1985 DES Case: Kensinger v. Abbott Laboratories

ABSTRACT

Appellant filed a complaint for damages against numerous pharmaceutical companies, some of which are respondents herein, on November 25, 1980, alleging the following causes of action: negligence; strict products liability; breach of implied warranty; breach of express warranty; and fraud. The complaint alleges that respondents manufactured, distributed and sold diethylstilbestrol, a synthetic estrogen popularly known as DES, a substance to which she was exposed in utero in late 1958 and early 1959, causing her to contract clear cell adenocarcinoma of the vagina and cervix many years later.

KENSINGER v. ABBOTT LABORATORIES, Leagle, 1985547171CalApp3d376_1515, August 22, 1985.

After undertaking extensive discovery, respondent Eli Lilly & Company (hereafter Lilly) filed a motion for summary judgment on the ground that appellant’s action was barred by the applicable statute of limitations (Code Civ. Proc., § 340, subd. (3)). The remaining respondents joined in Lilly’s motion, and moved for summary judgment on the additional ground that they did not manufacture or market the product which caused appellant’s injuries.

After a full hearing on the motions, in the course of which deposition testimony and declarations were received as evidence, the trial court ruled that the statute of limitations had run on appellant’s claim. Judgment was entered accordingly in favor of respondents, and this appeal followed. We summarize the pertinent factual background as follows.

While pregnant with appellant in 1958 and early 1959, appellant’s mother ingested DES, a drug customarily prescribed at that time to prevent miscarriages and other accidents of birth. According to the declaration of Richard R. Deardorff, the pharmacist who dispensed the drug in question, his records indicate that Lilly was the manufacturer of the DES given to appellant’s mother. Appellant was born on January 13, 1959, apparently after being exposed to the drug in utero.

Later, the efficacy of DES was questioned and a statistical association between prenatal exposure to DES and adenocarcinoma was discovered. After 1971, DES was no longer marketed as a drug to prevent pregnancy complications.

In August of 1974, after she was diagnosed as suffering from clear cell adenocarcinoma of the vagina and cervix, appellant underwent surgery and a radium implant was placed in her vagina.

At the time of her surgery and treatment in 1974, appellant was told by her doctors that the cancer was caused by her mother’s ingestion of DES during pregnancy. She believed then that DES was a “bad product.” In her declaration, appellant expressed the conclusion, reached in 1977, that “the cause of my cancer and all the things that flowed therefrom, were as a result of the fact that my mother had taken this drug during the time she was pregnant with me.”

In 1977, when appellant reached the age of majority, she felt that the discomfort she experienced during sexual relations and her inability to have children, was also “caused by DES and the cancer and the resulting surgery.” By this time, appellant also learned by overhearing a conversation between her parents that Lilly was the probable manufacturer of the DES taken by her mother. In 1977, appellant’s father was advised by a lawyer that his daughter could not successfully bring suit for her injuries.
 

In 1980, appellant was alerted to newspaper clippings which mentioned the right of DES victims to sue without identifying the particular manufacturer of the drug causing their injuries. She thereafter consulted an attorney and the instant action was filed on November 25, 1980.” 

… read the full paper KENSINGER v. ABBOTT LABORATORIES, on Leagle.

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