Dawson v. Eli Lilly and Co., Civ. A. No. 81-1288.

• Decision Date: 28 July 1982
• Docket Number: Civ. A. No. 81-1288.
• Citation: 543 F. Supp. 1330
• Parties: Patricia Brogan DAWSON, et al., Plaintiffs, v. ELI LILLY AND COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

543 F. Supp. 1330

Patricia Brogan DAWSON, et al., Plaintiffs, v. ELI LILLY AND COMPANY, et al., Defendants.

Civ. A. No. 81-1288.

United States District Court, District of Columbia.

July 28, 1982.

Aaron M. Levine, Washington, D.C., for plaintiffs.

James A. Hourihan, Washington, D.C., for Eli Lilly.

Gail S. Marshall, James M. Heffler, Washington, D.C., for Upjohn.

Timothy C. Russell, Washington, D.C., for Merck & Co.

William J. Donnelly, Washington, D.C., for Squibb Corp.

Harold D. Murry, Jr., Barry J. Isreal, Washington, D.C., for Abbott Laboratories.

ORDER

JOYCE HENS GREEN, District Judge.

Defendants Eli Lilly and Company, Abbott Laboratories, E.R. Squibb & Sons, Inc., and Upjohn Company have moved for summary judgment and to dismiss the complaint on the basis of the statute of limitations. The undisputed facts are as follows. In 1973, when plaintiff was seventeen years old, her mother read an article in the newspaper about diethylstilbestrol (DES) and its effects on the daughters of women who took the drug during pregnancy. She then ascertained from her obstetrician that she had taken DES during her pregnancy with the plaintiff. That same day, she discussed these matters with her daughter, and about two weeks later, plaintiff was taken to a Dr. Marlow for a gynecological examination. Dr. Marlow diagnosed plaintiff's condition as cervical adenosis. At that time, plaintiff took a pamphlet on DES from a table in the doctor's office. Pltf.'s Deposition at 40-45. Dr. Marlow also told plaintiff at the first visit that there are cases where cancer has developed from taking DES. Pltf.'s Deposition at 90-91. Since that time, plaintiff has continued to visit Dr. Marlow two to four times a year for check-ups related to her adenosis and to determine whether any cancer cells have developed. Deposition at 56-58, 89.

Thus, although the record does not reveal directly that plaintiff was informed that her condition was or might be a result of her mother's ingestion of DES, it is clear from the circumstances surrounding the diagnosis of her adenosis that she was aware at that time of a possible connection between her condition and DES. She was taken to the doctor precisely because her mother had discovered that she had taken DES during her pregnancy with plaintiff, she picked up DES pamphlets in the doctor's office, and the doctor told her that cancer had been known to develop "from taking DES." She was subsequently checked regularly for the possible development of cancer. Plaintiff admits that she knew, as early as 1973, "of the possibility of a causal nexus" between DES and her condition, but states that she was not told of a "clear and certain causal relationship" at that time. Plaintiff's Opposition to Motion for Summary Judgment at 6.

It is agreed that District of Columbia law applies to this question. See Manatee Cablevision Corp. v. Pierson, 433 F.Supp. 571 (1977). Until 1978, the age of majority for statute of limitations purposes in the District of Columbia was 21 years of age. Plaintiff turned 21 on December 4, 1976. The statute of limitations for a claim for personal injury based on negligent manufacturing, products liability, breach of warranty and misrepresentation, (Counts I-IV of the Complaint), is three years. D.C.Code § 12-301(8). Defendants claim that Count V, intentional infliction of emotional distress, is governed by the one year statute of limitations applied to libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment under D.C.Code § 12-301(4) because it is an intentional tort. Plaintiff does not dispute the limitations periods claimed by defendants, but asserts that she did not discover information essential for the accrual of her claim until November, 1980, which is less than a year before she filed this claim. Defendants argue that since plaintiff knew of both her injury and its connection to DES since before her 21st birthday, the statute began to run on December 4, 1976, and expired for all her claims on December 4, 1979. This case was brought June 5, 1981.

