1985 DES Case: Cavanaugh v. Abbott Laboratories


” This is an interlocutory appeal by seven defendant drug manufacturers, in a drug product liability case, challenging the correctness of the order of the Addison Superior Court denying their motions for either judgment on the pleadings or summary judgment. Each of the defendants in support of its motion claimed it was entitled to judgment as a matter of law, alleging that the plaintiff’s drug product liability suit against them was barred by applicable statutes of limitations.

CAVANAUGH v. ABBOTT LABORATORIES, Leagle, 1985650496A2d154_1649, April 26, 1985.

In her complaint, plaintiff alleges that before she was born on March 16, 1957, and while in utero, she was exposed to a synthetic estrogen known as diethylstilbestrol (hereinafter referred to as DES) manufactured by some or all of the defendants. She further alleges that the drug was prescribed by her mother’s physician and that her mother ingested it while plaintiff was a fetus en “ventre sa mere”. She avers that she was blamelessly ignorant of the harmful effect of DES upon her, and that even by due diligence her injury was not discoverable, and it did not manifest itself, until May 1, 1979. It was then her physician diagnosed that she had contracted a form of vaginal cancer, known as clear cell adenocarcinoma, caused by her fetal exposure to DES. The plaintiff maintains that this drug, together with other factors, including puberty and menarche, was a proximate cause of her cancer.

The questions presented to us by these appeals are:

  1. whether, 54 years later, we should now jettison the rule of Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), as an outmoded and unrealistic interpretation of the term “accrues” as used in 12 V.S.A. § 512 (personal injury action must be commenced within three years “after the cause of action accrues” and not after), and hold that plaintiff’s cause of action is not barred by the aforementioned three-year statute of limitations,
  2. and if plaintiff’s cause of action is not barred by the rule of Murray v. Allen, supra, whether it is barred by the 20-year statute of repose, 12 V.S.A. § 518, which bars claims commenced more than 20 years after the “last occurrence to which injury is attributed”.” …

… continue reading the full paper CAVANAUGH v. ABBOTT LABORATORIES, on Leagle.

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