Bruck v. Eli Lilly & Co.

• Citation: 523 F. Supp. 480
• Decision Date: 02 October 1981
• Docket Number: No. C-1-79-462.,C-1-79-462.
• Parties: Edward E. BRUCK, et al., Plaintiffs, v. ELI LILLY AND COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

523 F. Supp. 480

Edward E. BRUCK, et al., Plaintiffs, v. ELI LILLY AND COMPANY, et al., Defendants.

No. C-1-79-462.

United States District Court, S. D. Ohio, W. D.

October 2, 1981.

Thomas H. Bleakley, Detroit, Mich., Thomas H. Stubbs, Jr., Middletown, Ohio, for plaintiffs.

Ralph F. Mitchell, Cincinnati, Ohio, for E. R. Squibb & Sons.

Arthur T. Knabe, Cincinnati, Ohio, for Rexall Drug Co.

Robert T. Keeler, Cincinnati, Ohio, for Eli Lilly Co.

Frank C. Woodside, III, Cincinnati, Ohio, for Abbott Laboratories.

Jacob K. Stein, Cincinnati, Ohio, for Merck, Sharpe & Dohme.

Frederick J. McGavran, Cincinnati, Ohio, for Upjohn Co.

SPIEGEL, District Judge:

This action is before the Court on defendants' motion for partial summary judgment and motion for judgment on the pleadings (doc. 67), plaintiffs' memorandum in opposition (doc. 75), and defendants' reply. For the foregoing reasons, we find that defendants' motions should be granted.

The narrow question which we must decide is whether there is "no genuine issue as to any material fact and whether the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court cannot try issues of fact on a Rule 56 motion, but is empowered only to determine whether there are issues to be tried. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2712 at 379 (1973). The moving party "has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979). (Emphasis original.) And, "while the movant's papers are to be closely scrutinized, those of the opponent are to be viewed indulgently." Id. at 63. "The District Court is obligated to consider not only the materials specifically offered in support of the motion, but also all `pleadings, depositions, answers to interrogatories, and admissions' properly on file and thus properly before the court." Id., quoting Fed.R.Civ.P. 56(c). Summary judgment "must be used only with extreme caution for it operates to deny a litigant his day in court." Id. at 63.

The facts essential to this motion may be briefly summarized. Early in 1958, plaintiff Margaret Bruck became pregnant with Victoria Bruck. During the course of her pregnancy, Margaret Bruck took Diethylstilbestrol (DES) on the advice of her physician to prevent a spontaneous abortion. When Victoria was about fourteen years old, Margaret read that DES was suspected of causing cancer in the daughters of women who took the drug while pregnant. Victoria thereafter made yearly visits to a doctor and in September 1976 vaginal cancer was discovered. Victoria was seventeen years old. Victoria subsequently underwent extensive surgery and radiation treatment. She died in May 1978.

This wrongful death action was brought by plaintiffs Edward E. Bruck and Margaret Bruck, the parents of Victoria Bruck and the administrators of her estate. The case was originally filed on December 28, 1978, in the United States District Court for the Eastern District of Michigan, with jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. That action was dismissed without prejudice on January 19, 1979 for failure to set forth appropriate jurisdictional facts. On February 19, 1979 plaintiffs refiled the present action in the United States District Court for the Eastern District of Michigan. The case was transferred to the Southern District of Ohio on August 17, 1979, pursuant to 28 U.S.C. § 1404.

The basis of defendants' motion for partial summary judgment is that Ohio's two-year statute of limitations for filing a personal injury action expired before plaintiffs filed this lawsuit. Ohio Revised Code § 2305.10. Defendants do not challenge plaintiffs' right to maintain their action for the wrongful death of Victoria Bruck, but challenge the inclusion of a claim for pain and suffering and for punitive damages. The Ohio Wrongful Death Act does not allow recovery for the decedent's pain and suffering, nor for punitive damages. Ohio Revised Code § 2125.01. A claim for pain and suffering may be made in an action for personal injuries, which claim survives the death of the injured party, but is subject to the two-year statute of limitations. Ohio Revised Code § 2305.21. Punitive damages may also be proper in an action for personal injury.

Plaintiffs claim that the complaint was drafted to set forth an action under Michigan's Wrongful Death Act, MCLA 600.2922, which provides for pain and suffering, loss of society and punitive damages. It is not clear whether plaintiffs challenge the application of Ohio law to this action, but after careful study, we agree with defendants that the law of Ohio must be applied.

