Fleishman v. Eli Lilly and Co.

• Decision Date: 12 June 1984
• Parties: , 467 N.E.2d 517 Linda FLEISHMAN, Appellant, v. ELI LILLY AND COMPANY et al., Respondents. Carolyn MANNO et al., Appellants, v. Gerard LEVI et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 853

478 N.Y.S.2d 853

62 N.Y.2d 888, 467 N.E.2d 517

Linda FLEISHMAN, Appellant, v. ELI LILLY AND COMPANY et al., Respondents.

Carolyn MANNO et al., Appellants, v. Gerard LEVI et al., Respondents.

Court of Appeals of New York.

June 12, 1984.

Alfred S. Julien and William D. Fireman, New York City, for Linda Fleishman, appellant

Harvey W. Spizz, Mineola, for Carol Manno and another, appellants.

Russell H. Beatie, Jr., Sanford N. Berland and Babette L. D'Amelio, New York City, for Eli Lilly and Company, respondent.

Charles M. McCaghey, Terrence J. O'Rourke and Grace M. Healy, New York City, for E.R. Squibb & Sons, Inc., respondent.

Robert J. Woody and Thomas C. Rice, New York City, for Winthrop Laboratories, respondent.

Nancy Ledy Gurren, John J. Bower and Leah G. Kaplan, New York City, for The Upjohn Company, respondent.

Kenneth Mauro, New York City, for Gerard Levi, respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division in each case should be affirmed, with costs.

There is no showing in the record in either case of sufficient legal significance to warrant departure from our prior decisions. (Matter of Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297, remittitur and 55 N.Y.2d 802, 447 N.Y.S.2d 437, 432 N.E.2d 139, app. dsmd. cert. den. 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840; Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002; Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, remittitur amd 12 N.Y.2d 1073, 239 N.Y.S.2d 896, 190 N.E.2d 253, cert. den. 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032; Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824, rearg. den. 271 N.Y. 531, 2 N.E.2d 680.) We most recently reaffirmed our adherence to these decisions in Martin v. Edwards Labs., 60 N.Y.2d 417, 425-426, 469 N.Y.S.2d 923, 457 N.E.2d 1150. Any departure from the policies underlying these well-established precedents is a matter for the Legislature and not the courts. Chief Judge Cooke (dissenting). Admittedly, the injuries in this case are essentially no different than the injuries suffered because of the delayed or slow action of inhaled asbestos (Matter of Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297, app. dsmd. 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840; Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824), or cancer-causing drug injections (Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002; Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, cert. den. 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032). But, because I believe that the reliance on past precedent is no longer justified, I respectfully dissent.

It appears that the primary proffered rationale for continuing the rule that the causes of action accrue in the present cases upon contact with the cancer-causing agent is the doctrine of stare decisis. If this were a completely inflexible rule, I would acquiesce in the continuance of the result first enunciated in 1936 in Schmidt v. Merchants Desp. Transp. Co. (supra). However, the law is not and should not be so inflexible that it cannot correct itself from injustice and unfounded concerns espoused in prior decisions (see Woods v. Lancet, 303 N.Y. 349, 354-355, 102 N.E.2d 691). True, precedent is not to be abandoned lightly or without compelling circumstances, for it serves an important purpose of maintaining stability in the law (see Cenven, Inc. v. Bethlehem Steel Corp., 41 N.Y.2d 842, 843, 393 N.Y.S.2d 700, 362 N.E.2d 251; Heyert v. Orange & Rockland Utilities, 17 N.Y.2d 352, 360, 271 N.Y.S.2d 201, 218 N.E.2d 263; Sprecher, 31 ABAJ 501) and "it would be foolhardy not to recognize that there is potential for jurisprudential scandal in a court which decides one way one day and another way the next" (People v. Hobson, 39 N.Y.2d 479, 488, 384 N.Y.S.2d 419, 348 N.E.2d 894). On the other hand, the doctrine should not be used as a shield behind which a court may hide as reason for perpetuating unnecessary and profound unfairness, which subjects the law to ridicule. "Tort cases, but especially personal injury cases, offer another example where courts will, if necessary, more readily re-examine established precedent to achieve the ends of justice in a more modern context (see, e.g., Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275; Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81; Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3; Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691). Significantly, in these cases the line of precedent, although well established, was found to be analytically unacceptable, and, more important, out of step with the times and the reasonable expectations of members of society." (People v. Hobson, 39 N.Y.2d 479, 489, 384 N.Y.S.2d 419, 348 N.E.2d 894, supra.)

A grave injustice--to victims of DES as well as to past and future victims of identified and unidentified substances which do not immediately make known their harmful effect upon the body but have a "time-bomb" effect--is worked by the current rule of law which requires negligence and products liability causes of action to be brought before a plaintiff could reasonably know of their existence and very likely before any medically cognizable injury has occurred. It is time to abandon that inequitable rule as a mistake of the past that we have a duty to correct (see Woods v. Lancet, 303 N.Y. 349, 354-355, 102 N.E.2d 691, supra ). The current rule is unreasonable and the Statute of Limitations should not be construed in such a manner (see Urie v. Thompson, 337 U.S. 163, 168-171, 69 S.Ct. 1018, 1023-25, 93 L.Ed. 1282; Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 783-785, 417 N.Y.S.2d 920, 391 N.E.2d 1002, supra Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 219-220, 237 N.Y.S.2d 714, 188 N.E.2d 142, supra Heath v. Sears, Roebuck & Co., 123 N.H. 512, 524, 464 A.2d 288, 295).

It is not persuasive to say that any change is better left to the Legislature. That the determination of when a cause of action accrues is not solely a matter for the Legislature, is plainly evident by this court's determination here and previously, that a cause of action of this type accrues upon injury which is assumed to occur at the time of exposure, ingestion or injection of the cancer-causing foreign substance (see, e.g., Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, supra; Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824 supra ). Indeed, when this court acted to change the common law by adopting a date-of-discovery rule for the commencement of foreign-object medical malpractice cases, it stated: "Our decision does not encroach upon any legislative prerogatives. The Legislature did not provide that the Statute of Limitations should run from the time of the medical malpractice. This court did. Therefore, a determination that the time of accrual is the time of discovery is no more judicial legislation than was the original determination. Granted, the Legislature could have acted to change our rule; however, we would surrender our own function if we were to refuse to deliberate upon unsatisfactory court-made rules simply because a period of time has elapsed and the Legislature has not seen fit to act." (Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 434, 301 N.Y.S.2d 23, 248 N.E.2d 871; see Woods v Lancet, 303 N.Y. 349, 354-356, 102 N.E.2d 691, supra ).

As recently stated by this court: "When limitations begin to run 'depends on a nice balancing of policy considerations' (Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d, supra, at p. 403, 373 N.Y.S.2d 39, 335 N.E.2d 275) reflecting the manufacturer's interest in defending a claim before his ability to do so has deteriorated through passage of time, on the one hand, and, on the other, the injured person's interest in not being deprived of his claim before he has had a reasonable chance to assert it (id. Caffaro v. Trayna, 35 N.Y.2d 245, 250-252, 360 N.Y.S.2d 847, 319 N.E.2d 174; Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 429-431, 301 N.Y.S.2d 23, 248 N.E.2d 871)." (Martin v. Edwards Labs., 60 N.Y.2d 417, 425, 469 N.Y.S.2d 923, 457 N.E.2d 1150.) Here, the balance of policy considerations weighs heavily in favor of plaintiffs and indicates that a discovery rule...