Hymowitz v. Eli Lilly and Co.

• Decision Date: 16 July 1987
• Citation: 136 Misc.2d 482,518 N.Y.S.2d 996
• Court: New York Supreme Court
• Parties: Mindy HYMOWITZ, Plaintiff, v. ELI LILLY AND COMPANY, Winthrop Laboratories, a division of Sterling Drug, Inc., the Upjohn Company, E.R. Squibb & Sons, and Ayerst Laboratories, a division of American Home Products, Corp., Defendants.

Page 996

518 N.Y.S.2d 996

136 Misc.2d 482

Mindy HYMOWITZ, Plaintiff, v. ELI LILLY AND COMPANY, Winthrop Laboratories, a division of Sterling Drug, Inc., the Upjohn Company, E.R. Squibb & Sons and Ayerst Laboratories, a division of American Home Products, Corp., Defendants.

Supreme Court, New York County IAS, Part 27.

July 16, 1987.

Rheingold & Golomb, P.C., New York City, for plaintiff hymowitz.

Olwine, Connelly, Chase, O'Donnell & Weyher, New York City, for defendant E.R. Squibb & Sons, Inc.

Stroock & Stroock & Lavan, New York City, for defendant the Upjohn Co.

Simpson Thacher & Bartlett, New York City, for Winthrop Laboratories.

Costello & Shea, New York City, for defendant Ayerst Laboratories, a div. of American Home Products Corp.

Russel H. Beatie, Jr., New York City, for co-defendant Eli Lilly and Co. IRA GAMMERMAN, Justice.

In this pharmaceutical product liability action, plaintiff Mindy Hymowitz alleges that she developed cancer as a result of prenatal exposure to diethylstilbestrol ("DES"), a synthetic estrogen taken by her mother in 1954 during pregnancy to prevent possible miscarriage.

Plaintiff was born on December 11, 1954. The cancerous condition for which plaintiff seeks damages allegedly appeared in 1979. Under the statute of limitations then applicable (CPLR 208, 214) plaintiff was barred from commencing suit in December, 1975 (three years after reaching the age of majority). Plaintiff brings this action, however, under the provisions of the 1986 revival statute (L.1986 ch. 682 § 4).

Plaintiff moves pursuant to CPLR 3212 to strike affirmative defenses raised by some defendants challenging the constitutionality of the revival statute and alleging that the action is time barred under the statute of limitations otherwise applicable.

Defendants Eli Lilly and Co. ("Lilly") Abbott Laboratories ("Abbott") and The Upjohn Company ("Upjohn") seek summary judgment and dismissal of the complaint as barred by the statute of limitations absent the availability of the allegedly unconstitutional revival statute.

Defendant E.R. Squibb & Sons ("Squibb") opposes the relief sought by plaintiff and contends that before the issue of the constitutionality of the revival statute is determined further discovery is required on the issue of whether such extraordinary circumstances exist in this case to justify invocation of the statute which Squibb also contends is unconstitutional. (Squibb further urges that discovery is needed to determine whether plaintiff can identify the manufacturer of the DES actually taken by her mother).

The revival portion of the 1986 tort reform legislation provides that actions seeking damages for personal injury, property damage or death caused by the latent effects of exposure to five substances (DES, asbestos, tungsten-carbide, chlordane and polyvinyl-chloride) that were time barred or dismissed, as of the effective date of the statute, may be instituted "... within one year from the effective date of this act." (L. 1986, ch. 682, § 4.) The statute was passed on July 1, 1986 and was signed by the Governor on July 30, 1986.

In addition to the revival provision for the five specified substances (§ 4), the new tort reform legislation adopted a general discovery based statute of limitations for injuries caused by latent effects of exposure to any substance (CPLR 214-c(2)). Under subsection 2, a victim may assert a cause of action within three years from the date the injury was or should have been discovered.

The provision for revival of claims (§ 4) and the discovery based statute of limitations (L. 1986, ch. 682, § 2) were intended by the Legislature to remedy the perceived injustice caused by the application of CPLR §§ 214, 208, (the exposure based statute of limitations) and to provide legal recourse for injuries caused by latent effects of toxic substances. Both provisions were enacted to remedy the failure of the old statute to recognize that such injuries may not appear until years after exposure, long after the expiration of the period within which actions may be instituted.

