1981 DES Case: Tate v. Eli Lilly & Co.

This is a diversity case in which plaintiff seeks to recover damages for personal injuries allegedly resulting from her in utero exposure to the drug diethylstilbestrol, commonly known as DES. Defendant Merck & Co., Inc., has filed a Rule 12 motion to dismiss the complaint. It maintains that the ten-year “cap” on products liability cases contained in section 3 of the Tennessee Products Liability Act of 1978 [the Act], codified at T.C.A. § 29-28-103 (1980), bars plaintiff’s right of action.

TATE v. ELI LILLY & CO., Leagle, 19811570522FSupp1048_11436, September 18, 1981.

Plaintiff argues that the ten-year cap is inapplicable because her complaint alleges an injury that she sustained as a minor, and thus, in the words of the statute, she had “a period of one (1) year after attaining the age of majority” to bring the action, a condition that she satisfied. Plaintiff filed this lawsuit on December 24, 1980, six days before her nineteenth birthday on December 30, 1980. The Court holds that the statute creates an exception for causes of action based upon injuries to minors, and these may be brought within a period of one year after attaining majority, without regard to the generally applicable limitations contained in subsection of T.C.A. § 29-28-103. Accordingly, defendant’s motion is denied.

The statute, in relevant part, provides as follows:

29-28-103. Limitation of actions — Exception.
Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions, it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.

The crux of defendant’s argument is that the last clause, “whichever occurs sooner,” manifests a legislative intent to preserve the cause of action of a minor only if it accrues within ten years from the purchase of the product at issue. Under defendant’s interpretation (as presented in its March 18, 1981, brief), a minor would have until his nineteenth birthday to bring a products liability action even if the ten years had run, so long as his injury was discovered within ten years of the date of purchase.

Plaintiff maintains, in essence, that the exception carved out for minors is absolute, so that any person with a right of action accruing at any time during infancy could recover so long as suit was filed before his or her nineteenth birthday, without regard to the accrual date. …

… In summary, the Court holds that T.C.A. § 29-28-103 subsection preserves accrued products liability rights of action of minors until they reach majority, after which time they have one year to bring an action. This holding follows from the Court’s conclusion that the last three words of subsection are a nullity. “

… read the full paper TATE v. LILLY & CO. on Leagle.

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