Renfroe v. Eli Lilly & Co.

• Decision Date: 30 June 1982
• Docket Number: No. 78-856C(3).,78-856C(3).
• Citation: 541 F. Supp. 805
• Parties: Paula RENFROE, and Marsha Smith, Plaintiffs, v. ELI LILLY & COMPANY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

541 F. Supp. 805

Paula RENFROE, and Marsha Smith, Plaintiffs, v. ELI LILLY & COMPANY, et al., Defendants.

No. 78-856C(3).

United States District Court, E. D. Missouri, E. D.

June 30, 1982.

Shook, Hardy & Bacon, Lane D. Bauer, Harvey L. Kaplan, Kansas City, Mo., for Eli Lilly defendant.

Stephen H. Ringkamp, Hullverson, Hullverson & Frank, Inc., James E. Hullverson, St. Louis, Mo., for plaintiffs.

MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court on the joint motion of certain of the defendants for summary judgment in defendants' favor on all counts of plaintiffs' complaint. The motion has now been adopted by all defendants except Comark, Inc. As grounds for the motion, defendants claim that plaintiffs' causes of action are barred by the California and/or Ohio statutes of limitations made applicable to plaintiffs' claims by the Missouri borrowing statute, § 516.190, R.S.Mo.1978. The borrowing statute reads as follows:

Whenever a cause of action has been fully barred by the laws of the state, territory, or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any courts of this state.

Defendants argue that the word "originated" as used in the borrowing statute, has been construed to mean "accrued"; and that under the standards for accrual of a cause of action set forth in § 516.100, R.S. Mo.1978, plaintiff Renfroe's causes of action accrued in California by the fall of 1976 and plaintiff Smith's causes of action accrued in Ohio or California by April, 1976. Thus, defendants contend, plaintiffs' claims are barred by the applicable one-year California statute of limitations and/or the applicable two-year Ohio statute of limitations. Defendants apparently concede that the applicable Missouri limitations period would be five years. Section 516.120, R.S.Mo.1978.

Plaintiffs argue in response to the motion that the plaintiffs' causes of action "originated" in Missouri, and hence that the borrowing statute does not apply. Plaintiffs also argue, alternatively, that the applicable California statute of limitations is six years, and that the running of the statute(s) of limitations was tolled while the defendants were absent from the states of California and Ohio.

The complaint in this action was filed August 17, 1978. The complaint alleges that plaintiff Renfroe developed adenocarcinoma of the cervix, and that plaintiff Smith developed squamous cell carcinoma of the cervix, as a result of their in utero exposure to certain drugs (hereinafter collectively referred to as DES) manufactured by the defendants. Plaintiffs have allegedly undergone surgery to remove the cancer. The complaint states claims against the defendants for negligence per se, negligence, breach of express and implied warranty, fraud and deceit, strict liability, and conspiracy to defraud and deceive. Plaintiffs each seek recovery for pain, for medical expenses, lost wages, and the loss of ability to bear children, as well as punitive damages.

This case being a diversity action, the Court must apply the limitations rule which would be applied by a Missouri court. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Missouri regards limitations issues as procedural issues, governed by Missouri law. Keaton v. Crayton, 326 F.Supp. 1155, 1157-58 (W.D. Mo.1969). The Missouri borrowing statute adopts a foreign state's statute of limitations for a cause of action which "originated" in the foreign state, if the foreign statute provides a shorter period than the otherwise applicable Missouri statute of limitations. Farthing v. Sams, 296 Mo. 442, 247 S.W. 111 (1922).

The initial question, then, is where the plaintiffs' claims "originated." Defendants, as noted above, argue that "originated," as used in § 516.190, means "accrued." Plaintiffs argue that "originated" refers to the place where defendants' tortious conduct last directly affected the plaintiffs, that is, plaintiffs' place of birth.

Missouri's use of the word "originated" in its borrowing statute is apparently unique; the great majority of borrowing statutes of general applicability refer to the place where the cause of action "arose," and several others refer to the state where the cause of action "accrued." Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U.Fla.L.Rev. 33, 79-80 app. (1962) (hereinafter Ester). As far as this Court's research has disclosed, Missouri cases construing the borrowing statute have for the most part used the words "arose", "accrued" and "originate" interchangeably, without discussion. The only law review article which has been written about the borrowing statute, which was enacted in 1899, described its effect in this manner: "the Missouri courts now hold that the time limited by the law of the place where the cause of action arose is the law which governs the right of the plaintiff to maintain his action in Missouri." Haley, When is a Foreign Cause of Action Barred by Limitations in Missouri?, 21 St. Louis L.Rev. 43, 45 (1935) (emphasis added) (footnote omitted).

