1982 DES Case: Dawson v. Eli Lilly & Co.


Defendants Eli Lilly and Company, Abbott Laboratories, E.R. Squibb & Sons, Inc., and Upjohn Company have moved for summary judgment and to dismiss the complaint on the basis of the statute of limitations. The undisputed facts are as follows. In 1973, when plaintiff was seventeen years old, her mother read an article in the newspaper about diethylstilbestrol (DES) and its effects on the daughters of women who took the drug during pregnancy. She then ascertained from her obstetrician that she had taken DES during her pregnancy with the plaintiff. That same day, she discussed these matters with her daughter, and about two weeks later, plaintiff was taken to a Dr. Marlow for a gynecological examination. Dr. Marlow diagnosed plaintiff’s condition as cervical adenosis. At that time, plaintiff took a pamphlet on DES from a table in the doctor’s office. Dr. Marlow also told plaintiff at the first visit that there are cases where cancer has developed from taking DES. Since that time, plaintiff has continued to visit Dr. Marlow two to four times a year for check-ups related to her adenosis and to determine whether any cancer cells have developed.

DAWSON v. ELI LILLY & CO., Leagle, 19821873543FSupp1330_11679, July 28, 1982.

Thus, although the record does not reveal directly that plaintiff was informed that her condition was or might be a result of her mother’s ingestion of DES, it is clear from the circumstances surrounding the diagnosis of her adenosis that she was aware at that time of a possible connection between her condition and DES. She was taken to the doctor precisely because her mother had discovered that she had taken DES during her pregnancy with plaintiff, she picked up DES pamphlets in the doctor’s office, and the doctor told her that cancer had been known to develop “from taking DES.” She was subsequently checked regularly for the possible development of cancer. Plaintiff admits that she knew, as early as 1973, “of the possibility of a causal nexus” between DES and her condition, but states that she was not told of a “clear and certain causal relationship” at that time.”  …

… “Plaintiff makes two arguments in opposition to defendants’ motions.

  1. First, she did not know of a “clear and certain causal relationship” between DES and her condition. Defendants’ representatives have testified as recently as 1981 in various depositions to the effect that there is no certain relationship between ingestion of DES by pregnant women and adenosis or malformation of the sexual organs of their offspring, or that their companies take no position on the question. Plaintiff argues that if defendants’ experts in 1981 did not know of a causal link, it cannot be decided as a matter of law that she should have known of the causal link before June 5, 1978.
  2. Secondly, plaintiff argues that District of Columbia law requires not only a knowledge of the injury and its cause, but also knowledge of some wrongful conduct on the part of the defendant, to begin the running of the statute of limitations. Plaintiff has submitted an affidavit to the effect that she was unaware until November, 1980 that at the time of her gestational period, DES was marketed without adequate testing as to its safety nor efficacy (to prevent abortion) .” …

… “In general, discovery rules are adopted to avoid the unfairness of interpreting a statute of limitations to accrue when the injury first occurs, if at that time plaintiff does not have enough information to bring suit. This policy is applied to different factual situations as they arise. Where the injury is latent, the claim is held not to accrue until the plaintiff discovers the injury. Where causation of an injury is unknown, the action accrues when both the injury and its cause have been (or should have been) discovered. Where the injury and causation are known, but not that there has been any wrongdoing, the action is held to accrue when the plaintiff discovered, or by due diligence should have discovered, the wrongdoing. We believe the District of Columbia courts would follow this progression. While a few courts have forthrightly rejected some or all of these interpretations of the discovery rule, most have at least phrased their discovery rules in a manner that could allow such interpretations should an appropriate case arise. In the majority of cases, injury, causation and fault are apparent at the time of the occurrence. Cases in which one or more of these elements are not evident simultaneously are rare, and become more so as more of these elements are discovered separately. Therefore it is not surprising that many jurisdictions, including the District of Columbia, have not reached the precise issue before us. ” ...

… read the full paper DAWSON v. ELI LILLY & CO., on Leagle.

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