“ Defendants (E. R. Squibb & Sons, Abbott Laboratories, Merck & Co., The Upjohn Company and Eli Lilly & Company) move pursuant to CPLR 3211 (a) (5) and/or 3212 for partial summary judgment dismissing plaintiff’s wrongful death claims as barred by the Statute of Limitations.
Plaintiff, as administrator of the estate of his deceased daughter, Susan Greene, relies on the revival statute to commence this products liability action to recover for injuries allegedly related to decedent’s exposure to diethylstilbestrol (DES) in 1950 to 1951 while decedent’s mother was pregnant. Susan Greene was born on February 9, 1951 and died at the age of 18 on March 9, 1969 of clear cell adenocarinoma of the vagina. The two-year Statute of Limitations for wrongful death claims contained in EPTL 5-4.1 commenced at the date of death. No wrongful death or personal injury action was instituted prior to the commencement of this action on June 3, 1987.
GREENE v. ABBOTT LABS, Leagle, 1987561137Misc2d424_1481, November 6, 1987.
The revival provision which did not become part of the CPLR revived for one year certain otherwise time-barred personal injury claims relating to the exposure to or ingestion of five substances, including DES. Also revived were certain wrongful death claims which had previously been barred on Statute of Limitations grounds. The statute specifically excluded from revival “any action for a wrongful act, neglect or default causing a decedent’s death which was not barred as of the date of decedent’s death and could have been brought pursuant to section 5-4.1 of the estates, powers and trust [sic] law”.
This dispute involves the breadth of the language excluding certain wrongful death claims from revival. Although decedent’s claim was not barred at the time of her death because of the toll for infancy plaintiff contends that the wrongful death claims are still not excluded from revival as claims that “could have been brought” because while decedent’s representatives were aware of her injuries at the time of death and that her death was due to cancer, the causal connection between DES and that cancer was not well established in 1969.” …
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