1993 DES Case: Moll v. Abbott Laboratories

AbstractS

“In these pharmaceutical products liability actions, we are asked to determine when a cause of action for latent toxic injuries accrues for statute of limitations purposes. We hold that the discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action. Thus, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff’s action is barred by the statute of limitations is a question of law, to be determined by the trial judge.”…

Moll

MOLL v. ABBOTT LABORATORIES, Leagle, 1993445444Mich1_1445, September 21, 1993.

Jean Moll has an “incompetent cervix,” and for that reason is unable to carry a pregnancy to term. Because her cervix appeared irregular, her gynecologist, in 1975, asked her if she had had an abortion. She had not, and the gynecologist said that she had nothing to worry about regarding her cervix. Another gynecologist, in 1977, told her that she had a “hood over her cervix,” asked her if her mother had taken DES while she was pregnant with Moll, and asked that she obtain her mother’s medical records. That physician also told her that her cervix “didn’t look good,” that the condition might be related to exposure to DES, and that her difficulty conceiving might be related to DES. The physician added that DES exposure could lead to some forms of cancer. The physician also advised her to have a fertility test. Moll did not have the test at that time because she was “too chicken” and preferred to continue attempting to conceive.

By 1985, Moll, not having become pregnant, had the fertility test. After the test, her physician identified the hooded cervix as the probable cause of her inability to conceive.

This action was commenced on December 30, 1986, seeking damages for injuries from in utero exposure to DES. Abbott Laboratories filed a motion for summary disposition, asserting that Moll’s mother had not ingested DES. The motion was granted, but entry of the order was stayed until Moll could complete her search for her mother’s medical records.

In October, 1988, Moll obtained medical records establishing that her mother had taken DES. Abbott Laboratories then moved for summary disposition, asserting that Moll’s claim was barred because more than three years had elapsed since she knew or should have known that her injuries may have been caused by in utero exposure to DES.

The circuit judge denied the motion. The Court of Appeals affirmed, but remanded for a finding when a reasonable person in Moll’s circumstances would have concluded that her mother’s ingestion of DES was a likely cause of her hooded cervix.

The issue is whether Moll exercised reasonable diligence in discovering that DES exposure had caused her cervical condition and inability to conceive I agree with my dissenting colleague that in assessing the reasonableness of Moll’s delay in commencing this action, one should consider a number of factors including whether Moll sought to learn whether her mother had ingested DES, had informed herself through medical advice or lay literature of the potential connection between DES and reproductive problems, or sought to verify that DES, rather than another element, was a cause of her inability to conceive.

In the DES context, the concept of reasonable diligence should take into account that when a reasonable woman learns that she may be afflicted with a serious reproductive disorder, she may initially take steps to address her medical problem in light of the available medical information and the course of treatment prescribed by her physician. Such a reasonable woman may reasonably continue to focus on the healing or diagnostic process until she has reasonable confidence that her condition has been correctly diagnosed or is under control. Reasonable diligence should include as a factor that a woman anxious to have children may, although advised that she may be a victim of defective drugs, be more concerned about her health and achieving conception than abandoning those efforts in favor of recourse to the courts.

The record on appeal is sparse. We are therefore not in a good position to evaluate comprehensively the reasonableness of Moll’s behavior in delaying the commencement of this action We do not have the full depositions either of Moll or her mother. The small bit of evidence that the parties have chosen to include in the record is sufficient, however, to lead me to conclude that the issue of Moll’s diligence should not have been decided summarily.

Moll’s testimony shows a woman confused about her condition, unable to obtain her mother’s medical records, and fearful of a fertility test. Moll was receiving mixed signals from her physicians, who appear to have sought to alert her to the possibility of DES exposure without unduly frightening her. For instance, as the majority notes, in 1978 Moll was informed that the results of her colposcopy “were … fine” and also that “there was no cause for real concern at that time,” but also that her cervical condition could indicate DES exposure which could lead to cancer.

After receiving these mixed signals about her health and the warnings about possible DES exposure, Moll did make an attempt to locate her mother’s medical records in 1979. Her mother’s records had been stored at the Highland Park General Hospital, which had since closed because of fire, and Moll was unable to obtain the records. Moll’s physician then made an unsuccessful attempt to locate the missing records. That, too, failed. Moll decided to focus her energies on conceiving a child to determine if the DES exposure had truly left her unable to bear children. She did not pursue the medical records again until after this action was commenced. Even then, Moll was able to find and obtain the records only pursuant to a court order. The records finally confirmed that Moll’s mother had been treated with DES during Moll’s gestation.

The majority concludes, as a matter of law, that Moll did not exercise due diligence in attempting to discover the cause of her medical problems. However, before 1985, Moll’s physicians were only able to speculate about a possible link between her health problems and her mother’s ingestion of DES. No doctor told her with a fair degree of certainty that her condition was caused by DES.

The consultations with her physicians concerning her possible DES exposure came while Moll was undergoing examination and treatment for ailments such as excess vaginal discharge and infertility. The trier of fact could reasonably conclude that during this period Moll was reasonably justified in focusing on solving her medical problems rather than immediately searching to discover whether DES was a cause of those problems.

In all events she made a good-faith attempt to discover whether DES was a cause, without success. Moll and her physician each made attempts to find her records in the late 1970’s, but failed to do so. A reasonable trier of fact could conclude that due diligence required no more.

