Renfroe v. Eli Lilly & Co.
| Decision Date | 30 September 1982 |
| Docket Number | Nos. 81-2275,s. 81-2275 |
| Citation | 686 F.2d 642 |
| Parties | Paula RENFROE and Marsha Smith, Appellants, Cross/Appellees, v. ELI LILLY & COMPANY; Rexall Drug Company; E. R. Squibb & Sons, Inc.; The Upjohn Company; Blue Line Chemical Company; Reed and Carnrick Pharmaceuticals; Abbott Laboratories; Carnrick Laboratories, Division of W. Carnrick Co.; Comark, Inc.; Kremers-Urban Co.; McNeil Laboratories, Inc.; Merck & Company, Inc.; Rowell Laboratories, Appellees, Cross/Appellants. Paul RENFROE and Marsha Smith, Appellants, Cross/Appellees, v. ELI LILLY & COMPANY; Rexall Drug Company; E. R. Squibb & Sons, Inc.; The Upjohn Company, The Blue Line Chemical Company, Appellee, Cross/Appellant, Reed and Carnrick Pharmaceuticals; Abbott Laboratories; Carnrick Laboratories; Kremers-Urban Company; McNeil Lab; Merck & Co., Inc., Rowell Laboratories, Inc., Cross/Appellant. Paula RENFROE and Marsha Smith, Cross/Appellees, v. ELI LILLY & COMPANY; Rexall Drug Company; E. R. Squibb & Sons, Inc.; The Upjohn Company; Abbott Laboratories, Cross/Appellants. The Blue Line Chemical Company; Reed and Carnrick Pharmaceuticals; Carnrick Laboratories; Rowell Laboratories, McNeil Laboratories, Inc.; Merck & Co., Inc., Cross/Appellants. Paula RENFROE and Marsha Smith, Cross/Appellees, v. ELI LILLY & COMPANY; Rexall Drug Company; E. R. Squibb & Sons, Inc.; The Upjohn Company; The Blue Line Chemical Company; Reed and Carnrick Pharmaceuticals; Abbott Laboratories, Carnrick Laboratories; Comark, Inc., Cross/Appellants. Kremers-Urban Company; McNeil Laboratories, Inc.; Merck & Co., Inc.; Rowell Laboratories, Paula RENFROE and Marsha Smith, Cross/Appellees, v. ELI LILLY & COMPANY; Rexall Drug Company; E. R. Squibb & Sons, Inc.; The Upjohn Company; The Blue Line Chemical Company; Abbott Laboratories; Carnrick Laboratories; Comark, Inc.; McNeil Laboratories, Inc.; Merck & Co., Inc.; Rowell Laboratories, Reed and Carnrick Pharmaceuticals and Kremers-Urban Company, Cross/Appellants. to 81-2279. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Hullverson, Hullverson & Frank, Inc. by James E. Hullverson, Sr., Stephen H. Ringkamp, St. Louis, Mo., and Belli & Choulos by John E. Kalin, San Francisco, Cal., for appellants/cross-appellees.
Kortenhof & Ely, Joseph M. Kortenhof, George F. Kosta, Amelung, Wulff & Willenbrock, Robert A. Wulff, St. Louis, Mo., for appellees/cross-appellants, The Blue Line Group.
Harvey L. Kaplan, Vivian W. Wiberg, Laura D. Stith, Shook, Hardy & Bacon, Kansas City, Mo., for appellees/cross-appellants Eli Lilly and Co., Rexall Drug Co., E. R. Squibb & Sons, Inc., The Upjohn Co., Abbott Laboratories, McNeil Lab, Inc. and Merck & Co.
Before BRIGHT, Circuit Judge, HENLEY, * Senior Circuit Judge, and McMILLIAN, Circuit Judge.
The plaintiffs, Paula Renfroe and Marsha Smith, brought this action in federal district court in Missouri to recover damages allegedly sustained as a result of their in utero exposure to diethylstilbestrol (DES). All but one of the defendant drug companies joined in a motion for summary judgment, contending that the plaintiffs' causes of action were barred by the applicable statutes of limitations. The district court 1 denied the motion for summary judgment on Renfroe's claims and partially granted the motion for summary judgment on Smith's claims. We affirm.
Paula Renfroe was born on February 14, 1954, in Independence, Missouri. Renfroe's mother took Stilbestrol, a marketed version of DES, while pregnant with Paula. The Renfroe family continued to reside in Missouri until 1960, after which they moved twice, eventually settling in California in 1969. In 1971, doctors at a public clinic in California informed Paula Renfroe that she had a small growth on her cervix and advised her to seek further medical attention. Subsequent visits to another physician led to a diagnosis of adenocarcinoma of the cervix for which doctors performed a radical hysterectomy. Renfroe v. Eli Lilly & Co., 541 F.Supp. 805 at 810-811 (E.D.Mo., 1982). During this time, Renfroe's physician informed her that there seemed to be a relationship between her cancer and her mother's ingestion of DES. Id. at 811.
