Pine v. Eli Lilly & Co.

• Decision Date: 14 May 1985
• Citation: 201 N.J.Super. 186,492 A.2d 1079
• Parties: Alfred PINE, Plaintiff-Respondent, v. ELI LILLY & COMPANY, Winthrop Laboratories and Winthrop Products Co., Abbott Laboratories, Merck, Sharp & Dohme, the Upjohn Company, Blue Line Chemical Co., American Pharmaceutical Co., Inc., and E.R. Squibb & Sons, Inc., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 186

201 N.J.Super. 186

492 A.2d 1079

Alfred PINE, Plaintiff-Respondent, v. ELI LILLY & COMPANY, Winthrop Laboratories and Winthrop

Products Co., Abbott Laboratories, Merck, Sharp & Dohme, the

Upjohn Company, Blue Line Chemical Co., American

Pharmaceutical Co., Inc., and E.R. Squibb & Sons, Inc.,

Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued April 3, 1985.

Decided May 14, 1985.

John L. McGoldrick, Newark, for appellant Eli Lilly & Co. (McCarter & English, Newark, attorneys; John L. McGoldrick, Newark, of counsel; John F. Brenner and Keith E. Lynott, Newark, on the brief).

Marc S. Klein, Newark, for appellant E.R. Squibb & Sons, Inc. (Sills, Beck, Cummis, Zuckerman, Radin & Tischman, Newark, attorneys; Barry M. Epstein, Saddle Brook, of counsel; Marc S. Klein, Newark, on the brief).

Attorneys for all other appellants joined in the briefs filed by appellants Eli Lilly & Co. and E.R. Squibb & Sons, Inc.

Jean W. Billings, Newark, for respondent (Carney & Wilson, Newark, attorneys; James F. Carney, Newark, of counsel and on the brief with Jean W. Billings, Newark.)

Before Judges MATTHEWS, FURMAN and HAVEY.

The opinion of the court was delivered by

HAVEY, J.A.D.

The question raised by this appeal, on leave granted, ¹ is whether New Jersey, as the forum State, should apply its statute of limitations and "discovery rule" to a tort action when the underlying wrongful act occurred in the state of New York, while plaintiff was a New York domiciliary, but who, after the New York statute of limitations had run, established a New Jersey domicile and thereafter instituted this suit.

On appeal, defendant drug companies challenge the trial court's application of our statute of limitations and "discovery rule" and consequent denial of their motions for summary judgment, arguing that the trial court should have "borrowed" New York's limitations statute which would have time-barred plaintiff's action, since the "discovery rule" is not recognized in that state.

We affirm the trial court's denial of summary judgment. Accepting the legitimacy of plaintiff's assertion that he was a New Jersey domiciliary when this action was instituted, we hold that New Jersey has a sufficient state governmental interest in the compensation of its domiciliaries to apply its statute of limitations and "discovery rule." We conclude that the threshold question of plaintiff's domicile must be addressed and, accordingly, remand for that purpose.

The record before the trial court on the summary judgment motion disclosed the following facts which were accepted as true. Because of episodes of bleeding during her early pregnancy with plaintiff, plaintiff's mother was hospitalized in April 1953 and was administered the drug Diethylstilbestrol (DES). Thereafter, from time to time during her pregnancy, she ingested the drug prescribed to her by her treating physician. Plaintiff was born in September 1953 in Brooklyn, New York, and remained a Brooklyn resident while receiving his elementary and secondary education in New York City schools. He earned a degree from Vassar College in New York and a law degree from Boston College Law School. He thereafter returned to Brooklyn, resided with his mother, and commenced practicing law in Manhattan.

On August 27, 1979, after a physical examination four days earlier, plaintiff was admitted to Columbia Presbyterian Hospital and underwent surgery for testicular cancer, resulting in the removal of his right testicle. Plaintiff claims that during his hospitalization, treating physicians advised him that his condition was related to in utero exposure to DES. Upon release from the hospital, plaintiff returned home to Brooklyn and resumed his law practice in Manhattan on a limited basis in December 1979.

In March 1980, plaintiff consulted a New York law firm concerning the possibility of bringing a law suit in connection with his medical condition, and in the fall of 1980, consulted a New Jersey attorney. In December 1980, he moved to Jersey City to a multi-family apartment as a month-to-month tenant and, on July 23, 1981 filed this action against defendants, eight pharmaceutical companies ² doing business in New Jersey, which marketed DES in 1953. Plaintiff's complaint sounds in negligence, strict liability and breach of warranty, the gravamen of which is that his in utero exposure to the drug was a proximate producing cause of his testicular cancer. He seeks compensatory and punitive damages.

