drug's maker, Eli Lilly & Company. Lilly invoked the statute of limitations, which (the parties agree) is supplied by the local law of the District of Columbia because the suit was filed there and then transferred to Illinois under 28 U.S.C. § 1404(a). The District of Columbia's rule has been authoritatively stated:
In every case, the plaintiff has a duty to investigate matters affecting her affairs with reasonable diligence under all of the circumstances. Once the plaintiff actually knows, or with the exercise of reasonable diligence would have known, of some injury, its cause-in-fact, and some evidence of wrongdoing, then she is bound to file her cause of action within the applicable limitations period, measured from the date of her acquisition of the actual or imputed knowledge.
Diamond v. Davis, 680 A.2d 364, 381 (D.C.App.1996). See also Bussineau v. Georgetown College, 518 A.2d 423 (D.C.App.1986). Albers concedes that she knew both her injury and its cause well outside the period of limitations (three years, see D.C.Code § 12-301(8)) but denies that she had "some evidence of wrongdoing" until 1999 or 2000 when she saw in a newspaper an attorney's advertisement about DES. The district court granted summary judgment to Lilly, holding that, even if Albers lacked actual awareness until then, reasonable diligence would have led a person to commence investigation in 1991 — the year her doctor diagnosed her as having a "classic T-shaped, DES exposed uterus" — and that even a modest investigation would have turned up "some evidence" that administration of DES to pregnant women could cause defects in their daughters' reproductive systems. 257 F.Supp.2d 1147 (N.D.Ill. 2003). That made the suit untimely.
On appeal, as in the district court, Albers's principal submission is that until 1999 or 2000 she was ignorant of any potential wrongdoing. We may assume that this is so, but D.C. law establishes an objective rather than a subjective standard. We do not think that any reasonable jury could disagree with the proposition that a person who knows that she has a serious medical condition (here, one that has apparently rendered her infertile) and also knows the condition's cause, would investigate to learn whether wrongful conduct played a role. Albers could have asked her doctor, though apparently she did not. In 1991, information about DES was readily available in the law reports (litigation about DES has been ongoing, and producing substantial awards, ever since the 1960s) and the press (books as well as newspaper stories). More recently, though still more than three years before suit was filed, medical sites on the Internet have automated such searches. Albers does not dispute the district court's conclusion that even a rudimentary search would have turned up evidence of wrongdoing. Her only contention is that she did not need to search. That line of argument, if adopted, would effectively abolish the D.C. objective rule allowing the imputation of evidence that would have been gathered from a reasonable search and would convert the standard to an entirely subjective one. Like the district judge, we hold that there is no material dispute requiring a jury's resolution. On the undisputed facts, a reasonable person would have commenced an inquiry in 1991 and swiftly would have found some evidence of wrongdoing....
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