“ Plaintiffs, a husband and wife, brought this action against eight manufacturers of the prescription drug, diethylstilbestrol (DES), seeking the recovery of damages for injuries allegedly sustained as a result of the wife’s in utero exposure to the drug in 1949. Although expressly brought pursuant to New York’s “Toxic Tort Revival Statute” (L 1986, ch 682, § 4), and concededly commenced more than seven months after the expiration of the statute’s one-year window period, effective July 30, 1986, plaintiffs contend that the action is nonetheless timely by virtue of the commencement of two purported class actions within the one-year window period.
SINGER v. ELI LILLY & CO., Leagle, 1990363153AD2d210_1329, Appellate Division of the Supreme Court of the State of New York, First Department, January 4, 1990.
Defendant American Home Products Corp., pursuant to CPLR 3211 (a) (5), moved to dismiss on the ground that the action was time barred. Each of the other defendants thereafter moved on the same ground. In arguing that the pendency of two class actions filed within the window period on behalf of women similarly exposed to DES tolled the revival period, plaintiffs relied on American Pipe & Constr. Co. v Utah, which held that in certain circumstances the commencement of a class action tolls the running of the applicable Statute of Limitations as to all putative members of the class.
The motion court granted the motions, holding that commencement of the action within the one-year window period was a condition precedent to bringing a suit for personal injury arising out of DES exposure. Thus, the court reasoned, that period could not be affected by the tolling provisions applicable to Statutes of Limitation, even if New York courts were to adopt the Federal doctrine, as expressed byAmerican Pipe (supra), which permits tolling of a Statute of Limitations during the pendency of a class action. We affirm.
On July 30, 1986, Governor Cuomo signed into law a “tort reform” package, including the revival statute, which provided that any action seeking damages for personal injury, property damage or death caused by the latent effects of exposure to five substances, including DES, that was time barred or had been previously dismissed because the applicable period of limitations 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” (L 1986, ch 682, § 4).
The revival provision was the second part of a two-pronged reform to remedy the inequity of New York’s former date-of-exposure rule for injuries caused by the latent effects of toxic substances. In that regard, the central focus of the reform package was the adoption of a discovery Statute of Limitations (L 1986, ch 682, § 2, adding CPLR 214-c). Henceforth, an injured party would be permitted to assert a cause of action within three years from the date of discovery of the injury, regardless of the time of exposure.
The revival statute was itself a product of compromise. “Legislative history indicates that the five named substances were distinguished from other toxic substances (§ 2) as a result of compromise between the Assembly (which had voted to permit revival for all toxic substances) and the Senate which wanted to limit revival. The Legislature ultimately limited revival based upon the existence of an identifiable group affected and the resulting ability to predict the future costs of such revival. The Legislature was apparently concerned that under a broader revival statute, the large number of unknown victims would create unpredictable risks and costs.” (Hymowitz v Lilly & Co.). Thus, the limitation of revival to a one-year period and the selection of only five substances reflected an intent to limit the effects of revival. ” …
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