Bowen v. Eli Lilly & Co., Inc.

• Decision Date: 06 August 1990
• Citation: 408 Mass. 204,557 N.E.2d 739
• Parties: , Prod.Liab.Rep. (CCH) P 12,583 Alice BOWEN v. ELI LILLY & CO., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 739

557 N.E.2d 739

408 Mass. 204, Prod.Liab.Rep. (CCH) P 12,583

Alice BOWEN v. ELI LILLY & CO., INC.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued April 2, 1990.

Decided Aug. 6, 1990.

John F. Keenan, Quincy, for plaintiff.

Loretta M. Smith (Marshall Simonds, Boston, with her), for defendant.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

The defendant argues that the plaintiff's negligence claim is barred because she commenced this action more than three years after her cause of action accrued. G.L. c. 260, § 2A (1988 ed.). A judge in the Superior Court agreed and allowed the defendant's motion for summary judgment. We transferred the plaintiff's appeal here on our own motion and now affirm the judgment. ¹

We summarize the undisputed record facts. During her pregnancy with the plaintiff, the plaintiff's mother took the prescription drug diethylstilbestrol (DES) to prevent a threatened miscarriage. The plaintiff was born on April 14, 1948. In 1969 the plaintiff underwent an operation for a malignant vaginal tumor, during which a colostomy was performed as well as a radical hysterectomy. The complaint in this action was filed approximately fourteen years later on March 23, 1983. The question is whether, on the summary judgment record, there is a dispute of material fact as to whether the three-year statute of limitations had run before this action was commenced. ²

This court has recognized the unfairness of a rule that holds that the statute of limitations has run even before a plaintiff knew or reasonably should have known that she may have been harmed by the conduct of another. We, therefore, have developed (in the absence of a governing statute) a discovery rule for the purpose of determining when a cause of action accrues, and thus when the statute of limitations starts to run. This rule prescribes as crucial the date when a plaintiff discovers, or any earlier date when she should reasonably have discovered, that she has been harmed or may have been harmed by the defendant's conduct.

We first adopted the discovery rule in Hendrickson v. Sears, 365 Mass. 83, 83-84, 310 N.E.2d 131 (1974). There we held that, if an attorney's negligent title search overlooked an easement of record and the title defect was, in the circumstances, inherently unknowable by his clients, their cause of action against him did not accrue until they discovered or should reasonably have discovered the attorney's misrepresentation concerning the record title. Id. at 90-91, 310 N.E.2d 131. We declined to apply the rule, then applicable to medical malpractice claims, that the statutory period began to run when the negligent act occurred, even if the plaintiff could not reasonably ascertain the harm until later. Id. at 86, 310 N.E.2d 131, citing Capucci v. Barone, 266 Mass. 578, 581, 165 N.E. 653 (1929). Two years after the Hendrickson case, we applied the discovery rule to claims of fraudulent misrepresentations in the sale of real estate. Friedman v. Jablonski, 371 Mass. 482, 485, 358 N.E.2d 994 (1976). We recognized that, when the plaintiffs claimed a misrepresentation concerning the existence of a right of way over other property, the plaintiffs had certain obligations of reasonable inquiry and that the decision whether any misrepresentation should reasonably have been uncovered had to be made in light of what reasonable inquiry would have disclosed. Id. at 485-486, 358 N.E.2d 994. We concluded that by the time the plaintiffs took title to the property, reasonable inquiry would have shown that there was no right of way, and thus the statute of limitations began to run at that time. Id.