The Court believes that, at least with reference to claims premised on personal injury, such as plaintiffs' claims, § 516.190 must be construed in the same manner as borrowing statutes which refer to the place where the cause of action "arose" or "accrued." The inquiry under any such statute is simply the place where the cause of action came into being, or, if the various elements of a cause of action did not develop simultaneously, where the final element of the cause of action came into being. Of course, in the vast majority of cases premised on personal injury, the elements of the plaintiff's cause of action have developed simultaneously, and hence the need for detailed analysis to determine the place where the cause of action originated or came into being, has been very limited. See, e.g., Ester, supra, stating that "the courts unanimously hold that a cause of action sounding in tort arises in the jurisdiction where the last act necessary to establish liability occurred," and equating that location with the place "in which injury is received." 15 U.Fla.L.Rev. at 47-48. Cf. McIndoo v. Burnett, 494 F.2d 1311, 1313 (8th Cir. 1974) (stating, in an automobile accident case, that "the plain meaning of the Missouri borrowing statute is that where the tort takes place in a foreign jurisdiction Missouri will adopt" the foreign limitations period.) Although conflict of law principles could be used to determine where a cause of action arises or originates, see Comment, Choice of Law: Statutes of Limitation in the Multistate Products Liability Case, 48 Tul.L.Rev. 1130 (1974), Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 21-26 (3d Cir. 1966) (dissenting opinion), cert. denied, 387 U.S. 930, 87 S.Ct. 2053, 18 L.Ed.2d 992 (1967), the Missouri cases cited by defendants amply demonstrate that Missouri courts eschew such an approach, holding instead that the borrowing statute embodies a particular choice of law directive which the courts are not free to modify. See, e.g., Trzecki v. Gruenewald, 532 S.W.2d 209 (Mo.1976) (en banc); Girth v. Beaty Grocery Co., 407 S.W.2d 881 (Mo.1966).

Having established that the relevant inquiry is simply when (and thus where), see Mack Trucks, supra, (majority opinion), the plaintiffs' causes of action came into being, or arose, or accrued, or originated, the Court must now determine how Missouri cases have defined that point in cases of the nature of the instant case. The Court agrees with defendants that this inquiry must be undertaken in light of § 516.100, R.S.Mo.1978, which provides in part that a "cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained." Section 516.100 applies, by its terms, to a range of sections including the borrowing statute. The Court observes that the inquiry as to when plaintiffs' causes of action accrued is the same as the inquiry as to when the Missouri statute of limitations, if applicable, would have begun to run. 51 Am.Jur.2d, Limitation of Actions § 107 (1970); Jepson v. Stubbs, 555 S.W.2d 307 (Mo.1977) (en banc).

One of the early Missouri cases dealing with a situation comparable to that alleged in the case at bar was Clohesy v. Century Electric Co., 142 S.W.2d 780 (Mo.App.1940). Clohesy had worked for the defendant as a grinder from 1922 to 1926, and allegedly contracted pneumoconiosis as a result of breathing metal dust during that time; plaintiff alleged however that the illness was not ascertainable until 1934, the year in which he filed his complaint. Defendant claimed on appeal that the plaintiff's claims were barred by the five-year statute of limitations, but the appellate court, reviewing the record in light of what is now § 516.100, found that although the plaintiff had suffered sinus trouble as early at 1925 and was treated for a bronchial condition in 1929, there was enough evidence in the record that reasonable minds could differ as to whether plaintiff had developed pneumoconiosis, and if so, if the pneumoconiosis was ascertainable more than five years before he filed suit. The Court noted the testimony of plaintiff's medical expert that the pneumoconiosis did not show up in x-rays taken during the years 1929 through 1933.

Clohesy was relied on in a comparable situation in Krug v. Sterling Drug, Inc., 416 S.W.2d 143 (Mo.1967). Plaintiff in Krug had been prescribed a drug for an arthritic condition. She began to take the drug in 1953; in 1955, she noticed a blurring of her eyesight, and by 1957, her vision was sometimes "fuzzy." However, she continued to take the drug by prescription until 1961 or...