Anthony v. Abbott Laboratories

• Decision Date: 03 April 1985
• Docket Number: No. 84-87-A,84-87-A
• Citation: 490 A.2d 43
• Parties: , Prod.Liab.Rep. (CCH) P 10,783 Norma ANTHONY et al. v. ABBOTT LABORATORIES et al. ppeal.
• Court: Rhode Island Supreme Court

Page 43

490 A.2d 43

53 USLW 2530, Prod.Liab.Rep. (CCH) P 10,783

Norma ANTHONY et al. v. ABBOTT LABORATORIES et al.

No. 84-87-Appeal.

Supreme Court of Rhode Island.

April 3, 1985.

John S. Foley, Mark Decof, Leonard Decof, Decof & Grim, Providence, for plaintiffs.

Dennis J. McCarten, Hanson, Curran & Parks, Edward L. Gnys, Jr., Gunning, LaFazia & Gnys, Inc., John F. Dolan, Rice,

Dolan & Kershaw, Richard M. Borod, Edwards & Angell, William A. Curran, Hanson, Curran & Parks, Thomas D. Gidley, Hinckley & Allen, James J. McKenna, Bruce G. Tucker, Roberts, Carroll, Feldstein & Tucker, Providence, for defendants

OPINION

BEVILACQUA, Chief Justice.

The United States District Court for the District of Rhode Island has certified the following question of law concerning the statute of limitations applicable to personal-injury claims as contained in G.L.1956 (1969 Reenactment) § 9-1-14, as amended by P.L.1976, ch. 188, § 1: ¹

"Did the limitations period for the purposes of the discovery rule adopted by Your Honors in Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968), and recently amplified in Lee v. Morin, [RI, 469 A.2d 358 (1983) ] begin to run when the plaintiffs in this action knew or should have known of their injuries and a possible casual relationship between those injuries and ingestion of or exposure to diethylstilbestrol (DES) in utero, or did the limitations period begin to run only when the plaintiffs also knew or should have known of the alleged wrongful conduct of the manufacturers of the drug?"

This case is a personal-injury action for compensatory and punitive damages against several manufacturers of the drug diethylstilbestrol (DES) based upon negligence, breach of warranty, res ipsa loquitur and strict product liability. The plaintiffs filed suit in the United States District Court for the District of Rhode Island on November 5, 1980.

The parties are not contesting the facts, and they are relevant only to the question that is submitted to this court.

The plaintiffs in this action allege that they have suffered physical injury as the result of ingestion of or exposure in utero to DES. DES is a synthetic hormone that was marketed by drug companies and widely prescribed by physicians for a number of purposes, one of which was to prevent miscarriages.

The plaintiffs include eleven daughters who allege that they have suffered physical injury as the result of exposure to DES in utero and one mother who alleges that she has suffered physical injury as the result of ingestion of DES. With respect to each of these plaintiffs: (1) more than three years elapsed between the allegedly injurious exposure to the product and the institution of this civil action and (2) more than three years elapsed between plaintiff's eighteenth birthday and the institution of the lawsuit. Each of these plaintiffs became aware more than three years prior to filing suit that she had physical injuries and that those injuries were possibly caused by exposure to DES. Eleven of the twelve plaintiffs in question have filed affidavits in which they state that they had no knowledge of any actionable conduct on the part of defendants at any time more than three years prior to suit.

On January 31, 1984, defendants (excluding defendant Burroughs & Wellcome, Inc.) jointly filed a motion for summary judgment based upon the statute of limitations § 9-1-14. However, the trial justice determined that the issue required an interpretation of Rhode Island law and thereupon certified the question to this Court.

The issue raised by this case is whether the statute of limitations begins to run in a drug product-liability action when the plaintiff discovers the personal injuries and its cause or when plaintiff discovers or should have discovered knowledge of defendant manufacturer's wrongful conduct.

The defendants contend that the cause of action "accrues" when the injured person knew of her injury and the cause of the injury. They argue that when the plaintiff discovers that the product caused her injuries, the statute of limitations would begin to run.

In turn, plaintiffs argue that before the statute begins to run, there must be some knowledge by the plaintiff of wrongful conduct on the part of the drug manufacturer.

This court has, in certain cases and circumstances in the past, rejected the general rule that a cause of action accrues at the time of the injury. See Lee v. Morin, R.I., 469 A.2d 358 (1983); Romano v. Westinghouse Electric Co., 114 R.I. 451, 336 A.2d 555 (1975); Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968).