Plaintiffs appear to accept Ohio law as proper authority by invoking the "Saving Clause" of the Ohio Code, which provides that the statute of limitations does not begin to run against any person who is out of the state when the cause of action accrues. Ohio Revised Code § 2305.15. Because all of the defendants are foreign corporations, plaintiffs claim that the statute of limitations has never begun to run against them and that the action on behalf of Victoria Bruck for personal injury is therefore not barred. Both plaintiffs and defendants agree that in any event, the statute of limitations did not begin to run against Victoria Bruck until she reached the age of majority, which is 18 under Ohio law. Ohio Revised Code § 2305.16.

A. Conflicts of Law

Even though there is no clear dispute over which state law should be applied in this case, plaintiffs' claim that this action was filed under Michigan's Wrongful Death Statute led us to thoroughly examine the question. It is settled that a United States District Court having jurisdiction based on diversity of the parties must apply the substantive law of the state of the forum in which it sits. This includes that state's Conflict of Laws law. Klaxon v. Stentor Electric Manufacturing Company, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). It is also settled that if a case is transferred under 28 U.S.C. § 1404 on motion of the defendant, the transferee court must apply the law that would have been applied in the transferor court, so that a change of forum would mean a change in courtrooms, but not a change in law. Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 820, 11 L.Ed.2d 945 (1963). The question before the Court therefore is whether a Michigan state court hearing this case would apply the law of Michigan or Ohio.

Michigan recognizes the general rule of lex loci delicti: If a suit is filed in a Michigan court alleging injury for a wrong committed in another state, the Michigan courts will apply the substantive law of the state where the cause of action arose. Sweeney v. Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978); Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969).

Michigan has recognized an exception to this rule where the pertinent law of the state where the cause of action arose is against the public policy of Michigan. Sweeney v. Sweeney, supra; Kircher v. Kircher, 288 Mich. 669, 286 N.W. 120 (1939); Rick v. Saginaw Bay Towing Company, 132 Mich. 237, 93 N.W. 632 (1903). The Court, in Rick, noted that a law is not against the public policy of Michigan just because it is different, but only if it is "against good morals or natural justice, unless its enforcement would be prejudicial to the general interest of the citizens of the state." 132 Mich. at 240. This has been interpreted to mean that a public policy question exists if the law of the other state provides plaintiffs with a cause of action which does not exist in Michigan; such a cause of action will not be recognized by the Michigan courts. Kircher v. Kircher, supra, 288 Mich. at 671, 286 N.W. 120; Kaiser v. North, 292 Mich. 49, 289 N.W. 325 (1939).

In the one case in which the Michigan Supreme Court found that the public policy of Michigan demanded that the Courts apply Michigan substantive law rather than that of the lex loci, all the parties were Michigan residents, and the Court found a strong state interest in applying Michigan law. Sweeney v. Sweeney, supra, 402 Mich. at 242, 262 N.W.2d 625. In Sweeney, the law of the state where the cause of action arose barred the suit between the parties while the law of Michigan permitted it. The Court found that the public policy of the state of the parties' domicile demanded that plaintiffs be permitted to proceed with the suit. Id.

We find no public policy strong enough to warrant the application of Michigan law to this case. Michigan has no interest in this case; plaintiffs are citizens of Ohio, and the cause of action arose in Ohio, as did all events leading up to the deceased's illness and death. There is no way to conclude that a Michigan court would have applied Michigan law and we are bound to apply the law that would have been applied by the court in the original forum. The substantive law of Ohio therefore controls.

There is some question whether the measure of damages is a substantive or procedural matter. The general rule is that damages are determined by the state statute applied, which is generally where the cause of action arose. There are, however, cases decided under Michigan law that hold otherwise. Branyan v. Alpena Flying Service, Inc., 65 Mich.App. 1, 236 N.W.2d 739 (1975); Papizzo v. O. Robertson Transportation Limited, 401 F.Supp. 540 (E.D.Mich. 1975). Both of these wrongful death actions involve plaintiffs who were residents of Michigan, and both courts specifically found that Michigan had a strong interest in protecting the rights of its residents. Branyan, 65 Mich.App. at 9-10, 236 N.W.2d 739; Papizzo, 401 F.Supp. at 543.

Were plaintiffs in the instant case residents of...