We extended the discovery rule to medical malpractice actions, thus overruling Capucci v. Barone, supra, in Franklin v. Albert, 381 Mass. 611, 618-619, 411 N.E.2d 458 (1980). We said that medical malpractice "causes of action accrue when the plaintiff learns, or reasonably should have learned, that he has been harmed by the defendant's conduct." Id. at 619, 411 N.E.2d 458. The principle thus stated does not require that the plaintiff know or have reason to know that the defendant violated a legal duty to the plaintiff, but only that she knew or had reason to know that she had been harmed by the defendant's conduct. See White v. Peabody Constr. Co., 386 Mass. 121, 130, 434 N.E.2d 1015 (1982) ("The 'notice' required is not notice of every fact which must eventually be proved in support of the claim"); Fidler v. Eastman Kodak Co., 714 F.2d 192, 198-199 (1st Cir.1983) (Massachusetts law). The plaintiff need not know the full extent of the injury before the statute starts to run. Olsen v. Bell Tel. Laboratories, Inc., 388 Mass. 171, 175, 445 N.E.2d 609 (1983). The important point is that the statute of limitations starts to run when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury. See Franklin v. Albert, supra at 618, 411 N.E.2d 458.

This case presents an aspect of the discovery rule with which this court has not previously been confronted. Our prior cases have focused on the question whether, in given circumstances, the plaintiffs should reasonably have discovered that they had been harmed. In each of these cases, there was no significant doubt concerning the cause of the harm once the plaintiffs discovered it. In this case, on the other hand, the plaintiff was always well aware that she had sustained substantial physical harm. The question is whether she was sufficiently on notice as to the cause of her physical harm.

Construing Massachusetts law, the Court of Appeals for the First Circuit in 1983 faced the question of the level of notice of causation a plaintiff must have to trigger the running of the statute of limitations. Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir.1983). The Court of Appeals said: "Defining how much notice of cause is enough notice is inherently problematic where, as here, establishment of actual causation is itself an issue to be resolved at trial on the merits. If cause were defined in its strictest sense, a cause of action would never accrue for purposes of the statute until cause, when at issue, had been resolved at trial. See Dawson v. Eli Lilly & Co., 543 F.Supp. 1330, 1334 (D.D.C.1982). Such a definition would entirely defeat the purposes of a statute of limitations in this class of cases, and we know of no court which has gone so far." Id. at 198. The court concluded "that under Massachusetts law notice of likely cause is ordinarily enough to start the statute running. Thus on notice, the potential litigant has the duty to discover from the legal, scientific, and medical communities whether the theory of causation is supportable and whether it supports a legal claim." Id. at 199.

The plaintiff argues that the reference to "notice of likely cause" in the quoted language means that a plaintiff must have probable cause to believe that the defendant's acts were the cause of her physical injuries before the statute begins to run. There is no Massachusetts case law in support of this view. The Court of Appeals opinion does not adopt that position. Our Appeals Court did not read the Court of Appeals opinion as the plaintiff claims when it said: "Massachusetts does not require discovery of each of the elements of the cause of action--duty, breach, causation, and damages before the limitation clock in G.L. c. 260, § 4 starts ticking.... Rather, the three-year limitations period commences to run when a reasonably prudent person (in the tort claimant's position), reacting to any suspicious circumstances of which he might have been aware (what the Court of Appeals in Fidler called 'likely cause'), should have discovered that he had been harmed by his physician's treatment." (Citations and footnote omitted.) Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 382-383, 487 N.E.2d 533 (1986). We do not require that a plaintiff have notice of a breach of a duty before a cause of action may accrue, but we do require that a plaintiff have (1) knowledge or sufficient notice that she was harmed and (2) knowledge or sufficient notice of what the cause of harm was.

We shall now turn to the summary judgment record to see whether a reasonable person in the position of the plaintiff would have been on notice that her mother's ingestion of DES may have caused the plaintiff's cancer. Whether in a given case there was significant notice of causation depends on the facts. We conclude that the plaintiff had such direct information bearing on the cause of her cancer that the statute of limitations ran before this action was commenced.

After the 1969 operation on the plaintiff, at the request of the operating surgeon, the plaintiff and her mother met with Dr. Arthur L. Herbst, a medical researcher. Dr. Herbst asked them many questions, including...