In holding that the statute of limitations begins to run as soon as a woman, situated as was Moll, discovers a “possible cause of action,” the majority places all such women in an untenable dilemma. If Moll had commenced an action when she was able to allege only a “possible” link between DES exposure and her injury, she very well may have suffered summary disposition. The majority’s approach thus effectively may deprive women like Moll of a meaningful opportunity to commence an action and recover for their injuries.

The Ohio Supreme Court recently struck down a DES-specific statute of limitations — which mirrored the Court’s approach in this case — because the statute did not afford DES-exposed women a reasonable opportunity to bring a claim for their injuries. The statute at issue in Burgess provided that a cause of action for DES-related injuries accrues “upon the date on which the plaintiff learns from a licensed physician that he has an injury which may be related to such exposure, or upon the date on which by the exercise of reasonable diligence he should have become aware that he has an injury which may be related to such exposure….” In the Ohio court’s words, the statute of limitations “is triggered when the plaintiff learns that she possibly has a DES-related injury.”

In a well-reasoned opinion, the court explained why the statute was unreasonable:

If a plaintiff were to file a complaint stating that she suffered a bodily injury which might be related to DES, the complaint would be dismissed for failure to state a claim…. Because the statute of limitations begins running when there is the slightest evidence that DES may be a possible cause of plaintiff’s symptoms, an attorney may be forced to file a complaint long before he can believe that there is good ground to support it. The alternative is to file no complaint. A plaintiff encounters further difficulties at the summary judgment level. A claim … must be filed based upon the possibility of an injury. A plaintiff faces the likely prospect that her claim will be unable to survive a motion for summary judgment. 

The “possible” claim approach was seen as unreasonable by the Ohio Supreme Court because it deprived plaintiffs of “an opportunity for remedy at a meaningful time or in a meaningful manner.” The majority’s approach deprives women of remedies for DES-related harms in much the same way as the Ohio statute in Burgess.

Harrington

Judith Harrington was exposed to DES in utero. She became aware of her DES exposure in January, 1975, and, between 1975 and 1983, saw several physicians who informed her that she exhibited certain abnormalities associated with DES exposure, including having a mosaic on her cervix. In 1983, because she was having difficulty becoming pregnant, she had an HSG test — an x-ray of the uterus and fallopian tubes. On December 27, 1983, her physician informed her of the results of the test — that she had a bicornuate uterus, and that it might also be abnormally T-shaped, whichcould cause difficulty in conceiving or carrying a pregnancy to term — and he scheduled additional tests, including a D and C.

During that office visit the physician told Harrington, however, that while some DES exposed daughters have difficulty conceiving and carrying a pregnancy to term, he was optimistic it would not be the case with her.

The circuit judge granted Abbott Laboratories’ motion for summary disposition on the basis that, pursuant to the discovery rule set forth in Larson v Johns-Manville Sales Corp, the three year statute of limitations began to run on December 27, 1983 — when Harrington learned of the result of the HSG test and knew that she had suffered “some damage” in the form of a misshapen uterus. The Court of Appeals affirmed.

The issue is when Harrington “knew” or “should have known” that she was “injured.” I would hold that considering the unique nature of DES-related harms, a reasonable trier of fact could conclude that Harrington should not have known that she was injured before she learned of her infertility.

Exposure to DES can have multiple effects — some of which will develop into compensable injuries — including cancer, uterine abnormalities, and difficulty with conception and then carrying a pregnancy to term. Not all the effects caused by DES exposure are in fact “harms” or “injuries” at the instant that the DES effect is discovered.

Harrington’s physician told her that DES exposure might have caused the development of her abnormal uterine condition. He also told her that this condition could cause difficulty in conceiving and carrying a child to term, but he was optimistic that would not be the case with her. At the same time, her physician advised her that many DES-exposed daughters do not have difficulty bearing children. The trier of fact could reasonably conclude that when Harrington first learned of her uterine condition it was not causing her any harm, and that she was reasonably justified in not considering it to be a present injury.

The Court errs in defining Harrington’s initial uterine condition as her injury and in defining the infertility as mere “additional consequences” of her “physical abnormality.” Harrington’s physical abnormality was not, in itself, clearly an injury that would cause her any sort of distress. Only after Harrington discovered that the physical abnormality would indeed prevent her from conceiving and carrying a child to term did she know that she had been truly harmed.

The majority’s approach places plaintiffs like Harrington in an untenable position in much the same way as the majority placed plaintiffs like Moll in an untenable position. The majority would have had Harrington file her action before she learned whether the uterine condition would truly be a problem. If she would have filed an action when she first learned of her uterine condition, before she knew whether the condition would cause infertility or other health problems, her action would probably have been dismissed on a motion for summary disposition. At that juncture, Harrington would not have been able to show how she had been harmed by DES. Her own physicians were telling her that they were optimistic that she could have children even with the uterine condition. Harrington would not have been able to identify any harm she was then suffering from the DES exposure, nor could she have carried the burden of showing that it was reasonably certain that her DES-related condition would eventually develop into a compensable injury. A reasonable trier of fact could conclude that Harrington acted with reasonable diligence in waiting until 1986 to conclude that she had suffered an injury.”  …

… continue reading the full paper MOLL v. ABBOTT LABORATORIES, on Leagle.

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