” This case was filed in a Tennessee state court by Mrs. Jennifer Mathis, joined in the suit by her husband, Barry Mathis, seeking damages for personal injury due to her exposure to diethylstilbestrol (DES), a drug developed by Eli Lilly as a synthetic hormone to prevent miscarriages. It is alleged that Mrs. Mathis’ mother took DES in May, 1955, while pregnant without knowledge that the drug DES may cause cancer in her offspring. Mrs. Mathis alleges that she did not know she had developed cancer (of the cervix) until July, 1980, some twenty-five years after the product was purchased and used by her mother during her pregnancy. Defendant – appellee Lilly filed a motion for summary judgment in the case, relying upon provisions of Tenn.Code Ann. § 29-28-103, which was originally enacted in 1978, and amended in 1979 by the addition of Section (b). The statute provides in its entirety:
29-28-103. Limitation of actions — Exception.
- (a) 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.
- (b) The foregoing limitation of actions shall not apply to any action resulting from exposure to asbestos.
The trial court granted appellee’s motion for summary judgment and appellants appeal. They argue that the statute violates Article 1, Section 20, and Article 1, Section 8, of the Tennessee Constitution, as well as the Fourteenth Amendment to the United States Constitution.
MATHIS v. ELI LILLY & CO., Leagle, 1983853719F2d134_1823, October 7, 1983.
While the Tennessee statute in question imposes generally a ten-year limit on bringing actions against a manufacturer or seller such as Lilly, dating from the time that its product was “first purchased for use,” there are exceptions written in the law to this general limitation.
- The first exception may lessen the period of repose if the “anticipated life of the product” is less than nine years, because the action would then have to be brought within a year after the expiration of the anticipated life.
- The next exception applies in the case of injury to minors to make it clear that this statute does not abrogate the usual special consideration given to minors to extend the period in which they may sue to one year after attaining the age of majority Thus, it may have been possible for appellant, under this statute, if valid as written, to have sued at any time within nineteen years after her birth if an injury had allegedly occurred within that time, instead of ten years after May, 1955, when the DES was purchased for use.
- A third exception to the general ten-year limit was adopted by the 1979 amendment to the Act in question by the addition of section (b), which excepts “any action resulting from exposure to asbestos.”
In his ruling granting appellee’s motion, the trial judge noted that “plaintiffs set forth their constitutional theories in a 6 page brief.” He cited only two Tennessee state court decisions and six federal court cases in his order granting judgment for Lilly, which is the basis for this appeal. Appellants’ brief cites only one Tennessee case (different from the two mentioned in the opinion and order appealed from) and three federal cases, and no other authorities. If this Court were to decide the case based on the precedents cited by the trial court and by appellants, the decision may not have been as detailed, but we must look beyond these cited authorities in deciding the difficult issues involved.
While we have found it necessary to look beyond the authority cited by the parties, we have notconsidered, and do not decide, issues which the parties did not raise and brief. Thus, we intimate no opinion on the constitutionality of the challenged statutes on other grounds, not raised and not discussed herein. ” …
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