1988 DES Case: Brown v. Eli Lilly & Co.

Abstract

The defendant has moved for summary judgment on the ground that Nebraska’s ten-year statute of repose for products liability cases bars this action by Julie Brown against Eli Lilly and Company (Lilly) arising out of injuries allegedly caused by the drug diethylstilbestrol (DES). The undisputed facts are that Brown’s mother purchased and ingested DES in 1960, that the injuries she allegedly suffered as a result were discovered in 1983, and that she filed the present suit in 1987. Brown argues that the statute of repose is unconstitutional

BROWN v. ELI LILLY & CO., Leagle, 19881547690FSupp857_11394, August 5, 1988.

Lilly moved for permission to submit a reply brief, a copy of which it delivered to the court. The motion shall be granted, as Lilly must have an opportunity to respond to Brown’s defense that the statute of repose is unconstitutional. Brown opposed the motion, and requested that she be permitted to submit another brief if Lilly received permission to submit its reply brief. There presently is no motion to that effect, and I think it unnecessary for another brief to be submitted:

The challenged statute provides, in relevant part:

  • All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.
  • Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.
  • Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to August 30, 1981.

Brown contends that the statute of repose violates the open courts provision of the Nebraska Constitution. …

… Brown also argues, however, that § 25-224 violates the equal protection clause of the United States Constitution because it creates an exception for victims of injuries allegedly caused by exposure to asbestos who, she contends, are similarly situated with DES victims. …

…continue reading the full paper BROWN v. ELI LILLY & CO., on Leagle.

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