Trahan v. ER Squibb & Sons, Inc.

• Decision Date: 02 August 1983
• Docket Number: No. 81-3554.,81-3554.
• Citation: 567 F. Supp. 505
• Court: U.S. District Court — Middle District of Tennessee
• Parties: Susan Denise TRAHAN, Plaintiff, v. E.R. SQUIBB & SONS, INC., Defendant.

567 F. Supp. 505

Susan Denise TRAHAN, Plaintiff, v. E.R. SQUIBB & SONS, INC., Defendant.

No. 81-3554.

United States District Court, M.D. Tennessee, Nashville Division.

August 2, 1983.

Michael Mondelli, James Mondelli, Nashville, Tenn., for plaintiff.

Ray H. Moseley, K. Stephen Powers, Chattanooga, Tenn., for defendant.

MEMORANDUM

WISEMAN, District Judge.

I.

Susan Denise Trahan has filed suit against E.R. Squibb and Sons, Inc., for injuries occurring allegedly as the result of her in utero exposure to Diethylstilbestrol (DES) manufactured by the defendant E.R. Squibb and Sons, Inc. The plaintiff originally claimed a right to recovery under theories of express and implied warranties, but now agrees that any recovery must be based on negligence or strict liability. Squibb has moved for summary judgment on the strict liability cause of action, claiming that the substantive law of North Carolina controls and that North Carolina's highest court has expressly refused to adopt that doctrine. Trahan argues that Tennessee law, which recognizes strict liability, should apply.

II.

The plaintiff's mother was apparently a domiciliary and resident of North Carolina during the entire time she was pregnant with Ms. Trahan. Her doctor prescribed treatment with DES as a means of preventing spontaneous abortion. That treatment and the plaintiff's birth occurred in North Carolina. At the time of her birth no one diagnosed the plaintiff as having a DES related injury. The record is unclear as to whether the lack of such a diagnosis was because the condition had not yet developed, because the condition was not medically discoverable at that time even though it had already developed, or merely because the doctor failed to detect a condition which was discoverable.

Some years after her birth, the plaintiff moved to Tennessee where she became pregnant. Dr. Horace T. Lavely examined the plaintiff in Tennessee on January 15, 1976, before she became pregnant and again on April 10, 1979, when she was three months pregnant. At both of these examinations he found no abnormality of her cervix. (See Deposition of Dr. Horace T. Lavely, Jr., p. 7, lines 16-17 and p. 8, lines 7-12). Ms. Trahan's incompetent cervix was not diagnosed until she was 26 weeks pregnant. That diagnosis was made by Dr. Marcia Montgomery during an examination in Tennessee which occurred while the plaintiff was a resident and domiciliary of Tennessee. Ms. Trahan while in Tennessee gave birth and suffered the damages of which she complains.

III.

If Tennessee substantive law applies, the plaintiff may maintain an action in strict liability because Tennessee has adopted that theory of recovery. Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (1967). If North Carolina substantive law applies, Ms. Trahan is barred from bringing an action based on strict liability as that jurisdiction does not recognize such a cause of action. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980).

Federal courts in diversity actions must use the law of the forum to determine a choice of law question. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Tennessee has remained steadfast in its adherence to what has been termed the "old rule" of lex loci delictus in determining what law is applicable to a tort action and to actions sounding in tort such as strict liability. Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972) (upholding viability of lex loci rule), Babcock v. Maple Leaf, Inc., 424 F.Supp. 428 (E.D. Tenn.1976) (noting that lex loci also applied to actions based on strict liability). The Tennessee Supreme Court expressly has rejected the "interest analysis" or "dominant contacts" rule for choice of law questions. Winters, 481 S.W.2d at 758. Great American Insurance Co. v. Hartford Accident and Indemnity Co., 519 S.W.2d 579, 580 (1975).

