1982 DES Case: O’Brien v. Eli Lilly & Co.


The question for decision in this appeal from a summary judgment in favor of four defendant pharmaceutical manufacturers in a diversity action is whether the district court properly applied the Pennsylvania “discovery rule,” which modifies the personal injury statute of limitations. The district court determined that, if she had exercised due diligence, appellant Ann O’Brien reasonably could have discovered in February 1976 that her mother had taken Diethylstilbestrol (commonly known as Stilbestrol or DES) during her 1956 pregnancy and that the drug arguably caused appellant’s subsequent cancer. She did not file her complaint until December 31, 1979; accordingly, the district court concluded that the suit was barred by the two-year statute of limitations. Appellant contends that whether she possessed the knowledge necessary in 1976 to start the running of the statute was a jury question. Conceding that this is a close case, we nevertheless find no genuine issue of material fact and affirm the grant of summary judgment.” …

O’BRIEN v. ELI LILLY & CO., Leagle, 19811372668F2d704_11255, January 21, 1982.

… “Having been a trial judge for more than thirteen years, I am keenly aware of the inordinate pressure which trial judges have in trying to dispose of their heavy caseloads efficiently and fairly. But summary judgments were never intended to decrease basic fairness for litigants in order to increase a court’s pace in the disposition of cases. From my view Ann O’Brien has already suffered the tragedy of cancer; her plight should not have been compounded by depriving her of the opportunity to present her case to the jury. I dissent because there is a genuine disputed and material issue of fact as to whether she was sufficiently diligent in ascertaining the etiology of her cancer. Under the facts of this case, a rational jury could find that there was no lack of diligence when a teenager accepted as true the statements of her mother and surgeon.”…

… read the full paper O’BRIEN v. ELI LILLY & CO., on Leagle.

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