Moll v. Abbott Laboratories

Decision Date21 September 1993
Docket Number93310 and 91561,Nos. 3-4,Docket Nos. 93309,M,s. 3-4
Parties, Prod.Liab.Rep. (CCH) P 13,692 Jean MOLL and Michael Moll, Plaintiffs-Appellees, v. ABBOTT LABORATORIES, Altana, Inc., Baxter Healthcare Corp., Blue Line Chemical, Burroughs Wellcome Co., Carroll Chemical, Central Pharmaceutical, Chromalloy Pharmaceutical, Cooper Laboratory Consolidated Midland Corp., Eli Lilly & Co, Haack Laboratories, and Hall Laboratories, Inc., Defendants-Appellees, and E.R. Squibb & Sons, Defendant-Appellant. Jean MOLL and Michael Moll, Plaintiffs-Appellees, v. ABBOTT LABORATORIES, et al., Defendants, and Eli Lilly & Co., Defendant-Appellant. Judith HARRINGTON, Plaintiff-Appellant, v. ABBOTT LABORATORIES, Approved Pharmaceuticals, Altana, Inc., Baxter Healthcare Corp., Blue Line Chemical Co., William H. Rorer, Inc., Central Pharmaceutical Co., Consolidated Midland Corp., Cooper Laboratory, Eli Lilly & Co., Haack Laboratories, Inc., J.F. Hartz Co., Key Pharmaceuticals, Kirkman Pharmacal Co., Kremers-Urban, Inc., S.E. Massengill Co., Merck, Sharpe & Dohme, Nelson Baker & Co., Inc., Rexall Drug Co., Schering White Co., E.R. Squibb & Sons, Inc., Testagar & Co., Inc., Burroughs-Wellcome Co., Defendants-Appellees. Calendararch Term.
CourtMichigan Supreme Court


In these pharmaceutical products liability actions, we are asked to determine when a cause of action for latent toxic injuries accrues for statute of limitations purposes. We hold that the discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action. Thus, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff's action is barred by the statute of limitations is a question of law, to be determined by the trial judge.

A Harrington v. Abbott Laboratories

Plaintiff Judith Harrington 1 was born on August 5, 1955, in Detroit, Michigan. Her mother, Theresa Harrington, ingested DES 2 during her pregnancy with Judith. Judith Harrington first became aware of her exposure to DES in utero in the latter part of 1974. At this time, Dr. Bryce, the Harrington family physician, informed Theresa Harrington by letter of her ingestion of DES and the associated reproductive problems found in DES daughters. The letter suggested that Judith Harrington consult a physician specializing in DES problems.

On the advice of Dr. Bryce, Judith visited Dr. Vakhariya on January 2, 1975, who informed her that she had a mosaic on her cervix, a precancerous condition. Although a biopsy revealed that the tissue was benign, Dr. Vakhariya recommended that Judith have semiannual checkups to monitor her condition.

In 1983, Judith Harrington consulted Dr. Laham because of her inability to conceive a child. Dr. Laham informed Judith of her mosaic cervix and advised her that this condition could be caused by DES exposure. 3 The doctor also opined that Judith's difficulty in conceiving could be the result of DES exposure. Dr. Laham eventually referred Judith to a reproductive specialist, Dr. Stern, for an extensive examination of her uterus.

Dr. Stern performed a hysterosalpingogram (HSG) 4 on December 27, 1983. On the same day, Dr. Stern apprised Judith of the test results, informing her that she had a bicornuate or T-shaped uterus, a condition that can result from DES exposure, and that could be the cause of her difficulty in conceiving.

In the early part of 1984, Judith became pregnant. Dr. Laham treated the pregnancy as high-risk because of her exposure to DES. The doctor placed various restrictions on Judith and her activities. Unfortunately, the precautions proved futile, and Judith miscarried in April of 1984. She learned from Dr. Laham that her uterine deformities caused her miscarriage. Believing that she would experience the same problem with future pregnancies, Dr. Laham advised her not to attempt another pregnancy.