In Wilkinson, we held that in medical-malpractice suits the statute of limitations does not commence to run until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered that she has sustained an injury as a result of the physician's negligent treatment. In adopting the so-called discovery rule, the court concluded that "we prefer to follow the discovery rule in medical malpractice cases because in our opinion the theory behind it is eminently fair and perfectly consistent with the function and nature of limitation acts." Wilkinson, 104 R.I. at 239, 243 A.2d at 753.

This court noted that the statute's purpose of "prevent[ing] the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard for want of seasonable prosecution," Id. at 236, 243 A.2d at 752, would not be defeated by allowing the plaintiff in a medical-malpractice action to bring suit after she has an opportunity to discover the nature of her injuries, rationalizing that it would be "manifestly unjust to bar the enforcement of injury claims brought by a plaintiff who was not, nor could not have known that he was, the victim of tortious conduct because the consequent harm was unknowable within two years of the negligent act." Id. at 237, 243 A.2d at 752.

More recently, we applied this principle in Lee v. Morin, R.I., 469 A.2d 358 (1983), with respect to improvements to real property, holding that the statute of limitations begins to run "when the evidence of injury to property, resulting from the negligent act upon which the action is based, is sufficiently significant to alert the injured party to the possibility of a defect." Id., 469 A.2d at 360.

The reasoning behind Wilkinson and Lee is that a person should have reasonable opportunity to become cognizant of an injury and its cause before the statute of limitations begins to run. Id., 469 A.2d at 361. See Kennedy v. Cumberland Engineering Company Inc., R.I., 471 A.2d 195 (1984).

We believe that this same explanation applies to a drug product-liability action in situations in which the adverse effects of the ingestion of a drug take several years and possibly a generation to manifest themselves. Moreover, we recognize the similarity in circumstances between a medical-malpractice case and a drug product-liability action. In Raymond v. Eli Lilly & Co., 412 F.Supp. 1392 (D.N.H.1976), aff'd, 556 F.2d 628 (1st Cir.1977), the court, in comparing drug product cases with malpractice cases, clearly stated:

"Plaintiff's situation is not unlike that of the malpractice victim, and a drug can be likened to a hidden instrument left in the body of an unsuspecting patient. Both suffer the onset of physical harm a considerable period of time prior to the discovery of the alleged cause of that harm, and both the malpractice victim and the victim of drug side-effects may be unaware for some time they are suffering an invasion of a protected interest." 412 F.Supp. at 1401.

The same considerations that support the adoption of the discovery rule in medical-malpractice cases apply a fortiori to the drug product-liability field. See McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, (Cir.1980) (applying Ohio law); Louisville Trust Company v. Johns Mansville Products Corp., 580 S.W.2d 497 (Ky.1979); Raymond v. Eli Lilly and Company, 117 N.H. 164, 371 A.2d 170 (1977); Ohler v. Tacoma General Hospital, 92 Wash.2d 507, 598 P.2d 1358 (1979). It is our judgment that the suppression of the running of the statute of limitations in such cases will not frustrate achievement of the statute's purpose of "prevent[ing] the unexpected enforcement of stale claims * * *." Wilkinson v. Harrington, 104 R.I. at 226, 243 A.2d at 752.

The "rule" in Wilkinson provides that in medical-malpractice suits "the statute of limitation does not commence until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered, that he has sustained an injury as a result of the physician's negligent treatment". Id. at 234, 243 A.2d at 751. The facts in Wilkinson indicate that the victim discovered both the cause of her injury and the fact that it was the result of tortious conduct simultaneously.

In the present case, however, the injury, its cause, and plaintiffs' knowledge of the manufacturer's wrongful conduct occurred at three substantially different times. In such a circumstance, some jurisdictions have held that the cause of action does not accrue until plaintiffs learn or reasonably should have learned of the injury and of a possible causal connection between the injury and the product. Fidler v. Eastman Kodak Co., 714 F.2d 192 (1st Cir.1983); see Timberlake v. A.H. Robins Co., 727 F.2d 1363 (5th Cir.1984); Grabowski v. Turner & Newall, 516 F.Supp. 114 (E.D.Pa.1980) aff'd sub nom. DaMato v. Turner & Newall Ltd., 651 F.2d 908 (3rd Cir.1981); and Pauley v. Combustion Engineering Inc., 528 F.Supp. 759 (S.D.W.Va.1981).

However, in what we see as an emerging trend, several courts have concluded that the plaintiff should have knowledge of some wrongdoing by the drug manufacturer before the statute begins to run under a discovery rule. Goodman v. Mead Johnson & Co., 534 F.2d 566 (3rd Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir.1970...