Cavanaugh v. Abbott Laboratories

• Decision Date: 26 April 1985
• Docket Number: No. 84-012,84-012
• Court: Vermont Supreme Court
• Parties: Donna Marie CAVANAUGH v. ABBOTT LABORATORIES, Upjohn Company, Schering Corp., White Laboratories, Merck and Co., Inc., E.R. Squibb & Sons, Inc., and Eli Lilly and Co.

Page 154

496 A.2d 154

145 Vt. 516

Donna Marie CAVANAUGH v. ABBOTT LABORATORIES, Upjohn Company, Schering Corp., White Laboratories, Merck and Co., Inc., E.R. Squibb &amp Sons, Inc., and Eli Lilly and Co.

No. 84-012.

Supreme Court of Vermont.

April 26, 1985.

Robert E. Manchester and Geoffrey W. Crawford of Manchester & O'Neill, P.C., Burlington, for plaintiff-appellee.

John T. Sartore and Stephen J. Soule of Paul, Frank & Collins, Inc., Burlington, for defendant-appellant Abbott Laboratories.

William H. Quinn of Pierson, Affolter & Wadhams, Burlington (William E. Bush, Kalamazoo, Mich., of counsel), for defendant-appellant The Upjohn Co.

McNamara, Fitzpatrick & McCormick, Burlington, for defendants-appellants Schering Corp. and White Laboratories, Inc.

Saxer, Anderson & Wolinsky, Burlington, for defendant-appellant Merck and Co.

James W. Spink of Dinse, Allen & Erdmann, Burlington, for defendant-appellant E.R. Squibb & Sons, Inc.

Richard E. Davis and Edwin W. Free, Jr., of Richard E. Davis Associates, Inc., Barre, and Marshall Simonds, P.C., James J. Dillon, and Timothy J. Langella of Goodwin, Procter & Hoar, Boston, Mass., for defendant-appellant Eli Lilly and Co.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

This is an interlocutory appeal by seven defendant drug manufacturers, in a drug product liability case, challenging the correctness of the order of the Addison Superior Court denying their motions for either judgment on the pleadings or summary judgment. Each of the defendants in support of its motion claimed it was entitled to judgment as a matter of law, alleging that the plaintiff's drug product liability suit against them was barred by applicable statutes of limitations.

In her complaint, plaintiff alleges that before she was born on March 16, 1957, and while in utero, she was exposed to a synthetic estrogen known as diethylstilbestrol (hereinafter referred to as DES) manufactured by some or all of the defendants. She further alleges that the drug was prescribed by her mother's physician and that her mother ingested it while plaintiff was a fetus en ventre sa mere. She avers that she was blamelessly ignorant of the harmful effect of DES upon her, and that even by due diligence her injury was not discoverable, and it did not manifest itself, until May 1, 1979. It was then her physician diagnosed that she had contracted a form of vaginal cancer, known as clear cell adenocarcinoma, caused by her fetal exposure to DES. The plaintiff maintains that this drug, together with other factors, including puberty and menarche, was a proximate cause of her cancer.

The questions presented to us by these appeals are: (1) whether, 54 years later, we should now jettison the rule of Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), as an outmoded and unrealistic interpretation of the term "accrues" as used in 12 V.S.A. § 512 (personal injury action must be commenced within three years "after the cause of action accrues" and not after), and hold that plaintiff's cause of action is not barred by the aforementioned three-year statute of limitations, and (2) if plaintiff's cause of action is not barred by the rule of Murray v. Allen, supra, whether it is barred by the 20-year statute of repose, 12 V.S.A. § 518, which bars claims commenced more than 20 years after the "last occurrence to which injury is attributed."

We hold that the rule of Murray v. Allen is of no further effect in determining the date when a statute of limitations, such as 12 V.S.A. §§ 512 and 513, commences to run, and that on the basis of the evidence before the trial court, the plaintiff's cause of action is not barred by the applicable statute of repose, 12 V.S.A. § 518. We therefore affirm the trial court's denial of the defendants' motions for judgment on the pleadings and for summary judgment.

FACTS

In the proceedings before the trial court, some of the defendants framed their motions as motions for judgment on the pleadings, V.R.C.P. 12(c), while others filed motions for summary judgment pursuant to V.R.C.P. 56. Where matters outside the pleadings were presented to the trial court and were not excluded by it, the trial court correctly considered them as motions for summary judgment. V.R.C.P. 12(c). In moving for summary judgment,

[t]he movant has the burden of proof, and the party opposing the summary judgment motion is to be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue exists. Facts asserted by the opposing party, if supported by affidavits or other evidentiary material, are regarded as true.

Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d 1388, 1389 (1981) (citations omitted) (overruled on other grounds by Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983)). This Court will apply the same standard upon review as applied by a trial court when considering the correct disposition of a motion for summary judgment. Braun, supra, 140 Vt. at 306, 437 A.2d at 1389. With this standard in mind, the following facts are relevant to the appeals considered herein.

As alleged in the complaint, the plaintiff was born in Vermont on March 16, 1957. Prior to the plaintiff's birth, her mother had been taking DES. The plaintiff experienced menarche (the first occurrence of menstruation) at the age of twelve or thirteen. The plaintiff reached the age of eighteen on March 16, 1975, and the age of twenty-one on March 16, 1978. On May 1, 1979, the plaintiff was diagnosed as suffering from a vaginal adenocarcinoma (cancer). The disease had not been discovered, nor had it manifested itself nor could it have been diagnosed, prior to that date. The action in the present case was commenced by the plaintiff on April 23, 1982.

I. STATUTE OF LIMITATIONS

A. DATE OF ACCRUAL

The initial question which must be decided is which statute of limitations applies to the plaintiff's cause of action in the present case. This decision is dependent upon a determination of the date upon which the plaintiff's cause of action accrued because the applicable statute of limitations is that statute in effect at the time the cause of action accrued. Stewart v. Darrow, 141 Vt. 248, 253, 448 A.2d 788, 790 (1982).

Vermont law has recognized two different definitions of the term "accrue." Under current statutory law, 12 V.S.A. § 512(4) (Supp.1984) (amended by 1975, No. 248 (Adj.Sess.)), ¹ a cause of action in a personal injury case "shall be deemed to accrue as of the date of the discovery of the injury." Under this definition of "accrue," the plaintiff's cause of action would have accrued on May 1, 1979, the date upon which she discovered she was suffering from cancer. As discussed in Part I-D infra, the applicable statute of limitations in effect on that date does not bar the plaintiff's cause of action.

The second definition of the term "accrue" is that definition recognized by case law prior to the enactment of the statutory definition in 12 V.S.A. § 512(4) (Supp.1984). Prior to the enactment of that statute, the definition of "accrue" was set forth in Murray v. Allen, supra. In that case, this Court held that a cause of action in tort accrued at the time of the last negligent act attributable to the defendant. Id. 103 Vt. at 376, 154 A. at 679. Were we to apply that rule in the present case, the plaintiff's cause of action would be barred. The date of the last negligent act attributable to the defendants is March 16, 1957, plaintiff's date of birth, the last day on which ingestion of DES by the plaintiff's mother could have had any deleterious effect on the plaintiff. Thus, the date of accrual would be March 16, 1957, and the applicable statute of limitations in effect on that date was 12 V.S.A. § 512 (1959). ² Pursuant to that statute, a three-year statute of limitations would have been applicable to the plaintiff's cause of action in the present case. However, the three-year statute of limitations would have been tolled until such time as the plaintiff had reached her age of majority. 12 V.S.A. § 551. If the plaintiff's age of majority is deemed to be her twenty-first birthday, the latest possible date for her to have initiated a cause of action in Vermont, without it being barred by an applicable statute of limitations, would have been March 16, 1981--three years after her twenty-first birthday and more than one year prior to the actual date upon which she commenced this action.

As discussed in Parts I-B and I-C infra, this Court has decided that the rule of Murray v. Allen, supra, should be overruled, and that the term "accrue" should be given a uniform meaning, regardless of when any particular cause of action actually arose. Thus this Court has decided that the statutory definition of the term "accrue," as set out in 12 V.S.A. § 512(4) (Supp.1984), shall apply to all causes of action arising before the enactment of that statute. Defendants, however, argue that such a decision is proscribed by 1 V.S.A. § 214(b), ³ which prohibits the retroactive application of statutes affecting rights and liabilities. However, the definition of "accrue" which the defendants would have us apply in the present case was the result of a judicial determination as set forth in case law, and was not, therefore, the result of any specific legislative enactment. While the provisions of 1 V.S.A. § 214(b) provide that statutory changes will not generally be given retroactive application, the provisions of this statute do not prevent this Court from reconsidering the continued application of judge-made law. Having decided to overrule the rule in Murray v. Allen, supra, we are not foreclosed by 1 V.S.A. § 214(b) from applying any new rule that we decide to adopt in place of the pre-existing rule.

B. MURRAY V. ALLEN

This Court, on several occasions, has been asked to reconsider its definition of "accrue" as set forth in Murray. See Capron v. Romeyn, 137 Vt. 553,...