Mathis v. Eli Lilly and Co.

• Decision Date: 07 October 1983
• Docket Number: No. 81-5803,81-5803
• Parties: Jennifer Kay Brumit MATHIS and her husband, Barry L. Mathis, Plaintiffs- Appellants, v. ELI LILLY AND COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 134

719 F.2d 134

Jennifer Kay Brumit MATHIS and her husband, Barry L. Mathis, Plaintiffs- Appellants, v. ELI LILLY AND COMPANY, Defendant-Appellee.

No. 81-5803.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 19, 1982.

Decided Oct. 7, 1983.

Samuel B. Miller, II (argued), Weller, Miller, Carrier & Miller, Johnson City, Tenn., for plaintiffs-appellants.

J. Paul Coleman, Herndon, Coleman, Brading & McKee, Johnson City, Tenn., Timothy A. Pratt (argued), Shook, Hardy & Bacon, Kansas City, Mo., for defendant-appellee.

Before LIVELY, Chief Judge, and MARTIN and WELLFORD, Circuit Judges.

WELLFORD, Circuit Judge.

This case was filed in a Tennessee state court by Mrs. Jennifer Mathis, joined in the suit by her husband, Barry Mathis, seeking damages for personal injury due to her exposure to diethylstilbestrol (DES), a drug developed by Eli Lilly as a synthetic hormone to prevent miscarriages. It is alleged that Mrs. Mathis' mother took DES in May, 1955, while pregnant without knowledge that the drug DES may cause cancer in her offspring. Mrs. Mathis alleges that she did not know she had developed cancer (of the cervix) until July, 1980, some twenty-five years after the product was purchased and used by her mother during her pregnancy. Defendant-appellee Lilly filed a motion for summary judgment in the case, relying upon provisions of Tenn.Code Ann. Sec. 29-28-103, which was originally enacted in 1978, and amended in 1979 by the addition of Section (b). The statute provides in its entirety:

29-28-103. Limitation of actions--Exception.--(a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by Secs. 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.

(b) The foregoing limitation of actions shall not apply to any action resulting from exposure to asbestos.

The trial court granted appellee's motion for summary judgment and appellants appeal. They argue that the statute violates Article 1, Section 20, and Article 1, Section 8, of the Tennessee Constitution, as well as the Fourteenth Amendment to the United States Constitution.

While the Tennessee statute in question imposes generally a ten-year limit on bringing actions against a manufacturer or seller such as Lilly, dating from the time that its product was "first purchased for use," there are exceptions written in the law to this general limitation. The first exception may lessen the period of repose if the "anticipated life of the product" is less than nine years, because the action would then have to be brought within a year after the expiration of the anticipated life. The next exception applies in the case of injury to minors to make it clear that this statute does not abrogate the usual special consideration given to minors to extend the period in which they may sue to one year after attaining the age of majority. ¹ Thus, it may have been possible for appellant, under this statute, if valid as written, to have sued at any time within nineteen years after her birth if an injury had allegedly occurred within that time, instead of ten years after May, 1955, when the DES was purchased for use.

A third exception to the general ten-year limit was adopted by the 1979 amendment to the Act in question by the addition of section (b), which excepts "any action resulting from exposure to asbestos."

In his ruling granting appellee's motion, the trial judge noted that "plaintiffs set forth their constitutional theories in a 6 page brief." ² He cited only two Tennessee state court decisions and six federal court cases in his order granting judgment for Lilly, which is the basis for this appeal. Appellants' brief cites only one Tennessee case (different from the two mentioned in the opinion and order appealed from) and three federal cases, and no other authorities. If this Court were to decide the case based on the precedents cited by the trial court and by appellants, the decision may not have been as detailed, but we must look beyond these cited authorities in deciding the difficult issues involved.

