“Susan Denise Trahan has filed suit against E.R. Squibb and Sons, Inc., for injuries occurring allegedly as the result of her in utero exposure to Diethylstilbestrol (DES) manufactured by the defendant E.R. Squibb and Sons, Inc. The plaintiff originally claimed a right to recovery under theories of express and implied warranties, but now agrees that any recovery must be based on negligence or strict liability. Squibb has moved for summary judgment on the strict liability cause of action, claiming that the substantive law of North Carolina controls and that North Carolina’s highest court has expressly refused to adopt that doctrine. Trahan argues that Tennessee law, which recognizes strict liability, should apply.
TRAHAN v. E.R. SQUIBB & SONS, INC., Leagle, 19831072567FSupp505_1979, August 2, 1983.
The plaintiff’s mother was apparently a domiciliary and resident of North Carolina during the entire time she was pregnant with Ms. Trahan. Her doctor prescribed treatment with DES as a means of preventing spontaneous abortion. That treatment and the plaintiff’s birth occurred in North Carolina. At the time of her birth no one diagnosed the plaintiff as having a DES related injury. The record is unclear as to whether the lack of such a diagnosis was because the condition had not yet developed, because the condition was not medically discoverable at that time even though it had already developed, or merely because the doctor failed to detect a condition which was discoverable.
Some years after her birth, the plaintiff moved to Tennessee where she became pregnant. Dr. Horace T. Lavely examined the plaintiff in Tennessee on January 15, 1976, before she became pregnant and again on April 10, 1979, when she was three months pregnant. At both of these examinations he found no abnormality of her cervix. (SeeDeposition of Dr. Horace T. Lavely, Jr., p. 7, lines 16-17 and p. 8, lines 7-12). Ms. Trahan’s incompetent cervix was not diagnosed until she was 26 weeks pregnant. That diagnosis was made by Dr. Marcia Montgomery during an examination in Tennessee which occurred while the plaintiff was a resident and domiciliary of Tennessee. Ms. Trahan while in Tennessee gave birth and suffered the damages of which she complains.” …
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