Diamond v. E. R. Squibb and Sons, Inc.

Decision Date16 April 1981
Docket NumberNo. 56451,56451
Citation397 So.2d 671
PartiesNina DIAMOND, Adele Diamond, and William Diamond, Petitioners, v. E. R. SQUIBB AND SONS, INC., Respondent.
CourtFlorida Supreme Court

Mark Krasnow of Law Offices of Lida & Krasnow, Miami, Alan E. Weinstein, Miami Beach, for petitioners.

James C. Blecke and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondent.

BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision in Diamond v. E. R. Squibb & Sons, Inc., 366 So.2d 1221 (Fla.3d DCA 1979). Jurisdiction is predicated on conflict with Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979). Art. V, § 3(b)(3), Fla.Const. (1972). We conclude that under the principle laid down in Overland, which was decided after the decision in the case under review, the district court of appeal was in error and its decision must be quashed.

On April 1, 1977, Nina Diamond and her parents brought this action against E. R. Squibb and Sons, Inc., based on negligence and product liability. They alleged that from July 27, 1955, to April 1, 1956, Nina Diamond, while yet unborn, had administered to her a drug known as diethylstilbestrol, produced by the Squibb company under the trademark "stilbetin." They alleged further that in May, 1976, they learned that teenaged girls whose mothers had been treated with stilbetin during pregnancy were developing cancerous or pre-cancerous conditions. The complaint charged that in developing, promoting, and marketing the drug, Squibb knew or should have known that it was not safe.

The defendant Squibb moved for summary judgment on the ground that section 95.031(2), Florida Statutes (1977), was applicable and barred the action. Section 95.031(2) provides:

Actions for products liability and fraud under subsection 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in subsection 95.11(3) but in any event within 12 years after the date of delivery of the completed product to its original purchaser or the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.

In response to the motion, the plaintiffs argued that section 95.031(2), if held to apply, would have abolished their right of action thereby depriving them of due process of law and denying them access to courts in violation of article I, section 21, Florida Constitution. The circuit court ruled for defendant and entered summary judgment.

Article I, section 21, Florida Constitution, provides: "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."

The operation of section 95.031(2) in this case has the same effect as it had in Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979). The statute of limitations operated there to bar the cause of action before it ever accrued, so that no judicial forum was available to the aggrieved plaintiff. A majority of the members of this Court declared the limitations period unconstitutional as applied on the ground that it violated article I, section 21, Florida Constitution.

We find that binding precedent exists because petitioners' right of action was barred before it ever existed, as in Overland. We therefore hold that as applied in this case, section 95.031(2) violates the Florida Constitution's guaranty of access to courts.

The district court's decision is quashed and the...

To continue reading

Request your trial
53 cases
  • Kenyon v. Hammer
    • United States
    • Arizona Supreme Court
    • September 19, 1984
    ...court provision; common law actions may not be abrogated by the legislature absent a legitimate social purpose); Diamond v. E.R. Squibb & Sons, 397 So.2d 671 (Fla.1981) (a case containing many factual similarities to the case at bench; plaintiff mother had been treated with DES during pregn......
  • Ecker v. Town of West Hartford
    • United States
    • Connecticut Supreme Court
    • September 8, 1987
    ...Sirmons, supra; Saylor v. Hall, supra. It must also be noted that none of these four cases or the fifth case of Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981), cited by the plaintiff, involved a repose period contained within a wrongful death statute. Thus, we do not find the......
  • Givens v. Anchor Packing, Inc.
    • United States
    • Nebraska Supreme Court
    • March 15, 1991
    ...& Co., 123 N.H. 512, 464 A.2d 288 (1983); Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996 (Ala.1982); Diamond v. E.R. Squibb and Sons, Inc., 397 So.2d 671 (Fla.1981); Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo.1980); Overland Const. Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979);......
  • Bogorff By and Through Bogorff v. Koch
    • United States
    • Florida District Court of Appeals
    • April 18, 1989
    ...does not bar a cause of action before it accrues, thereby denying an injured party access to the courts. See Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981); Purk v. Federal Press Co., 387 So.2d 354 (Fla.1980); Bauld v. J.A. Jones Constr. Co., 357 So.2d 401 The statute of limi......
  • Request a trial to view additional results
1 books & journal articles
  • Diethylstilbestrol and the Birth of Market-Share Liability
    • United States
    • Looking back to move forward: resolving health & environmental crises Section I
    • October 11, 2020
    ...he Florida Supreme Court later reinstated the cause of action, citing the Florida Constitution. Diamond v. E.R. Squibb & Sons, Inc., 397 So. 2d 671, 672 (Fla. 1981). 29. See Bernstein, supra note 1, at 162–63. Copyright © 2020 Environmental Law Institute®, Washington, DC. Diethylstilbestrol......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT