1988 DES Case: Jolly v. Eli Lilly & Co.

Abstract

This case presents the following questions:

  • whether a plaintiff, in a suit for personal injury caused by a defective drug, who is unaware of any specific facts establishing wrongful conduct on the part of any drug manufacturer, may delay bringing an action until she discovers such facts;
  • whether a claim, otherwise barred by the statute of limitations, can be revived due to our decision in Sindell v. Abbott Laboratories, in which we held that a plaintiff who is unable to identify the particular manufacturer of a fungible drug that caused injury to her can state a claim by joining defendants who manufactured a substantial percentage of the market share of the allegedly defective drug;
  • and whether the filing of the class action in Sindell, supra, tolled the statute of limitations for members of the putative class until the class was denied certification.

We answer these questions in the negative and so conclude that the suit is time-barred.

JOLLY v. ELI LILLY & CO., Leagle, 1988114744Cal3d1103_11104, April 7, 1988.

Plaintiff Jolly was born in 1951. In 1972, she first learned that while she was in utero her mother had ingested the synthetic drug estrogen diethylstilbestrol (DES) for the prevention of miscarriage. Plaintiff was told in 1972 that DES daughters could suffer injuries. Therefore, she went to a DES clinic at the UCLA Medical Center for a checkup. She was diagnosed as having adenosis, a precancerous condition that required careful monitoring. In 1976, she had an abnormal pap smear and underwent a dilation and curettage, a surgical procedure to remove abnormal tissue. In 1978, plaintiff underwent a complete hysterectomy and a partial vaginectomy in order to remove malignancy. As of 1972, plaintiff was aware, or at least suspected, that her condition was a result of her mother’s ingestion of DES during pregnancy.

Starting in 1972, plaintiff attempted to discover the manufacturer of the DES ingested by her mother. Efforts were increased in 1976 and 1978 when plaintiff’s condition became acute. Unfortunately, the doctor who prescribed the drug had died, and plaintiff was unable to locate his records. Although the dispensing pharmacist did remember filling the DES prescription, he did not recall or have records pertaining to the specific brand used. This was not unusual since DES was a fungible drug, that is, hundreds of pharmaceutical companies made DES from a single agreed formula. The hospital where plaintiff was born was of no assistance because plaintiff’s mother did not use DES while there.

At least as of 1978, plaintiff was aware of the pendency of one or more DES suits alleging that DES manufacturers were liable to those injured due to their failure to test or failure to warn. Although she believed that DES had caused her injuries and that those who marketed DES had wrongfully marketed a defective product, there is no conclusive evidence in the record to show that a reasonable investigation by plaintiff in 1978 would have disclosed specific proven facts that would establish any wrongful conduct on the part of a DES drug manufacturer. In fact, even today defendants allege that DES is not defective, but for purposes of summary judgment have admitted the allegation of some defectiveness.

Further, plaintiff believed that she had no cause of action if she could not identify the particular manufacturer of the drug her mother took during pregnancy. Because her efforts to identify that manufacturer were unsuccessful, plaintiff did not file suit.

In March 1980, we decided Sindell v. Abbott Laboratories, supra, and held that if a plaintiff could not identify the precise drug manufacturer of the ingested DES, she could state a cause of action against the DES manufacturers of a substantial percentage of the market share of the drug. Defendants would be liable, assuming the remaining material allegations in the complaint were proven, unless they could disprove their involvement. Almost one year afterSindell, plaintiff Jolly brought this action.

Defendants moved for summary judgment, asserting that the action was barred by Code of Civil Procedure section 340, subdivision (3), setting forth a one-year statute of limitations period for an action “for injury … caused by the wrongful act or neglect of another.” Although conceding the applicability of the one-year statutory period, plaintiff denied that the suit was time-barred. She asserted that the statute did not commence until she learned of the Sindell decision, because only then did she realize that she would be able to successfully bring her claim.

Plaintiff maintained that Sindell created a new cause of action by redefining “causation.” Prior to Sindell, she claimed, only the specific manufacturer of the pills that were ingested was deemed to have “caused” the injury. After Sindell, according to plaintiff, it was the generic drug DES that “caused” the harm, and therefore all DES manufacturers were tortfeasors.

The trial court granted defendants’ motion and entered judgment in their favor. The Court of Appeal reversed, relying on its earlier decision in Kensinger v. Abbott Laboratories. The Court of Appeal did not address Jolly’s main argument, that the statute could not begin to run until after our decision in Sindell, supra, except by way of a footnote declining to adopt her position. ” …

…continue reading the full paper JOLLY v. ELI LILLY & CO., on Leagle.

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