Plaintiff makes two arguments in opposition to defendants' motions. First, she did not know of a "clear and certain causal relationship" between DES and her condition. Defendants' representatives have testified as recently as 1981 in various depositions to the effect that there is no certain relationship between ingestion of DES by pregnant women and adenosis or malformation of the sexual organs of their offspring, or that their companies take no position on the question. Plaintiff argues that if defendants' experts in 1981 did not know of a causal link, it cannot be decided as a matter of law that she should have known of the causal link before June 5, 1978. Secondly, plaintiff argues that District of Columbia law requires not only a knowledge of the injury and its cause, but also knowledge of some wrongful conduct on the part of the defendant, to begin the running of the statute of limitations. Plaintiff has submitted an affidavit to the effect that she was unaware until November, 1980 that at the time of her gestational period, DES was "marketed without adequate testing as to its safety nor efficacy (to prevent abortion) ...". Defendant argues that knowledge of wrongful conduct is not necessary to begin the limitations period.

The parties agree, although they differ as to its requirements, that a "discovery" rule applies to this action under District of Columbia law. That is, the cause of action accrues for limitations purposes not when the injury first occurred, (here, in plaintiff's gestational period), but when plaintiff discovered, or by the exercise of due diligence should have discovered, the facts giving rise to her claim. Jones v. Rogers Memorial Hospital, 442 F.2d 773 (D.C.Cir.1971); Kelton v. District of Columbia, 413 A.2d 919 (D.C.App.1980); Burns v. Bell, 409 A.2d 614 (D.C.App.1979); Grigsby v. Sterling Drug, Inc., 428 F.Supp. 242 (D.D. C.1975), aff'd without opinion, 543 F.2d 417 (D.C.Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977). Exactly what those facts are has not been precisely defined in the District of Columbia. Rather, each case appears to refer to the elements of the cause of action which were belatedly discovered under the particular circumstances. In Jones v. Rogers Memorial Hospital, the court held that the statute of limitations did not begin to run at the time of allegedly negligently performed surgery, but rather when the injury caused by the surgery was discovered. The plaintiff's discovery of the causal relationship between the surgery and the injury, or between the injury and defendant's negligence were not discussed, likely because these facts were evident at the time of the discovery of the injury. Kelton v. District of Columbia involved an alleged unconsented tubal ligation performed during a Caesarean section delivery. The court held that the statute began to run at the time plaintiff was told that surgery had revealed scars on the Fallopian tubes indicating that either a deliberate tubal ligation or surgical trauma might have occurred at some time in the past. Again discovery of a causal connection with defendant's conduct, or of a possibility of wrongdoing on the part of the defendant were not discussed. However, the only possibility for a later accrual date that appears to have been raised is the time when plaintiff received her medical records concerning the Caesarean procedure from the hospital, which revealed that her consent forms did not cover a tubal ligation and that there were no signs of medical emergency requiring one. Although the opinion does not state exactly why that later date was rejected, it is logical to assume that the court considered plaintiff's discovery that a surgical procedure she had neither desired nor requested may have been performed was enough to put her on notice that "she might have suffered an actionable injury," 413 A.2d at 921, i.e. that wrongdoing was involved, without the additional information from the hospital records.

Where a plaintiff knew that her injuries were caused by defendant's surgery, but claimed to have believed for several years that they were a natural or usual after-effect of the surgery, the District of Columbia Court of Appeals held that the time of discovery was a jury question. Burns v. Bell. Plaintiff in that case experienced numbness and pain and continued to have scars several years after the performance of a facelift operation. Her doctor repeatedly reassured her, however, that she was progressing satisfactorily and would continue to improve. It was not until she saw the results of a similar operation on a friend some five or six years after her initial operation that she concluded that she had not healed properly. The court stated that a jury could find that the statute did not begin to run until that time, because plaintiff, who lacked medical expertise, had no way of knowing whether her doctor's assurances were reasonable. Although the Burns court did not phrase it this way, plaintiff already knew of her injuries and their causation but did not know that they were a result of malpractice, i.e. defendant's wrongdoing.

The discovery rule as applied to a drug products liability action was phrased in the following manner in Grigsby v. Sterling Drug, Inc.:

The statute of limitations on each of the causes of action begins to run from the time plaintiff learned, or in the exercise of due diligence could have learned, that her injuries were not simply misfortune, but resulted from an undisclosed defect in defendants' product.

428 F.Supp. at 243. Summary judgment based upon the statute of limitations was granted in Grigsby despite the fact that "these are issues which must be left to the trier of fact in all but the most exceptional cases," Id., because plaintiff was told in 1968 that her hearing loss was most likely caused by defendant's drug,...