1983 DES Case: Fleishman v. Eli Lilly & Co.

Plaintiff was born on March 29, 1955. Almost exactly 23 years later, in March, 1978, she discovered that she had cervical and vaginal cancer, which required radical surgery, including a complete hysterectomy. In January and February, 1980, plaintiff commenced suit against the four defendant drug companies, setting forth seven causes of action. According to the complaint, the cancer was caused by a drug named Diethylstilbestrol (hereinafter DES), a drug previously manufactured by defendants, which was ingested by plaintiff’s mother when the latter was pregnant with plaintiff. The sole issue on this appeal is whether plaintiff’s suit was brought within the period provided by the applicable Statute of Limitations. …

FLEISHMAN, Leagle, 198392196AD2d825_1453, August 1, 1983.

The drug was not administered to plaintiff but to her mother. While it might be argued that the mother was injured at the time she ingested DES, a fact question exists as to whether the unborn child being carried by the mother was injured at that time or later. …

… It is as though the DES had a time bomb affect on the body. A general rule that ingestion and injury are simultaneous ignores the fact that some drugs have no immediate effect on the body and is premised on an absolutist theory that represents a primitive scientific view. The question of when an injury occurs is empirical in nature. If the issue is problematic, as in this case, a trial or hearing, where expert testimony can be presented, is necessary to resolve the matter. …

… The record does not reveal whether, on September 1, 1977, modern science could have determined that she was afflicted with any malady or that cancer was about to strike; yet, on that date, according to the majority, she lost her right to ever bring suit. While the stale claim rationale of Statutes of Limitations is a sound one, in this case, it is inapplicable. …

… This state of affairs is both illogical and unjust. The Court of Appeals has held that, in products liability cases, a cause of action accrues at the time of actual injury and not at the time the product was manufactured or sold, recognizing that it is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one. If the plaintiff in such a case safely used the product for years, the Statute of Limitations would only begin to run, because of a defect, when the defect caused an injury. Analogously, when a person comes into physical contact with a defective or dangerous chemical or drug, should not the measuring date for the Statute of Limitations be determined by when the substance actually has a deleterious effect on the body? As with any products liability case, is it not unthinkable, before plaintiff even has a cause of action, to time bar her from prosecuting a cause of action resulting from a mother’s ingestion of DES? “

Read the full paper FLEISHMAN v. ELI LILLY & CO. on Leagle.

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