Hadden v. Eli Lilly and Co.

• Decision Date: 21 March 1986
• Citation: 506 A.2d 844,208 N.J.Super. 716
• Parties: , Prod.Liab.Rep. (CCH) P 10,980 Sharon P. HADDEN and Jeffrey Hadden, Plaintiffs-Appellants, v. ELI LILLY AND COMPANY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 716

208 N.J.Super. 716

506 A.2d 844, Prod.Liab.Rep. (CCH) P 10,980

Sharon P. HADDEN and Jeffrey Hadden, Plaintiffs-Appellants, v. ELI LILLY AND COMPANY, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued March 11, 1986.

Decided March 21, 1986.

Edgar E. Moss, II, Moorestown, for appellants (Moss, Powers & Lezenby, Moorestown, attorneys; Timothy P. Beck, Moorestown, on brief).

John L. McGoldrick, Newark, for respondent (McCarter & English, Newark, attorneys; John L. McGoldrick, Newark, of counsel; John F. Brenner, Newark, on brief).

Before Judges PRESSLER, DREIER and GRUCCIO.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Plaintiff Sharon P. Hadden, whose husband sues per quod, brought this pharmaceutical products liability action against defendant Eli Lilly and Company claiming that she sustained in utero gynecological injury as a result of her mother's ingestion of diethylstilbestrol (DES) during the pregnancy. She appeals from a summary judgment dismissing her complaint as untimely filed. We reverse.

The facts of this controversy require us to consider the relationship between N.J.S.A. 2A:14-21, which provides for the tolling of the statute of limitations during infancy, and the so-called discovery rule, which defers the accrual of the cause of action for limitations purposes until the injured person knows or should know of the existence of a cause of action. See Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). The anomaly here is that, as we construe the significance of the operative facts, application of the tolling provision would permit a longer period of time in which to commence the action than would be allowable under the discovery rule. For the reasons set forth herein, we hold that in such circumstances the injured person is entitled to the benefit of the limitations rule affording the longer time.

For purposes of considering defendant's summary judgment motion, the following facts may be assumed. Plaintiff was born on February 11, 1954. Her mother, Dorothy Prizer, had, during the course of her pregnancy and pursuant to her physician's prescription, taken a DES product manufactured by defendant. In July 1974 plaintiff, who until that time had been asymptomatic, underwent a routine premarital gynecological examination which revealed the presence of abnormal cell growth in her cervix. Surgery ensued. Her physician, suspecting DES as the cause of the problem, reviewed her mother's medical records and ascertained that she had taken defendant's DES product while pregnant with plaintiff. The physician promptly discussed these matters with plaintiff and her family, explaining that plaintiff had to be closely watched because of the continuing DES risks. The trial judge found that plaintiff knew by August 1974 that she had been injured in utero by her mother's ingestion of DES. That finding was adequately supported by the evidence adduced at the preliminary evidential hearing.

The complaint was filed in October 1976, two years and three months after the date on which plaintiff was found to have discovered her cause of action. Rejecting plaintiff's argument that under N.J.S.A. 2A:14-21, she had until February 11, 1977, her twenty-third birthday, for the timely filing of her complaint, the trial judge concluded that since she had already reached her majority at the time she discovered the cause of action, it then accrued and the two-year statute of limitations started to run. This holding rested upon the perception that the tolling provision of N.J.S.A. 2A:14-21 was inapplicable. We disagree. It is our conclusion that under the circumstances here, the tolling statute both applies and is controlling.

The problem before us is complicated by the fact that during plaintiff's minority the age of majority was changed from 21 to 18. See N.J.S.A. 9:17B-1 to 3, (effective January 1, 1973). N.J.S.A. 2A:14-21 tolls the running of the statute of limitations on an infant's claim until age 21. Although that statute had not been amended to conform with N.J.S.A. 9:17B-1, et seq., the Legislature recognized the potential transition difficulties by expressly providing in N.J.S.A. 9:17B-2(e) that its enactment of N.J.S.A. 9:17B-1 et seq. was not intended to "[a]lter the provisions of N.J.S. 2A:14-21 with respect to the time within which a person under 21 years of age on January 1, 1973 may commence an action ... under a cause or right accrued prior to said date." See also Tyson v. Groze, 172 N.J.Super. 314, 411 A.2d 1170 (App.Div.1980).

Plaintiff was not quite 19 years old on January 1, 1973. If, therefore, her cause of action had accrued prior to that date, she would be entitled under the plain language of N.J.S.A. 9:17B-2(e) to the full benefit of the 21-year-old tolling provision of N.J.S.A. 2A:14-21, and the statute of limitations would not have run until her twenty-third birthday. Hence, her complaint would be timely.

The issue then is whether plaintiff's action accrued prior to 1973. At least for purposes of this motion, we can assume that the injury which is the gravamen of the complaint was inflicted on plaintiff in 1953 when her mother took DES. ¹ The fact that the injury did not manifest itself until twenty years later does not derogate from the fact that it actually took place in utero. In effect, it was a birth defect caused by the drug. Can it be said, however, that the cause of action accrued before the injury was discovered? The trial judge, relying on the so-called discovery rule, answered this question in the negative.

The discovery rule permits deferral of the accrual of a cause of action until the injured person knows or should know that he has sustained an injury or knows or should know that an injury of which he is aware is attributable to the fault of another person. See, e.g., Tevis v. Tevis, 79 N.J. 422, 430-432, 400 A.2d 1189 (1979). The rule is predicated on the premise that while the actionable injury has actually occurred prior to its discovery, the injured person should not be at risk of losing his cause of action until he has made his belated discovery. Hence it is on that date that the applicable statute of limitations starts to run. The discovery rule is thus an equitable doctrine devised by the courts to avoid manifest injustice. As expressed by Justice Pollock in O'Keeffe v. Snyder, 83 N.J. 478, 491, 416 A.2d 862 (1980):

To avoid harsh results from the mechanical application of the statute, the courts have developed a concept known as the discovery rule. The...