While we have found it necessary to look beyond the authority cited by the parties, we have not considered, and do not decide, issues which the parties did not raise and brief. Thus, we intimate no opinion on the constitutionality of the challenged statutes on other grounds, not raised and not discussed herein. ³

CLAIM OF UNCONSTITUTIONALITY UNDER THE FOURTEENTH AMENDMENT

Appellants cite two cases in their argument that the Tennessee law violates their due process rights and "public policy." The first of these cases, Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), involved coverage under the Federal Employers' Liability Act (FELA) and the Boiler Inspection Act. ⁴ These consequences, the court held, could not be "reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of invasion of legal rights."

In its discussion of this issue in a workman's benefit statute, the Supreme Court cited only two cases, one interpreting the California Workmen's Compensation Act, ⁵ the other interpreting the Missouri statute of limitations at issue in Urie. ⁶ The federal statutes involved, giving a remedy beyond that provided at common law, required this liberal construction to prevent application of a statutory bar when plaintiff would have found it difficult to establish exactly when "notice of invasions of legal rights" occurred during the course of his long railroad employment. The statute and decisions involved workmen's compensation benefits and emphasized liberality of construction for benefit of employees who suffered injury or illness in connection with occupational hazards.

The argument made by appellants has been presented to a federal court in Tennessee after the enactment of Tenn.Code Ann. Sec. 29-28-103, formerly Tenn.Code Ann. Sec. 23-3703, in Buckner v. GAF Corp., 495 F.Supp. 351 (E.D.Tenn.1979), an asbestos case.

The Buckners contend that the application of the unamended TCA Sec. 23-3703 in a manner so as to bar their claims would be unconstitutional because such an interpretation of the Act denies them any opportunity to pursue a remedy for the injuries they allegedly sustained. They argue that they should be given "a reasonable time" from the effective date of the Act in which to pursue their "existing cause of action."

Id. at 353. Judge Frank Wilson considered the argument carefully in relation to an earlier decision made in his court on a similar issue, but involving a different Tennessee statute of limitations, and cited a number of Tennessee cases. He concluded that the Tennessee ten-year bar applied to this 1979 filing where the products involved, allegedly causing asbestosis, had been sold for use no later than 1965. ⁷ Judge Wilson's decision was unanimously affirmed by this Court in an unpublished order, No. 80-5329, May 11, 1981, joined in by Chief Judge George Edwards and Judge Bailey Brown, a former federal district judge in Tennessee for many years. The Court noted that "... the date the action accrued controls which statute of limitation is applicable."

Buckner should be compared, however, with Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459 (6th Cir.1982), wherein Judge Gilbert Merritt, another Judge on this Court from Tennessee, authored an opinion which reached a different result as to the effect of the 1979 asbestos amendment, holding that the Tennessee Constitution, Art. 1, Sec. 20, would not bar Murphree's claim under the circumstances of that case. Murphree had been exposed to Raybestos-Manhattan's product more than ten years before February, 1979, when he discovered he had cancer of the lining of the chest resulting from occupational exposure to asbestos-containing products. Judge Merritt concluded that Tennessee appellate courts had not spoken directly on the issue, but predicted the Tennessee Supreme Court would abrogate the "old vested rights doctrine" as applied to statutes of limitation in Ford Motor Co. v. Moulton ⁸ in view of the 1979 amendment doing away with the ten-year bar as to asbestos exposure claims. This Court in Murphree overruled the district court's decision which was consistent with Buckner, although it seems clear that other grounds were available for reversal. ⁹ Without reference to Buckner, decided the prior year, this Court cast doubt on the applicability of the ten-year bar of Tenn.Code Ann. Sec. 29-28-103 in a particular situation where an asbestos-related injury was involved. We conclude, however, that Murphree is not determinative on the particular issue before us.

The United States Supreme Court has addressed the issue as to whether a statute may constitutionally limit a recovery regardless of liability in event of nuclear accident in Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). The purpose of the statute challenged was to develop economically and feasibly private power through nuclear means. The court deferred to Congress' judgment in balancing the interests of affected groups, the power companies and the environmentalists, concluding the act to be constitutional because not "demonstrably arbitrary or irrational." 438 U.S. at 84, 98 S.Ct. at 2636. In...