“This is a products liability action against numerous pharmaceutical manufacturers for personal injuries plaintiff allegedly sustained as a result of in utero exposure to diethylstilbestrol (DES). The parties agreed before the IAS Court that plaintiff’s cause of action accrued in Indiana and that, under the borrowing statute, the Indiana Statute of Limitations applies to this case since, facially, it is shorter than the applicable New York period of limitations. (See, e.g., Besser v Squibb & Sons). According to plaintiff’s deposition testimony, she became aware of her injuries and their relationship to DES exposure in 1975 and commenced this lawsuit in 1993, after reading an article dealing with DES in the February 1993 issue of McCall’s magazine.
MATTER OF NY COUNTY DES LITIG., Leagle, 1996254220AD2d34_1249, May 23, 1996.
Defendants moved for summary judgment dismissing the action as untimely, arguing that plaintiff’s claim accrued in 1975, when she learned of her injuries and that they were probably caused by her exposure to DES. Plaintiff asserted that since she was “prompted” to bring the lawsuit by the 1993 McCall’s article, according to which it was not until the fall of 1991 that legislation was signed to devote significant government funds to research on the health risks to those exposed to DES, the action commenced in April 1993 was timely commenced. The IAS Court granted defendants’ motion and cross motions and dismissed the action as against all defendants, holding that the State of Indiana does not require plaintiff’s knowledge of wrongdoing for accrual of a cause of action.
The issue on appeal is whether plaintiff’s cause of action accrued, and the Statute of Limitations began to run, when plaintiff discovered that she had been injured and that the injury was caused by DES or whether the limitations period only began to run when plaintiff knew or should have known of defendants’ wrongful conduct. The Indiana courts have not addressed this precise issue. As we read Indiana law, however, the cause of action did not accrue until plaintiff knew or reasonably should have known that her injuries were the result of some wrongdoing on defendants’ part.” …
… continue reading the full paper MATTER OF NY COUNTY DES LITIG., on Leagle.