Mizell v. Eli Lilly & Co.

• Citation: 526 F. Supp. 589
• Decision Date: 25 November 1981
• Docket Number: 80-1092-1.,Civ. A. No. 80-1091-1
• Court: U.S. District Court — District of South Carolina
• Parties: Stacey M. MIZELL, Plaintiff, v. ELI LILLY & COMPANY, a foreign corporation; Rexall Drug Company, a foreign corporation; E. R. Squibb & Sons, Inc., a foreign corporation; the Upjohn Company, a foreign corporation; Abbott Laboratories, Inc., a foreign corporation; and Carnrick Laboratories, a foreign corporation; jointly and severally, Defendants. Carl E. MIZELL, Plaintiff, v. ELI LILLY & COMPANY, a foreign corporation; Rexall Drug Company, a foreign corporation; E. R. Squibb & Sons, Inc., a foreign corporation; the Upjohn Company, a foreign corporation; Abbott Laboratories, Inc., a foreign corporation; and Carnrick Laboratories, a foreign corporation; jointly and severally, Defendants.

526 F. Supp. 589

Stacey M. MIZELL, Plaintiff, v. ELI LILLY & COMPANY, a foreign corporation; Rexall Drug Company, a foreign corporation; E. R. Squibb & Sons, Inc., a foreign corporation; the Upjohn Company, a foreign corporation; Abbott Laboratories, Inc., a foreign corporation; and Carnrick Laboratories, a foreign corporation; jointly and severally, Defendants.

Carl E. MIZELL, Plaintiff, v. ELI LILLY & COMPANY, a foreign corporation; Rexall Drug Company, a foreign corporation; E. R. Squibb & Sons, Inc., a foreign corporation; the Upjohn Company, a foreign corporation; Abbott Laboratories, Inc., a foreign corporation; and Carnrick Laboratories, a foreign corporation; jointly and severally, Defendants.

Civ. A. Nos. 80-1091-1, 80-1092-1.

United States District Court, D. South Carolina, Charleston Division.

November 25, 1981.

Harvey M. Spar and Edmund Robinson, Shimel, Ackerman, Theos & Spar, Charleston, S. C., and Thomas H. Bleakley, Detroit, Mich., for plaintiffs.

William L. Pope, Robinson, McFadden, Moore & Pope, P. A., Columbia, S. C., and Blair C. Fensterstock, Dewey, Ballantine, Bushly, Palmer & Wood, New York City, for defendant, Eli Lilly & Co. Glenn Bowers and James W. Orr, Nexsen, Pruet, Jacobs & Pollard, Columbia, S. C., for defendant, Rexall Drug Co.

John L. Choate, Nelson, Mullins, Grier & Scarborough, Columbia, S. C., for defendant, E. R. Squibb & Sons, Inc.

Michael T. Cole and Ann C. Osborne, Wise, Cole & Pearlman, P. A., Charleston, S. C., for defendant, The Upjohn Co.

William W. Watkins, Sr., Turner, Padget, Graham & Laney, Columbia, S. C., for defendant, Abbott Laboratories, Inc.

J. Rutledge Young, Jr., Young, Clement, Rivers & Tisdale, Charleston, S. C., for defendant, Carnrick Laboratories.

ORDER

HAWKINS, District Judge.

This order issues upon two pre-trial motions heard September 3, 1981. Defendants made a joint motion to dismiss, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that this court lacks jurisdiction over the subject matter of these actions. The motion was filed on February 27, 1981.

On February 17, 1981, plaintiff Stacey M. Mizell made six motions to compel further answers to interrogatories pursuant to Rule 37(a) of the Federal Rules of Civil Procedure.

I. FACTS OF THE CASE

These actions arise out of the alleged use of the drug diethylstilbestrol (hereinafter DES) by Virginia McGuire while pregnant with Stacey McGuire Mizell in 1954. DES is a synthetic non-steroidal estrogen which was prescribed for use by pregnant women who had a history of miscarriages. At the time that she took this medication in 1954, Virginia McGuire was a resident of Santa Clara, California.

The plaintiffs, Carl E. Mizell and Stacey McGuire Mizell, were married in 1975 in California.

In 1976, twenty years after her birth, plaintiff Stacey Mizell allegedly learned that she had developed cancer. The alleged cancerous condition of Stacey Mizell was first diagnosed in February 1976 by Dr. William Singleton at Travis Air Force Base in California. On June 9, 1980, the plaintiffs filed this action in federal district court in Charleston, South Carolina.

The plaintiffs have failed to identify the manufacturer of the particular brand of DES taken by Mrs. McGuire.¹ Rather, the action is brought against the six named pharmaceutical corporations which allegedly manufactured and distributed DES in California during this period.

II. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

In determining whether the court has subject matter jurisdiction in this diversity action, it is established in this circuit that this court should look to the jurisdictional statutes of the State of South Carolina. See, Proctor & Schwartz, Inc. v. Rollins, 634 F.2d 738 (4th Cir. 1980). Defendants argue that section 15-5-150 of the South Carolina Code (1976), the "door closing statute", is controlling in these actions. Without question, the failure of the plaintiffs to a lawsuit to come within the provisions of the "door closing statute", when the defendants are foreign corporations, deprives the court of subject matter jurisdiction. See, Rollins, 634 F.2d at 740; Cox v. Lunsford, 272 S.C. 527, 252 S.E.2d 918 (1979). The "door closing statute" provides as follows:

An action against a corporation created by or under the laws of any other state, government or country may be brought in the circuit court:

(1) By any resident of this State for any cause of action; or

(2) By a plaintiff not a resident of this State when the cause of action shall have arisen or the subject of this action shall be situated within this State.

S.C. Code § 15-5-150 (1976).

All of the defendants in this case are corporations created under the laws of some state other than South Carolina. For Stacey Mizell and Carl Mizell to maintain these actions, they must either be found to be residents of South Carolina pursuant to section 15-5-150(1) or this cause of action must have arisen in South Carolina pursuant to section 15-5-150(2). As stated in the complaints, Stacey Mizell's mother, Mrs. Virginia McGuire, allegedly took the medication in question in 1954 when she was a resident of Santa Clara, California. Stacey Mizell's condition, which is the subject matter of this action, was first diagnosed in 1976 when, according to the complaints, she also was a resident of California. It is evident that these causes of action arose in the State of California.² Subsection two of the statute is clearly inapplicable since the causes of action did not arise in South Carolina. Therefore, the plaintiffs may maintain these actions only if this court is persuaded that the plaintiffs were residents of South Carolina within the meaning of section 15-5-150(1) at the time of the commencement of these lawsuits.

The appropriate interpretation to be given to the term "resident" in a particular case depends upon whether the term is intended to mean "actual residence" or "legal residence." "Actual residence" connotes something less than domicile and merely requires actual habitation within the state: intention is irrelevant. "Legal residence" is defined as the equivalent of "domicile." See, e. g., Phillips v. South Carolina Tax Commission, 195 S.C. 472, 12 S.E.2d 13 (1940). It is widely recognized throughout the United States that the two principal elements of domicile, physical presence in a locale and the intention to remain there indefinitely, must coexist before a new domicile is established in a particular location. "Domicile means the place where a person has his true, fixed and permanent home and principal establishment, to which he has, whenever he is absent, an intention of returning." Gasque v. Gasque, 246 S.C. 423, 143 S.E.2d 811 (1965).

Although the South Carolina Supreme Court has construed section 15-5-150 to relate only to residence and not to citizenship, see, Cummings v. Wingo, 31 S.C. 427, 10 S.E. 107 (1889), the term "residence" has never been defined by that court in the context of the "door closing statute." The defendants have put forth some persuasive arguments for the proposition that the term "resident," as used in this jurisdictional statute, should be construed as the equivalent of "domicile." However, given the facts of this case, it is not necessary for this court to make a determination as to the correct interpretation of the term "resident" as used in section 15-5-150.

The court relies on the following facts in finding that both plaintiffs maintained actual physical presence in South Carolina and that both possessed an intent to remain indefinitely in South Carolina.

1. In May 1974, Carl E. Mizell was assigned to the submarine DANIEL BOONE, which was homeported in Charleston, South Carolina. He stayed with that ship until September 1975. While apparently still in Charleston, on June 18, 1975, Carl Mizell re-enlisted in the Navy and requested that Charleston, South Carolina, remain his duty station. However, he was assigned to California.

2. In 1977, Carl Mizell once again requested a Charleston, South Carolina assignment and, this time, was stationed in Charleston as of May 1977.

3. Carl and Stacey Mizell, who were married in 1975, bought a house off-base, in Ladson, South Carolina, soon after they arrived in South Carolina.

4. Stacey Mizell worked for the South Carolina Vocational Rehabilitation Department as a caseworker.

5. The couple registered their cars in South Carolina, and Stacey Mizell obtained a South Carolina driver's license.

6. Carl and Stacey Mizell became members of the Yeamans Park Presbyterian Church in Charleston, South Carolina.

7. According to the deposition of Stacey Mizell, the couple made the decision to move to Boise, Idaho, based solely on Stacey Mizell's medical decision.

8. Both plaintiffs testified in their depositions that they had intended to make South Carolina their permanent residence.

In Ferrara v. Ibach, 285 F.Supp. 1017 (D.S.C.1968), Judge Hemphill made the following statement concerning one who is drafted into military service: "In the case of a serviceman, there is a presumption that he retains the domicile which he had at the time of being drafted and the evidence to sustain a change of domicile to the place where he may be stationed must be `clear and unequivocal.'" Id. at 1019. Judge Hemphill then found that the unusual circumstances of the defendant ex-military doctor placed him squarely within the exception to the normal serviceman rule. Id. This rule was also recognized by another South Carolina district court in Bowman v. DuBose, 267 F.Supp. 312 (D.S.C.1967). In Bowman, the court recognized that "a serviceman such as the plaintiff was at the time he moved to Sumter, ... retains his domicile as of the date of his enlistment `unless he indicates an intent to abandon such original domicile and adopt a new one.'" (citations omitted). Id. at 313.

While the Bowman court found that the party therein did not fit within the exception, that finding was...