Jolly v. Eli Lilly & Co., S.F. 25045

• Court: United States State Supreme Court (California)
• Writing for the Court: PANELLI; LUCAS
• Citation: 245 Cal.Rptr. 658,44 Cal.3d 1103,751 P.2d 923
• Parties: , 751 P.2d 923, 56 USLW 2611, Prod.Liab.Rep. (CCH) P 11,745 Christine M. JOLLY, Plaintiff and Appellant, v. ELI LILLY & CO. et al., Defendants and Respondents.
• Decision Date: 07 April 1988
• Docket Number: S.F. 25045

Page 658

245 Cal.Rptr. 658 44 Cal.3d 1103, 751 P.2d 923, 56 USLW 2611, Prod.Liab.Rep. (CCH) P 11,745 Christine M. JOLLY, Plaintiff and Appellant,
v.
ELI LILLY & CO. et al., Defendants and Respondents. S.F. 25045. Supreme Court of California,
In Bank. April 7, 1988.

[44 Cal.3d 1106]

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[751 P.2d 925] Patricia J. Van Horn, Crist, Griffiths, Bryant, Schulz, Biorn & Clohan, Palo Alto, for plaintiff and appellant.

Robert H. Sulnick, Los Angeles, as amicus curiae on behalf of plaintiff and appellant.

Richard J. Heafey, Peter W. Davis, James C. Martin, Crosby, Heafey, Roach & May, Oakland, John D. O'Connor, Patrick J. Hogan, Tarkington, O'Connor & O'Neill, San Francisco, Kevin J. Dunne, Michael F. Healy, Bruce A. Edwards, Frederick D. Baker, Sedgwick, Detert, Moran & Arnold, San Francisco.

Richard T. Davis, Jr., Robert D. Phillips, Jr., Robert H. Roe, Adams, Duque & Hazeltine, Richard J. Siggins, William S. Ginsburg, Gudmundson, Siggins & Stone, San Francisco, Robert L. Dickson, Ralph A. Campillo, Robert L. Kaufman, Roxanne M. Wilson, Joseph R. Zamora, Haight, [44 Cal.3d 1107] Dickson, Brown & Bonesteel, Santa Monica, G. Edward Fitzgerald, C. Eric McCurdy, Gibson, Dunn & Crutcher, Los Angeles, for defendants and respondents.

PANELLI, Justice.

This case presents the following questions: whether a plaintiff, in a suit for personal injury caused by a defective drug, who is unaware of any specific facts establishing wrongful conduct on the part of any drug manufacturer, may delay bringing an action until she discovers such facts; whether a claim, otherwise barred by the statute of limitations, can be revived due to our decision in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, in which we held that a plaintiff who is unable to identify the particular manufacturer of a fungible drug that caused injury to her can state a claim by joining defendants who manufactured a substantial percentage of the market share of the allegedly defective drug; and whether the filing of the class action in Sindell, supra, tolled the statute of limitations for members of the putative class until the class was denied certification. We answer these questions in the negative and so conclude that the suit is time-barred.

I. FACTS

Plaintiff Jolly was born in 1951. In 1972, she first learned that while she was in utero her mother had ingested the synthetic drug estrogen diethylstilbestrol (DES) for the prevention of miscarriage. Plaintiff was told in 1972 that DES daughters could suffer injuries. Therefore, she went to a DES clinic at the UCLA Medical Center

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for a check-up. She was diagnosed as having adenosis, a precancerous condition that required careful monitoring. In 1976, she had an abnormal pap smear and underwent a dilation and curettage, a surgical procedure to remove abnormal tissue. In 1978, plaintiff underwent a complete hysterectomy and a partial vaginectomy in order to remove malignancy. As of 1972, plaintiff was aware, or at least suspected, that her condition was a result of her mother's ingestion of DES during pregnancy.

Starting in 1972, plaintiff attempted to discover the manufacturer of the DES ingested by her mother. Efforts were increased in 1976 and 1978 when plaintiff's condition became acute. Unfortunately, the doctor who [44 Cal.3d 1108] prescribed the drug had died, ¹ and plaintiff was unable to locate his records. Although the dispensing pharmacist did remember filling the DES prescription, he did not recall or have records pertaining[751 P.2d 926] to the specific brand used. This was not unusual since DES was a fungible drug, that is, hundreds of pharmaceutical companies made DES from a single agreed formula. The hospital where plaintiff was born was of no assistance because plaintiff's mother did not use DES while there.