On December 30, 1986, Judith, along with fourteen other named plaintiffs, 5 filed suit against the defendants, manufacturers of DES. 6 Defendant Eli Lilly & Company, on behalf of all of the defendants, motioned for summary disposition pursuant to MCR 2.116(C)(7), claiming that the three-year products liability, statute of limitations 7 barred the plaintiff's suit. Following oral arguments and based upon the pleadings interrogatory responses, and the sworn deposition of Judith Harrington, Wayne Circuit Court Judge James Mies granted the defendants' motion. Judge Mies concluded, as a matter of law, that Judith knew or should have known of her cause of action when Dr. Stern diagnosed her bicornuate or T-shaped uterus on December 27, 1983. The Court of Appeals affirmed in an unpublished per curiam opinion. We granted leave to appeal on November 2, 1992. 441 Mich. 878. We affirm.

B Moll v. Abbott Laboratories

Plaintiff Jean Moll 8 became aware of the irregularities in her cervix during a gynecological examination by Dr. Ulmer in April of 1975. Because of the condition of her cervix, Dr. Ulmer asked Jean if she had had an abortion.

In August of 1976, Jean visited another gynecologist, Dr. O'Campo, who informed her that she had a hood over her cervix. Dr. O'Campo indicated that Jean's condition could have resulted from exposure to DES in utero. Dr. O'Campo requested the medical records of Jean's mother.

Jean's mother, Shirley Petroff, recalled being hospitalized for a month during her pregnancy with Jean. She also recalled that her doctor, Dr. Brownell, had administered medication to prevent her unborn child from aborting. Mrs. Petroff, however, could not recall the name of the prescribed drug. Attempting to ascertain what drug Dr. Brownell had administered, Jean and her mother contacted Dr. Brownell's office to inquire about the needed medical records. Dr. Brownell's receptionist informed Mrs. Petroff that the records had been sent elsewhere. Further attempts to locate the records were unsuccessful.

In 1977, Dr. O'Campo advised Jean that her cervix "didn't look good" and that the problem "might be due to the DES that [her] mother had taken...." Following the doctor's recommendation, Jean submitted to another test, a colposcopy, which took place in January of 1978. Following the test, the doctor told Jean that "the results ... were ... fine" and "there was no cause for real concern at that time," but that she had an "incompetent cervix" and this type of problem could have been caused by exposure to DES. The doctor also told the plaintiff that exposure to DES could lead to cancer.

The plaintiff attempted to conceive a child in 1978. After approximately a year, she grew concerned over her inability to conceive and consulted Dr. O'Campo. In February of 1979, Dr. O'Campo told the plaintiff that the hood over her cervix could be preventing conception. Furthermore, the doctor informed Jean that her exposure to DES in utero possibly could have caused the hood on her cervix.

In May of 1980, Dr. O'Campo suggested that the Molls undergo a series of fertility tests because of their continued inability to conceive. These tests were never performed, however, because Jean did not consult Dr. O'Campo again until 1985. Jean was once again informed that the hood on her cervix was the probable cause of her infertility. The plaintiff also learned at the time that her incompetent cervix could cause difficulties in carrying a child to term. 9

Jean Moll filed suit against the defendants, manufacturers of DES, on December 30, 1986. 10 On July 8, 1988, Judge Mies granted Eli Lilly's 11 motion for summary judgment pursuant to MCR 2.116(C)(10), because of the plaintiff's inability to prove that her mother ingested DES, a requirement for alternative liability. 12 The court delayed entry of the order, however, until September 9, 1988, to allow Jean additional time to locate Mrs. Petroff's medical records. With the aid of a court order, Jean located Mrs. Petroff's medical records at the Highland Park City Clerk's office. The records confirmed that Dr. Brownell had administered DES to Mrs. Petroff.

In December of 1988, the defendant Eli Lilly 13 moved for summary judgment pursuant to MCR 2.116(C)(7). The defendant claimed that Jean Moll's suit was barred by the applicable three-year statute of limitations 14 because she knew of a possible cause of action for more than three years before filing suit. On the basis of the pleadings, interrogatory responses, and the sworn deposition testimony of plaintiff Moll and her mother, Mrs. Petroff, Judge Mies denied the defendant's motion, finding that the plaintiff's claim did not accrue until she had proof that her mother ingested DES.

The Court of Appeals affirmed the denial of Eli Lilly's motion for summary disposition on different grounds. It rejected the trial court's contention that a cause of action does not accrue until the plaintiff could prove each element of her claim. The panel also rejected the line of cases holding that a plaintiff's cause of action...

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