” This is a products liability diversity action for injuries allegedly sustained as a result of the ingestion of diethylstilbestrol (DES) by plaintiff’s mother while she was pregnant with plaintiff in 1952. In January 1973, plaintiff became aware of her alleged injuries and that the generic drug DES was involved. Despite diligent efforts, she did not discover until August 1979 which of the several DES manufacturers selling the drug had actually manufactured and sold the drug her mother consumed. The instant lawsuit was filed on February 8, 1980..
YUSTICK v. LILLY & CO., Leagle, 19832131573FSupp1558_11875, November 9, 1983.
The issue is when plaintiff’s cause of action accrued, and the case is before the Court on defendant’s motion to dismiss because of the running of the statute of limitations. The Court finds that the statute of limitations did not accrue until plaintiff had the opportunity, after making reasonably diligent efforts, to identify the manufacturer of the drug in question, since the identity of the alleged tort-feasor is a “critical fact” or essential element in this cause of action. The motion to dismiss will therefore be denied.
While pregnant in 1952, plaintiff’s mother took DES supplied by Dr. John Comstock.
On December 14, 1972, plaintiff was examined as an outpatient of the University of Michigan Hospital. In January 1973, she was admitted to the University Hospital and underwent a vaginal biopsy. Vaginal adenosis, related to her mother’s ingestion of DES during her pregnancy with plaintiff, was discovered. At this time, plaintiff knew of her alleged injuries and their relationship to her mother’s ingestion of DES while pregnant.
In September 1976, plaintiff retained counsel and on September 16, 1976 plaintiff’s counsel wrote to the University of Michigan Hospital requesting plaintiff’s medical records for January 1973, and, on November 2, 1976, the hospital provided counsel with a complete copy of plaintiff’s medical records, including her January 1973 records. Plaintiff’s mother’s medical records from Dr. Comstock were also obtained in November of 1976.
On December 2, 1976, a physician at the University of Michigan Hospital wrote to plaintiff’s counsel, describing plaintiff’s injuries as diagnosed, and her mother’s ingestion of DES.
In 1977, plaintiff filed suit in Oakland County Circuit Court against Dr. Comstock, which was later settled. After filing that suit, and before its settlement, plaintiff’s counsel had conversations with representatives of the insurance company insuring Dr. Comstock and requested them to identify the manufacturer of the drug that Dr. Comstock distributed from his office in 1952. In late 1977 and early 1978, plaintiff’s counsel was informed that neither Dr. Comstock nor his office knew the identity of the manufacturer of the DES.
At the same time, plaintiff’s counsel was in communication with plaintiff’s parents and requested them to attempt to identify the manufacturer. These inquiries produced no helpful information prior to the summer of 1979.
In the summer of 1979, plaintiff’s father, while cleaning the attic of his house, found a bottle containing pills prescribed for plaintiff’s mother. These pills were presented to plaintiff’s counsel on August 1, 1979, and plaintiff’s counsel stated that he confirmed that the manufacturer of the pills was defendant Eli Lilly & Company. The instant action was commenced on February 8, 1980. ” …
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