At least as of 1978, plaintiff was aware of the pendency of one or more DES suits alleging that DES manufacturers were liable to those injured due to their failure to test or failure to warn. Although she believed that DES had caused her injuries and that those who marketed DES had wrongfully marketed a defective product, there is no conclusive evidence in the record to show that a reasonable investigation by plaintiff in 1978 would have disclosed specific proven facts that would establish any wrongful conduct on the part of a DES drug manufacturer. In fact, even today defendants allege that DES is not defective, but for purposes of summary judgment have admitted the allegation of some defectiveness.

Further, plaintiff believed that she had no cause of action if she could not identify the particular manufacturer of the drug her mother took during pregnancy. Because her efforts to identify that manufacturer were unsuccessful, plaintiff did not file suit.

In March 1980, we decided Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, and held that if a plaintiff could not identify the precise drug manufacturer of the ingested DES, she could state a cause of action against the DES manufacturers of a substantial percentage of the market share of the drug. Defendants would be liable, assuming the remaining material allegations in the complaint were proven, unless they could disprove their involvement. Almost one year after Sindell, plaintiff Jolly brought this action.

Defendants moved for summary judgment, asserting that the action was barred by Code of Civil Procedure section 340, subdivision (3), ² setting forth a one-year statute of limitations period for an action "for injury ... caused by the wrongful act or neglect of another." Although conceding the applicability of the one-year statutory period, plaintiff denied that the suit was time-barred. She asserted that the statute did not commence until she [44 Cal.3d 1109] learned of the Sindell decision, because only then did she realize that she would be able to successfully bring her claim.

Plaintiff maintained that Sindell created a new cause of action by redefining "causation." Prior to Sindell, she claimed, only the specific manufacturer of the pills that were ingested was deemed to have "caused" the injury. After Sindell, according to plaintiff, it was the generic drug DES that "caused" the harm, and therefore all DES manufacturers were tortfeasors.

The trial court granted defendants' motion and entered judgment in their favor. The Court of Appeal reversed, relying on its earlier decision in Kensinger v. Abbott

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Laboratories (1985) 171 Cal.App.3d 376, 217 Cal.Rptr. 313. The Court of Appeal did not address Jolly's main argument, that the statute could not begin to run until after our decision in Sindell, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, except by way of a footnote declining to adopt her position. ³ We granted defendants Eli Lilly and Company, Rexall Drug Company, and E.R. Squibb and Sons, Inc.'s subsequent petition for review.

II. THE KENSINGER DECISION

As previously noted, both sides agree that the one-year limitations period of section 340, subdivision (3) applies to this case. Both sides also agree that the common law rule, that an action accrues on the date of injury (Lambert v. McKenzie (1901) 135 Cal. 100, 103, 67 P. 6), applies only as modified by the "discovery rule." The discovery rule provides that the accrual date [751 P.2d 927] of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. ⁴ (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d 93, 99, 132 Cal.Rptr. 657, 553 P.2d 1129.) A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her. ( Id. at p. 101, 132 Cal.Rptr. 657, 553 P.2d 1129.) The parties differ as to what constitutes sufficient knowledge to start the statute running.

The Court of Appeal applied Kensinger, supra, 171 Cal.App.3d 376, 217 Cal.Rptr. 313, a factually similar case, and found that it was a question of fact as to whether [44 Cal.3d 1110] the statute of limitations began to run more than one year before plaintiff Jolly filed her complaint. The Kensinger court acknowledged the well established rule that ignorance of the legal significance of known facts or the identity of the defendant would not delay the running of the statute--only ignorance of one or more "critical facts" could have that effect. (171 Cal.App.3d at p. 383, 217 Cal.Rptr. 313.)

However, the key point in Kensinger was its determination that one "critical fact" was knowledge of some wrongful conduct. Specifically, the court held that a plaintiff may have "no knowledge of facts indicating wrongdoing by a particular defendant. In such a situation, litigation might be premature for lack of knowledge of any factual basis for imputing fault to a manufacturer rather than ignorance of supportive legal theories.... [p ] Knowledge of the occurrence and origin of harm cannot necessarily be equated with knowledge of the factual basis for a legal remedy...." (171 Cal.App.3d at pp. 383-384, 217 Cal.Rptr. 313; emphasis added.) Accordingly, the Kensinger court held that the statutory clock did not begin to tick until the plaintiff knew or reasonably should have known of the facts constituting wrongful conduct, as well as the fact of her injury and its relation to DES. ⁵ The

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Court of Appeal, applying Kensinger, held that it could not be said that "as a matter of law" Jolly was or should have been aware of facts establishing wrongdoing, e.g., "either failure to test or failure to warn," until within one year of the date she filed suit.

The rule proposed in Kensinger goes too far. ⁶ Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. ⁷ As we said in Sanchez and reiterated in Gutierrez, the limitations period begins once the plaintiff " '...