“Plaintiffs Carol Johnson and her husband, Larry Johnson (“the Johnsons”) commenced this action in New York State Supreme Court alleging that Carol Johnson’s mother ingested diethylstilbestrol (“DES”) manufactured by Eli Lilly in 1952, and that Carol Johnson has been injured as a result. Eli Lilly removed the action to this Court on the basis of diversity jurisdiction.
JOHNSON v. ELI LILLY & CO., Leagle, 1988859689FSupp170_1839, April 7, 1988.
The Johnsons now move for partial summary judgment, contending that Eli Lilly is collaterally estopped from disputing certain facts based on the special jury verdict returned in a prior DES case against Eli Lilly. Defendants cross-move for summary judgment dismissing the complaint, contending that plaintiffs are barred from bringing this action under the doctrine of res judicata. I find that plaintiffs are barred from bringing this action under the doctrines of res judicata and collateral estoppel, and, therefore, grant defendants’ motion to dismiss the complaint.
Plaintiffs allege that Carol Johnson’s mother, Elizabeth Philbin, took DES in 1952 while she was pregnant with Carol Johnson. The prescription written by Mrs. Philbin’s physician called for a five milligram dose of an Eli Lilly product known as Enseals Stilbestrol. “Enseals” is a trade-name used exclusively by Eli Lilly.
Carol Johnson has been diagnosed as having carcinoma in situ of the cervix, vaginal adenosis with focal dysplasis and typical DES changes in the cervix. She entered the Genesee Hospital on July 6, 1981, and received a total abdominal hysterectomy.
On February 23, 1983, the Johnsons commenced a products liability action against Eli Lilly in the United States District Court for the Western District of Pennsylvania based on Mrs. Philbin’s ingestion of DES and Carol Johnson’s development of cancer. (“Johnson I“) In an Order dated September 19, 1983, the court granted Eli Lilly’s motion to dismiss, finding that the action was barred by the New York statute of limitations which accrued at the time Mrs. Philbin ingested the DES.
On December 13, 1986, the Johnsons commenced a second action in the court of Common Pleas for Allegheny County, Pennsylvania. (“Johnson II“) The case was removed on January 12, 1987 to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1441. The Johnsons subsequently moved for partial summary judgment, seeking to collaterally estop Eli Lilly from litigating certain issues based upon the verdict in Bichler v. Eli Lilly and Co.. Eli Lilly cross-moved for dismissal on statute of limitations and res judicata grounds.
In a Memorandum Decision and Order dated October 28, 1987, the court denied the Johnsons’ motion for summary judgment and granted Eli Lilly’s motion to dismiss. The court held that the suit was barred by res judicata because the dismissal of Johnson I constituted a decision on the merits. Applying Pennsylvania’s borrowing statute and the Pennsylvania accrual date, the judge further found that the suit was barred by the Pennsylvania statute of limitations. However, the court noted that it made no judgment as to whether the New York revival statute served to reviveJohnson I because no formal motion requesting such relief had been filed. The court then granted Eli Lilly’s motion for summary judgment without prejudice to the Johnsons filing a motion to revive Johnson I.
While awaiting the decision in Johnson II, the Johnsons commenced the present action, (“Johnson III“) in New York State Supreme Court.” …
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