“In February 1960, Kathleen Dwyer, pregnant with the plaintiff, Mary Hartnett, received care from Dr. Milton Carvahlo, a New York obstetrician. Dr. Carvahlo, aware that Dwyer had experienced two prior miscarriages, prescribed the drug Dienestrol (DEN), as a preventative measure. DEN is a synthetic estrogen that was approved in 1950 and administered to patients with a high risk of miscarriage due to hormonal deficiency. Dwyer gave birth to Hartnett on September 29, 1960.
HARTNETT v. SCHERING CORP., Leagle, 1993922F3d90_173, August 26, 1993.
In the mid-1970’s, Dwyer learned of the dangers of Diethylo-stilbestrol (DES) through media publicity. DES is a synthetic estrogen, similar to DEN. Dwyer, unable to recall the name of the drug that had been prescribed during her pregnancy with Hartnett, became concerned. As a result, Dwyer asked two doctors, Dwyer’s present gynecologist and Hartnett’s pediatrician, whether it was possible that Dwyer had been prescribed DES during her pregnancy. The latter said it was possible and the former said it was unlikely. Neither doctor, however, had any personal knowledge of the events concerning Dwyer’s pregnancy.
Dwyer then wrote to Dr. Carvahlo’s office requesting the same information. She received a reply stating that Dr. Carvahlo had moved from the area and that her office records were unavailable. In addition, Dwyer wrote to Lourdes Hospital, where she had given birth to Hartnett. The hospital stated in response, that it found “no prescriptions for Stilbeslerol [another name for DES] while you were here in this hospital during your 1960 admission.” Dwyer made no further inquiries into the matter.
In 1982, Hartnett was hospitalized for surgery necessitated by an ectopic pregnancy. During the surgery it was necessary to remove Hartnett’s left fallopian tube and left ovary. After conducting a complete gynecological examination, Hartnett’s physician informed Hartnett that she had been exposed to DES in utero and was suffering from various “stigmas” of that condition, including an impaired ability to carry a pregnancy to term.
Following hospitalization, Hartnett discussed the matter with her mother and was informed of Dwyer’s attempts to gain information in the 1970’s. Hartnett made no further investigation into the matter, except in 1986, when Hartnett met with her attorney and discussed the possibility of contacting Dr. Carvahlo, but decided against it.
Between 1981 and 1988 Hartnett suffered two miscarriages and three premature births. In 1988, she elected to have a tubal ligation of her remaining fallopian tube.
In 1988, Mary and Joseph Hartnett initiated suit against Eli Lilly and Company, the manufacturer of DES. During discovery, Eli Lilly located and deposed Dr. Carvahlo. Eli Lilly also obtained Dwyer’s records from the hospital. Both Dr. Carvahlo’s and the Lourdes Hospital’s records revealed that Dwyer was prescribed DEN, not DES. As a result of this information, the Hartnetts dismissed their suit against Eli Lilly and initiated an action in the Northern District of New York against Schering and two other DEN manufacturers. The district court, however, dismissed the Hartnetts’ suit for lack of diversity.
The Hartnetts subsequently filed this action against Schering in the United States District Court for the District of Maryland. Upon finding that the Hartnetts failed to bring their claim within the applicable three year statute of limitations period, the district court granted summary judgment in favor of Schering. The Hartnetts now appeal.” …
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