” Defendant Eli Lilly and Company has filed a motion for summary judgment against plaintiff Carla Errichiello as to both counts of her complaint. As grounds therefor, defendant argues that plaintiff’s claims are barred by the Massachusetts statute of limitations governing tort claims and actions for breach of warranty.
The relevant facts are not in dispute. On June 22, 1982 plaintiff filed the instant action against six manufacturers of diethylstilbestrol (DES) alleging that she developed vaginal cancer as a result ofin utero exposure to DES, i.e., because her mother took DES while pregnant with plaintiff. Count 1 of the complaint charges the defendants with negligence in the manufacture and marketing of DES. Count 2 charges defendants with breach of certain implied warranties.
ERRICHIELLO v. ELI LILLY AND CO., Leagle, 19851102618FSupp484_11003, October 9, 1985.
The briefs and exhibits submitted by the parties show that plaintiff was diagnosed as suffering from a form of vaginal cancer in July, 1973. At that time, her treating physician informed her parents that the cancer was probably linked to in utero exposure to DES. Plaintiff’s brother and grandmother learned of the suspected link shortly thereafter. Additionally, plaintiff’s medical records and doctor’s reports, prepared between 1973 and 1979, contained references to the causal connection between in utero exposure to DES and plaintiff’s vaginal cancer.
Plaintiff states that although she was informed that she had cancer, she was never told by either her doctors or her family that her cancer was in any way connected with DES. She alleges that she did not learn that her mother had taken DES until her mother told her in July of 1980. Before that time plaintiff never attempted to determine the cause of her cancer or inspect her medical records. She states that she believed that cancer afflicted many people for no apparent reason and thus she never thought to inquire as to the cause of her own cancer. However, plaintiff commenced the present litigation within three years of her discovery of the suspected causal connection between her cancer and DES ” …
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