Legislative history indicates that the five named substances were distinguished from other toxic substances (§ 2) as a result of compromise between the Assembly (which had voted to permit revival for all toxic substances) and the Senate which wanted to limit revival. The Legislature ultimately limited revival based upon the existence of an identifiable group affected and the resulting ability to predict the future costs of such revival. The Legislature was apparently concerned that under a broader revival statute, the large number of unknown victims would create unpredictable risks and costs.

Defendants challenge the revival statute on equal protection and due process grounds, arguing that the statute is the result of an arbitrary and irrational political arrangement arrived at without rational guidelines of scientific certainty or public necessity. Defendants further argue that the legislative concern for limiting the number of potential claimants and costs is not related to the ostensible objective of the legislation, i.e. to allow victims of latent injuries to maintain actions. Defendants contend that the revival provision must be stricken on equal protection grounds, as an under inclusive random penalty without scientific basis, on five arbitrarily chosen substances and their manufacturers. It is contended that the prior exposure statute of limitations or the new three year discovery based provision would be more than adequate for victims of the five specified substances.

Defendant Lilly urges that generally, chemical injury claims accrue at the time of exposure (here, in utero ). Under the three year exposure based statute of limitations (tolled to the age of majority) claimants could bring suit until age 21. Lilly contends that most DES patients develop cancer by age 19, and therefore, their claims would not be time barred before becoming aware of their injuries.

Defendants also claim a violation of the due process clause, in that the statute constitutes an arbitrary deprivation of the substantive property right to rely upon the absence of claims. Defendants assert that dismissal (or the passage of the applicable time bar) gives rise to substantive property rights which as a general rule, may not be abrogated and that the exceptional circumstances to permit revival are not present (see Gallewski v. H. Hentz & Co., 301 N.Y. 164, 93 N.E.2d 620).

Based upon the impact upon what they allege are substantive or property rights, defendants urge the applicability of strict scrutiny or an intermediate standard of review rather than a rational basis examination.

As a general rule, state statutes of limitation reviving time barred actions are not violative of due process. Statutes of limitation represent a public policy statement with respect to the privilege to litigate. "[T]he history of pleas of limitations shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control" (Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628). The expiration of the applicable time period does not eliminate a cause of action but rather, suspends the court's power to grant a remedy (Hulbert v. Clark, 128 N.Y. 295, 28 N.E. 638). In other words, statutes of limitation relate to the availability of a remedy and not to the destruction of any fundamental right.

In the past, New York courts have upheld the power of the state legislature to extend or revive time barred claims. In Gallewski v. H. Hentz & Co., 301 N.Y. 164, 174, 93 N.E.2d 620, the court found that a revival statute is not necessarily void as a taking of property without due process. The court stated that "[T]he legislature may constitutionally revive a personal cause of action where the circumstances are exceptional and are such as to satisfy the court that serious injustice would result to plaintiffs not guilty of any fault if the intention of the legislature were not effected."

In McCann v. Walsh Construction Co., 282 A.D. 444, 123 N.Y.S.2d 509, aff'd, 306 N.Y. 904, 119 N.E. 596, the court found that the legislature acted within the limits of the Constitution in extending the time period within which victims of caisson disease could seek redress. The legislature sought to remedy the injustice caused to victims of a disease which in many cases did not produce symptoms until after the period for filing Workmen's Compensation claims has passed. The court found that under the circumstances, the legislature, by extending the time within which to institute a claim, was merely complying with the simple demands of justice.

A similar due process challenge was raised by manufacturers of Agent Orange regarding the constitutionality of the recent statute extending the time within which victims of dioxin could sue in New York (CPLR 214-b). There, as here, defendants challenged the law on the ground that it permitted commencement of actions already time barred under the New York statute of limitations otherwise applicable for injuries caused by toxic chemicals. In approving the proposed settlement of the Agent Orange litigation, the Court (Weinstein, J.) rejected defendants' federal and state constitutional challenges to revival of otherwise time barred claims by the New York legislature (In Re Agent Orange Product Liability Litigation, 597 F.Supp. 740 [E.D.N.Y.1984]).

Here, as in Gallewski, McCann and the Agent Orange case, the legislature, in reviving time barred causes of action, expressed the public policy of giving preference to plaintiff's privilege to litigate over defendants' protection from stale or time barred claims. The issue raised is whether there is a reasonable connection between the revival statute and the promotion of a legitimate state interest, here, health, safety and welfare (Nettleton Co. v. Diamond, 27 N.Y.2d 182, 193, 315 N.Y.S.2d 625, 264...