… ” A grave injustice — to victims of DES as well as to past and future victims of identified and unidentified substances which do not immediately make known their harmful effect upon the body but have a “time-bomb” effect — is worked by the current rule of law which requires negligence and products liability causes of action to be brought before a plaintiff could reasonably know of their existence and very likely before any medically cognizable injury has occurred. It is time to abandon that inequitable rule as a mistake of the past that we have a duty to correct. The current rule is unreasonable and the Statute of Limitations should not be construed in such a manner.
FLEISHMAN v. ELI LILLY & CO., Leagle, 198495062NY2d888_1748, June 12, 1984.
It is not persuasive to say that any change is better left to the Legislature. That the determination of when a cause of action accrues is not solely a matter for the Legislature, is plainly evident by this court’s determination here and previously, that a cause of action of this type accrues upon injury which is assumed to occur at the time of exposure, ingestion or injection of the cancer-causing foreign substance. Indeed, when this court acted to change the common law by adopting a date-of-discovery rule for the commencement of foreign-object medical malpractice cases, it stated:
“Our decision does not encroach upon any legislative prerogatives. The Legislature did not provide that the Statute of Limitations should run from the time of the medical malpractice. This court did. Therefore, a determination that the time of accrual is the time of discovery is no more judicial legislation than was the original determination. Granted, the Legislature could have acted to change our rule; however, we would surrender our own function if we were to refuse to deliberate upon unsatisfactory court-made rules simply because a period of time has elapsed and the Legislature has not seen fit to act.“
A Statute of Limitations serves in part to prevent plaintiffs from sleeping on their rights or waiting to assert stale claims and to ensure that defendants will receive notice of claims as soon as practicable. In these cases, the plaintiffs cannot be said to have purposefully or unreasonably waited to bring suit because no injuries were known by them to occur at the time of their ingestion of or exposure to DES.
As to the deterioration of the ability to defend, this situation is functionally equivalent to defective products that are implanted without assimilation. In the latter situation, “the age of the claim and consequent problems of proof disadvantaged not only the manufacturer but also the plaintiff who to succeed had to prove that the defect existed at the time it left the manufacturer’s plant”. Indeed, in DES cases, because of the long passage of time until a suit is brought, the plaintiff will be severely disadvantaged in trying to determine which drug company manufactured the product, and the availability of other theories of recovery has not yet been expressly determined (see Bichler v Lilly & Co.). Further, the fact that the product has assimilated into the body does not debilitate the defense, because the nature of the claim is not that the product “broke” but that its known and undisputed chemical composition at the time of ingestion was defective. Thus, examination of the actual product here, unlike a defective implanted product, is not crucial to the defense. Finally, prior DES cases have shown that much of the original testing information has been preserved by the chemical manufacturers.” …
… “These cases present a compelling argument for adopting a discovery rule. The plaintiff may not know of the exposure to DES or other potentially harmful pharmaceuticals, which presents a situation similar to the foreign-object medical malpractice cases where a discovery rule is utilized (see CPLR 214-a), or that such exposure may be harmful. With an implanted device, it is far more likely that the plaintiff will discover injury caused by a product failure within the Statute of Limitations, but with ingested medications, the plaintiff will often not learn of or suspect any injury until the cancer begins to manifest itself, which may be years after the present limitation period or even after the cancer cells began to form. This is especially true, when the drug was a teratogen and the plaintiff was in utero.
In sum, given the relatively equal deterioration in the ability to defend and prosecute, these types of “time-bomb” drug cases, and the strong societal interest in not depriving an injured person of his or her claim before it can reasonably be asserted, a discovery rule should be adopted in these cases.” …
… Read the full paper FLEISHMAN v. ELI LILLY & CO. on Leagle.