1993 DES Case: Burgess v. Eli Lilly & Co.

Abstracts

“We answer the three questions together by responding that the provision of R.C. 2305.10 regarding the accrual date of a cause of action for DES-related injuries is unconstitutional. A cause of action based upon DES exposure accrues only when the plaintiff has been informed by competent medical authority that she has been injured by DES, or upon the date on which, by the exercise of reasonable diligence, she should have known that she has been so injured.”…

BURGESS v. ELI LILLY & CO., Leagle, 199312566OhioSt3d59_1102, February 23, 1993.

… “Simply put, the two-year statute of limitations is triggered when the plaintiff learns that she possibly has a DES-related injury.

There is more than a semantic difference between knowing that one has a DES-caused injury and knowing that one may have such an injury. A degree of certainty is missing. Knowledge of the possibility that an injury may be related to a specific cause simply does not reach the constitutionally mandated threshold granting every person a remedy in due course of law for an injury done.” …

… “DES victims are arbitrarily and unreasonably given a more restrictive statute of limitations, one unlike any other in the Ohio Revised Code. Indeed, during oral arguments, respondent’s (Eli Lilly & Company’s) attorney, who was arguing for the constitutionality of the statute, stated that he was not aware of a statute of limitations anywhere in this country which uses the “may be related” language of R.C. 2305.10. That language unreasonably requires DES victims to bring their claim based upon the mere possibility of an injury.

The DES-related provision of R.C. 2305.10 does not bear a real and substantial relation to the public health, safety, morals or general welfare. It is also unreasonable and arbitrary, and is therefore unconstitutional.” …

… read the full paper BURGESS v. ELI LILLY & CO, on Leagle.

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