… “In this pharmaceutical products liability action, plaintiff Jean Moll alleges that as a result of her in utero exposure to the prescription drug diethylstilbestrol (DES) she suffers from an incompetent cervix, resulting in a probable inability to carry a fetus to term. Michael Moll alleges a loss of consortium. Defendants are manufacturers and distributors of DES.
MOLL v. ABBOTT LAB., Leagle, 1992916192MichApp724_1830, February 3, 1992.
Plaintiff testified at deposition that in 1975 she consulted a gynecologist, Dr. Ulmer, regarding birth control. Because of the way her cervix appeared, she was asked if she had undergone any abortions. Plaintiff told the doctor that she had not, and there was no further discussion at that time about the condition of her cervix. In 1976, Dr. O’Campo told plaintiff that she had a “hood over her cervix.” Dr. O’Campo asked plaintiff if her mother had taken DES and requested the medical records from when plaintiff’s mother was pregnant. Plaintiff had been told by her mother, Shirley Petroff, that she was hospitalized during her pregnancy because she was “losing” plaintiff. Mrs. Petroff told plaintiff that she remembered receiving medication to prevent her from “losing” plaintiff, but did not know what she was given.
In 1977, plaintiff was told by her doctor that the cervix “didn’t look good” and that the condition might be attributable to DES that her mother had taken. The doctor was still trying to locate the mother’s medical records at that time. When plaintiff was having difficulty getting pregnant in 1979, her doctor indicated that her difficulty might be related to the hood over her cervix. The doctor stated that it was possible that plaintiff’s condition was caused by exposure to DES.
The medical records from the pregnancy were still unavailable in 1979. Apparently, plaintiff’s mother had contacted the physician who had treated her during her pregnancy, but was unable to locate the records. In her deposition, plaintiff stated that in the late 1970s she tried to call the hospital where she was born in order to obtain the records, but was told that the hospital had either burned down or closed. Plaintiff also remembered discussing articles relating to DES and DES-related injuries with her mother. The record does not disclose the content of these articles or the information plaintiff gained from discussing them. According to plaintiff, these discussions could have occurred as far back as 1978 or 1980.
On December 30, 1986, plaintiff and her husband filed a complaint that sought damages for injuries arising from in utero exposure to DES.1 In June 1988, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10), alleging that there was no genuine issue of material fact because plaintiff had failed to produce evidence that her mother had ingested DES. The motion was apparently granted, but the entry of the order was delayed so that plaintiff could complete her investigation regarding her mother’s hospital records. In October 1988, plaintiff located records that indicated that her mother had ingested DES.
In December 1988, defendants again moved for summary disposition, this time under MCR 2.116(C)(7). Defendants alleged that plaintiff’s complaint was filed more than three years after she learned that her injuries might be related to in utero exposure to DES and was therefore barred under MCL 600.5805(9); MSA 27A.5805(9). In her response, plaintiff argued that her cause of action had not accrued until 1988, when she located the medical records that established that her mother had ingested DES. The trial court denied defendants’ motion, noting that plaintiff’s cause of action did not exist more than three years before the filing of the complaint because plaintiff did not have evidence that her mother had ingested DES.” …
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