Generally, lex loci delictus requires that the substantive law of the place where the tort occurred be applied. See Winters v. Maxey, 481 S.W.2d at 756. For cases in which the act or omission objected to and the resulting injury to the plaintiff occur in different states, however, application of the doctrine becomes more complicated. If the tortious act and resulting injury occur in different jurisdictions, the law in Tennessee, as in most jurisdictions, is that the law of the state where injury was suffered controls — not the law of the state where the wrongful act took place. Koehler v. Cummings, 380 F.Supp. 1294, 1305 (M.D.Tenn.1971). See also Restatement (First) of Conflicts § 377. In Koehler, a tortious interference with contract case, the court found that the place of the wrong for purposes of application of lex loci was "the state where the last event necessary to make an actor liable for an alleged tort takes place." 380 F.Supp. at 1305. The Court is urged to determine, as controlling, in which state the "last event necessary" occurred to make Squibb liable for its alleged wrongdoing.

IV.

The defendant argues that the "last event" occurred when the plaintiff's mother ingested DES during her pregnancy in North Carolina. This, according to the defendant, is "the place where the harmful force took effect upon the body." Restatement (First) of Conflicts § 377. The defendant, however, alludes to no evidence that the alleged improper development of the plaintiff's cervix occurred immediately upon her mother's ingestion of the drug. The assumption that this effect took place immediately ignores the way in which DES operates on the development of a fetus. The drug may have many effects on an offspring of a mother treated with DES which do not appear until much later in life. This Court takes judicial notice that cervical cancer may be related to DES exposure in utero, but not manifest itself until much later in life. Clearly the rights of a plaintiff who developed cervical cancer in Tennessee, after being a resident of Tennessee for many years, would not be controlled by the law of North Carolina where she was exposed in utero to DES. The "last event" necessary to create liability is the development of the condition, not the exposure to a drug with latent detrimental effects.

That is not to say that an incompetent cervix develops in the same way as cervical cancer. The incompetent cervix may have been extant before Ms. Trahan moved to Tennessee. The defendant, however, has not produced any evidence that the condition did develop in North Carolina.

Plaintiff, on the other hand, has referred to evidence which might be construed as indicating the condition developed in Tennessee after Ms. Trahan became pregnant. In the deposition of Dr. Horace T. Lavely, Jr., he indicates that in his gynecological examination of Ms. Trahan conducted on January 15, 1976 — after she had moved to Tennessee — he determined that "everything was perfectly normal." (Deposition of Dr. Lavely, 8, lines 7-12). Dr. Lavely next examined Ms. Trahan April 10, 1979, at the beginning of her pregnancy and did not find any evidence of an abnormality. (Deposition of Dr. Lavely, 17, lines 4-15). The incompetent cervix was not diagnosed until Ms. Trahan was 26 weeks pregnant (Deposition of Dr. Marcia Montgomery, page 20, lines 3-16). The plaintiff would have this Court read these depositions as indicating the doctor's belief that the incompetent cervix did not develop until the plaintiff's pregnancy. That, however, is something of a strained interpretation. More likely, the doctors were simply indicating that the condition was not discovered until she became 26 weeks pregnant. Their depositions, then, are not determinative of when the incompetent cervix developed.

Discovery of an injury is generally not considered to be the "last act" necessary for liability which, under the lex loci approach, determines which jurisdiction's law should be applied to an action sounding in tort. The lex loci doctrine is derived from the vested right approach which holds that a plaintiff's cause of action "owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law." Winters v. Maxey, 481 S.W.2d at 756.

If, however, as in this case, there is no clear evidence when the injury actually occurred, state court decisions concerning the effect of a delayed discovery on the accrual of a cause of action for statute of limitations purposes provides guidance as to the public policy of Tennessee.

In the recent case of Ameraccount Club, Inc. v. Hill, 617 S.W.2d 876 (Tenn.1981), the court determined that, for purposes of deciding when a one year statute of limitations started to run, a cause of action accrued when the plaintiff discovered or reasonably should have discovered an injury caused by the defendant's negligence. At issue in Ameraccount was the timeliness of a malpractice action brought against several attorneys for failing to properly search U.S. Patent Office records and for failing to follow proper filing procedures. The action was brought more than one year from the time the defendant, by its president's own testimony, discovered the defendant's negligence, but within one year of the Patent Office's final denial of their application. The lower courts had granted the defendant's motions for summary judgment on the grounds that the action was instituted more than one year after the action had accrued and was thus barred by T.C.A. § 28-304 (now § 28-3-104). The Tennessee Supreme Court in Ameraccount, holding that a cause of action...