1989 DES Case: Besser v. Squibb & Sons

Abstract

This appeal from the dismissal of a complaint on the ground that the action, commenced pursuant to the “revival statute”, was barred by the “borrowing statute” involves the interplay between the latter (CPLR 202) and the 1986 statute which revived causes of action arising out of exposure to diethylstilbestrol (DES) and other toxic substances, even if such causes had been previously dismissed as time barred. Since her action is time barred if the borrowing statute controls, plaintiff argues that, inasmuch as the revival statute begins with the words “notwithstanding any other provision of law” (L 1986, ch 682, § 4) the borrowing statute is to be disregarded in revival statute actions. The motion court rejected this argument and granted defendants’ motion for summary judgment.

BESSER v. SQUIBB & SONS, Leagle, 1989253146AD2d107_1238, March 30, 1989.

Image by Jeffrey Zeldman.

Plaintiff’s construction of the revival statute does not comport with the Legislature’s intent to provide to New York residents only — not the entire world — a one-year window period in which to sue for claims otherwise barred by law. Plaintiff was a resident of Pennsylvania at the time her cause of action accrued, a resident of New Jersey at the time her injury manifested itself, and a resident of Virginia at the time she first commenced a lawsuit for in utero exposure to DES. Despite the absence of any nexus to New York, she contends that this action, and many others which similarly have no connection to the State, can be maintained in this jurisdiction. We believe that such a result is contrary to logic and foreclosed by the legislative history and policy underlying the revival statute. Accordingly, we affirm.

Plaintiff, who was born in Philadelphia, was allegedly exposed, in utero, to DES during her gestation. Thus, any such exposure occurred wholly in Pennsylvania. In September 1975, while she was a resident of New Jersey and attending college in Massachusetts, plaintiff became ill and was diagnosed as having clear cell adenocarcinoma of the cervix, a condition allegedly caused by the exposure to DES. She thereafter underwent treatment in New Jersey and Pennsylvania. After graduating from college in 1977, plaintiff returned to her home in New Jersey. Since that time, she has resided in Illinois, Virginia and Massachusetts, but now apparently resides in New York.

On December 29, 1980, plaintiff commenced an earlier action in New York solely against E. R. Squibb & Sons, Inc. to recover for her alleged exposure to DES. At the time, she was a resident of Virginia, and had never lived in New York. That action was dismissed on July 27, 1982 because the court found that under the then applicable three-year Statute of Limitations, plaintiff’s cause of action accrued at the time of her “last exposure” to DES, and that, even allowing for a toll of the limitation period until she reached majority, she had commenced her action more than three years after she attained her majority on September 1, 1974.

In 1986, as part of a tort reform package, the Legislature enacted the Toxic Tort Revival Statute (L 1986, ch 682, § 4), which provides: “Notwithstanding any other provision of law, including sections fifty-e and fifty-i of the general municipal law, section thirty-eight hundred thirteen of the education law and the provisions of any general, special or local law or charter requiring as a condition precedent to commencement of an action or special proceeding that a notice of claim be filed or presented, every action for personal injury, injury to property or death caused by the latent effects of exposure to diethylstilbestrol, tungsten-carbide, asbestos, chlordane or polyvinyl-chloride upon or within the body or upon or within property which is barred as of the effective date of this act or which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired is hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act”.

Although the 1986 legislation made significant changes in the rules governing the conduct of personal injury suits, its focus was on the elimination of New York’s “last exposure” rule and the adoption of a “discovery” Statute of Limitations. (L 1986, ch 682, § 2, adding CPLR 214-c.) The new Statute of Limitations provides that a personal injury claim arising out of the “latent effects of exposure to any substance or combination of substances” accrues on the earlier of “the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence the injury should have been discovered”. (CPLR 214-c [2].) Henceforth, an injured party is permitted to assert a cause of action within three years from the date of discovery of the injury, regardless of the time of exposure. In addition, in an effort to eliminate the unfairness of the State’s last exposure rule, the revival statute provided a one-year window period to sue for persons who were or would have been barred by operation of the preexisting last exposure rule.

Commenced on August 6, 1986, this action was also brought initially only against Squibb. In addition to a general denial, Squibb’s answer asserted as affirmative defenses the bar of the applicable Statute of Limitations and the unconstitutionality of the revival statute. When plaintiff moved to dismiss these affirmative defenses, Squibb cross-moved for summary judgment on the ground, inter alia, that the action was barred by the Statute of Limitations. While the motion was pending, plaintiff commenced similar actions against The Upjohn Company and Eli Lilly & Company.

Squibb argued, and plaintiff did not contest, that where a cause of action accrues outside New York in favor of a nonresident, the borrowing statute requires that the foreign Statute of Limitations apply if it is shorter than the applicable New York limitation period ; that plaintiff’s injuries accrued in 1955 in Pennsylvania; and that, as a result, she must satisfy the Pennsylvania limitation rule, which, as long as the revival statute is upheld as constitutional, is shorter than the New York period. In response, plaintiff’s sole contention was, as it is on appeal, that since the revival statute commences with the words “notwithstanding any other provision of law”, the borrowing statute was intended to be excluded from any application to revived claims.

Finding that exposure to the drug occurred in Pennsylvania, while discovery of the illness took place in New Jersey, the court held that either the Pennsylvania or New Jersey law would apply by virtue of the borrowing statute. Applying that statute, the court ruled that the claim was untimely under the Statute of Limitations of either State, and dismissed the complaint. The court rejected the argument that the initial words to the revival statute excluded the application of the borrowing statute, citing In re “Agent Orange” Prod. Liab. Litig. At the court’s direction, the parties stipulated that the separate actions be consolidated and that Squibb’s cross motion be deemed to have been made by Upjohn and Lilly as well. This appeal followed.” …

…continue reading the full paper BESSER v. SQUIBB & SONS, on Leagle.

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