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

ABSTRACT

The complaint in this action was filed August 17, 1978. The complaint alleges that plaintiff Renfroe developed adenocarcinoma of the cervix, and that plaintiff Smith developed squamous cell carcinoma of the cervix, as a result of their in utero exposure to certain drugs (hereinafter collectively referred to as DES) manufactured by the defendants. Plaintiffs have allegedly undergone surgery to remove the cancer. The complaint states claims against the defendants for negligence per se, negligence, breach of express and implied warranty, fraud and deceit, strict liability, and conspiracy to defraud and deceive. Plaintiffs each seek recovery for pain, for medical expenses, lost wages, and the loss of ability to bear children, as well as punitive damages. …

RENFROE v. ELI LILLY & CO., Leagle, decision/19821346541FSupp805_11230, June 30, 1982.

… Hence, it is evident that plaintiffs’ claims did not originate or arise at least until plaintiffs’ physical injuries reasonably could have been discovered. (This requirement in itself forecloses the plaintiffs’ theory of the time of accrual of their claims, because, as the facts discussed below make clear, the fact that plaintiffs would develop cancer as a result of their exposure to DES was not reasonably discoverable until long after their births.)

However, in a case such as this, it could be most unfair to hold that a claim accrues as soon as physical injury manifests itself, because the likely cause of the injury might be totally unknown at that time. Plaintiffs have alleged in their complaint that “in approximately 1972, medical science discovered that teenage girls whose mothers had taken defendants’ drugs, were developing [cancer] and that this condition was a direct result of their mothers having taken defendants’ drugs.” Complaint, Thus, women with in utero exposure to DES who developed cancer prior to “approximately 1972” would have had no reason at that time to believe that their injury had a legally actionable cause. The defendants apparently concede that accrual of a cause of action bears some relation to discovery of the cause of injury, because they concede that plaintiff Renfroe’s claims may have accrued as late as 1976, when plaintiff Renfroe formed the opinion that the cancer for which she had undergone surgery in 1971 had been caused by her exposure to DES.

The Court’s research has not disclosed any Missouri case directly discussing this point. However, it may be inferred from Krug v. Sterling Drug, supra, that Missouri courts would not bar a cause of action for slowly developing injuries caused by a drug because the plaintiff learned too late the cause of her injuries, especially where plaintiff learned of that cause as soon as her doctor did. Moreover, in the analogous context of occupational disease cases brought under the Workmen’s Compensation Act, it has been held that the statute of limitations did not begin to run until the plaintiff was aware that he had a compensable disability in the sense of a disability caused by an occupational disease which resulted from his ordinary work activities. Myers v. Rival Manufacturing Co. …

… In accordance with all of the foregoing authorities, especially, of course, the Missouri cases, the Court believes that Missouri courts would hold that the present plaintiffs’ claims did not arise or accrue until

  1. the plaintiffs suffered reasonably discoverable injuries
  2. and the plaintiffs knewor, in the exercise of reasonable diligence should have known, whichever first occurred, that their injuries were caused by DES exposure.

Hence, their claims originated when (and where) the later of those two factors developed. ” …

… continue reading RENFROE v. ELI LILLY & CO. on Leagle.

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