In early 1973, Renfroe moved from California to Missouri, where she resided until the end of the year. She then moved to the State of Washington. Near the end of 1975, Renfroe moved back to California, where, in the fall of 1976, she read an article documenting the link between DES and cancer. Soon thereafter, Renfroe contacted an attorney.
Marsha Smith was born in St. Louis, Missouri, on August 25, 1952. Smith's mother took Stilbestrol during her pregnancy at her obstetrician's suggestion. The Smith family continued to reside in Missouri until 1963, when they moved, eventually settling in California in 1966. Renfroe v. Eli Lilly & Co., supra, at 812.
Marsha Smith moved to Ohio in 1972. While living there in 1974, her physician performed the cervical biopsy that first disclosed her cancer. Id. Within twenty-four hours, she returned to California where her parents still resided. A short time later, doctors in California confirmed the diagnosis of squamous cell carcinoma, for which they performed a radical hysterectomy and lymph node dissection. After the surgery, her attending physicians informed her that they believed her cancer was related to her mother's ingestion of DES. Id. at 812. Approximately a year later, Smith responded to a notice requesting DES mothers and daughters to call a certain telephone number. The woman answering the telephone advised Smith to contact an attorney, which she did.
After retaining legal counsel, Renfroe and Smith filed a complaint on August 17, 1978. The complaint alleged that Renfroe and Smith had each developed cancer as a result of in utero exposure to DES. They asserted claims against certain drug companies that manufactured or distributed DES in Missouri between 1947 and 1964, 2 and alleged causes of action based on negligence per se, negligence, breach of express and implied warranty, fraud and deceit, strict liability, and conspiracy to defraud and deceive. Renfroe and Smith each sought recovery for pain and suffering, medical expenses, lost wages, loss of the ability to bear children, and punitive damages.
After filing answers and conducting discovery, the drug companies, with the exception of Comark, Inc., jointly moved for summary judgment on the ground that the plaintiffs' actions were barred by the applicable statutes of limitations. Specifically, the drug companies claimed that the California one-year, or Ohio two-year statute of limitations, incorporated by the Missouri borrowing statute, barred the plaintiffs' causes of action.
The district court denied the defendants' motion on Renfroe's claim stating that her cause of action might have originated in Missouri, making the Missouri borrowing statute inapplicable. It granted summary judgment to some of the defendants 3 on Smith's claims on the ground that her cause of action against them was fully barred whether her action originated in Ohio or California. It denied summary judgment to the other defendants (the Blue Line Group) 4 on Smith's claims, however, because her action was not barred as to them if her cause of action originated in Ohio.
The district court denied all motions for reconsideration. Pursuant to the parties' request, however, it then certified its order for immediate appeal pursuant to 28 U.S.C. § 1292(b). All parties petitioned this court for review, and we granted permission to appeal.
In these appeals, Renfroe and Smith contend that the district court should not have applied the borrowing statute to their actions. According to the Missouri borrowing statute,
(w)henever 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 of the courts of this state. (Mo.Ann.Stat. § 516.190 (Vernon Supp. 1982).)
The district court recognized the need to determine where their respective causes of action originated before determining whether the plaintiffs' actions were barred. Noting that Missouri courts have used the terms "originate," "arise," and "accrue" interchangeably when interpreting the borrowing statute, compare Bowling v. S. S. Kresge Co., 431 S.W.2d 191, 193 (Mo.1968) (originate) with Garrett v. American Family Mutual Insurance Co., 520 S.W.2d 102, 119 (Mo.Ct.App.1974) (arise) and Schnabel v. Taft Broadcasting Co., 525 S.W.2d 819, 826 (Mo.Ct.App.1975) (accrue), the district court held that a cause of action originates where the final element of the cause of action occurs. It then rejected the plaintiffs' suggestion that it adopt choice of law principles to determine where their causes of action originated. Renfroe v. Eli Lilly & Co., supra, 541 F.Supp. at 807-808. Instead, using the general limitations section 5 as a guide, it concluded that the plaintiffs' causes of action accrued when, and originated where, their damage was sustained and capable of ascertainment. Id. at 807-808. The district court went on to determine that Renfroe's cause of action originated in either Missouri or California, depending on where she should have discovered that DES caused her cancer. Id. at 811-812. It also determined that Smith's cause of action originated in either Ohio or California, depending on where she actually discovered that her mother's ingestion of DES may have caused her cancer. Id. at 812. 6
Renfroe and Smith maintain that the borrowing statute does not apply because their causes of action originated in Missouri where all of the defendants' tortious activity occurred. Specifically, they point to the distribution, sale, purchase, and their...
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McLinn, Matter of
...Substantial deference is accorded district court's interpretation of local law in absence of controlling state precedent.--Renfroe v. Eli Lilly & Co., 686 F.2d 642. C.A.Mo. 1980. Where issues in federal court are governed by state law, opinion of local federal district judge interpreting su......
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