All parties acknowledge that plaintiff's action is time-barred under New York law. The New York statute of limitations prescribes a three-year period from the date of accrual for the commencement of a personal injury action, which is tolled until the injured party reaches the age of 18. N.Y.C.P.L.R. §§ 208, 214 (McKinney 1984). New York has no discovery rule. See Manno v. Levi, 94 A.D.2d 556, 465 N.Y.S.2d 219 (1983), aff'd 62 N.Y.2d 888, 467 N.E.2d 517, 478 N.Y.S.2d 853 (1984). Accepting as true plaintiff's factual assertion that he was advised for the first time while hospitalized in August 1979 that his testicular cancer was associated with in utero exposure to DES, plaintiff has made a prima facie showing of the application of New Jersey's discovery rule and thus his action would be timely if the New Jersey two-year limitations statute applies, since the statute would not have begun to run until that date. See Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973); Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981); Burd v. New Jersey Telephone Company, 76 N.J. 284, 386 A.2d 1310 (1978).

In denying summary judgment, the trial court, for the purposes of defendants' motions, properly accepted plaintiff's assertion as to the legitimacy of his New Jersey domicile. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75, 110 A.2d 24 (1954). Relying upon our Supreme Court's holding in Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973), it found that New Jersey's overriding and predominant governmental interest in compensating domiciliaries for injuries caused by the tortious conduct of others was alone sufficient to apply our statute of limitations and liberal "discovery rule." We agree.

Defendants argue that absence of "factual contacts" between New Jersey and the controversy, as well as our significant policy against forum shopping as expressed in Heavner, compels the "borrowing" of New York's statute of limitations, since plaintiff established a New Jersey domicile only after he had discovered that his potential claim against defendants was time-barred under New York law.

In Heavner, the court discarded the rigid common law rule that the limitations law of this State must be employed in every suit on a foreign cause of action, 63 N.J. at 140-141, 305 A.2d 412, holding that [W]hen the cause of action arises in another state, the parties are all present in and amenable to the jurisdiction of that state, New Jersey has no substantial interest in the matter, the substantive law of the foreign state is to be applied, and its limitation period has expired at the time suit is commenced here, New Jersey will hold the suit barred. In essence, we will "borrow" the limitations law of the foreign state. We presently restrict our conclusion to the factual pattern identical with or akin to that in the case before us, for there may well be situations involving significant interests of this state where it would be inequitable or unjust to apply the concept we here espouse. [63 N.J. at 141, 305 A.2d 412].

The operative facts in Heavner were that a husband and wife sued on personal injury claims arising out of injuries sustained when their truck tire blew out causing the truck to strike an abutment in the state of North Carolina. Plaintiffs were, at the time of the accident and institution of their suit, North Carolina residents. They purchased the tire in North Carolina from Uniroyal, a New Jersey corporation.

The methodology by which the court in Heavner concluded that New Jersey was a disinterested forum is not laid out. The court did not, for example, place particular emphasis on any one of the five expressed criteria, nor did it state what "substantial interest in the matter" New Jersey might have that would dictate application of our statute. The thrust of the court's holding was that, from the narrow fact pattern before it, New Jersey had insufficient factual contacts with both the controversy and parties to apply New Jersey law. 63 N.J. at 134-135 n. 3, 305 A.2d 412.

We glean from Heavner that the underlying analysis of whether New Jersey should apply its limitations statute or that of the foreign state is essentially akin to the "governmental interest" test in resolving choice of substantive law issues. See Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32-33 (3d Cir.1975); Allen v. Volkswagen of America, Inc., 555 F.2d 361, 362 (3d Cir.1977); accord Scoles and Hay, Conflict of Laws §§ 3.11, 3.12 (1982). This approach requires a two-step analysis in resolving the choice of law issue: a determination first of the governmental policies, as expressed by the laws of each related jurisdiction, and second of the factual contacts the controversy and parties have with each related jurisdiction. See Deemer v. Silk City Textile Mach. Co., 193 N.J.Super. 643, 649, 475 A.2d 648 (App.Div.1984). See also Restatement (Second) of Conflicts of Law §§ 6, 145, 146 (1971).

This analysis does not count up the factual contacts with the respective states, as defendants would have us do, and make a quantitative determination of which state law should apply. Instead, "the qualitative nature of contacts is considered so that only contacts which are likely to promote valid state policies are considered relevant." Henry v. Richardson-Merrell, Inc., supra, 508 F.2d at 32; see also Mullane v. Stavola, 101 N.J.Super. 184, 188-189, 243 A.2d 842 (Law Div.1968).

New Jersey has a clearly...