1997 DES Case: Wetherill v. Eli Lilly & Co.

Abstract

“CPLR 214-c (2) provides that the time for initiating a cause of action for damages resulting from exposure to a harmful substance begins to run from the date that the “injury” was discovered or could have been discovered with reasonable diligence. The specific issue before us in this appeal is whether an “injury” is discovered within the meaning of CPLR 214-c (2) when the symptoms become apparent or instead when the connection between those symptoms and the injured’s exposure to a toxic substance is recognized. We hold that the time for bringing the action begins to run under the statute when the injured party discovers the primary condition on which the claim is based.

MATTER OF NY COUNTY DES LITIG., Leagle, 199759589NY2d506_1553, Court of Appeals of the State of New York, February 11, 1997.

According to the papers submitted on the motion for summary judgment, plaintiff Susan Wetherill was treated in 1978 or 1979 for dysplasia, a diagnosis indicating a “pre-cancerous” condition in her cervix. Thereafter, plaintiff had a series of reproductive difficulties, suffering four successive miscarriages in 1980 or 1981, 1984, early 1986 and late 1986. In 1987, after having sought help identifying the reasons for her repeated miscarriages, plaintiff was advised that she had a T-shaped uterus, and she underwent surgery for the removal of adhesions and a uterine septum. Less than a year later, plaintiff delivered a preterm baby after 24 weeks of gestation, but the infant did not survive. Several months after this delivery, plaintiff was advised that she had an “incompetent” cervix. She was subsequently treated for this condition.

Plaintiff testified at her deposition that it was not until shortly after her 1988 preterm delivery that she first learned that her mother may have taken a harmful drug during her own pregnancies that could have affected her daughters’ reproductive health. Plaintiff had not previously heard about diethylstilbestrol (DES), the drug that is now known to cause abnormalities and pathological conditions in some of its users’ female offspring (see, Hymowitz v Lilly & Co.). According to her deposition testimony, plaintiff first learned about DES and the possibility that her mother had ingested it during a telephone conversation with her sister that took place in or about March of 1988. Plaintiff’s sister was unable to state with certainty that her mother had taken DES because her own efforts to locate the medical records had been unsuccessful. Plaintiff did not immediately pursue the matter by asking her mother directly about the drugs she may have taken during pregnancy. Instead, she waited until late 1989, at which time she overheard the physician who was treating her for her current pregnancy tell a medical assistant that her medical history revealed “classic symptoms of DES.”

On August 14, 1992, plaintiff commenced the present action against a host of DES manufacturers. After discovery was had, several of the defendants moved for summary judgment dismissing the complaint on the ground that it was time-barred under CPLR 214-c (2). The moving defendants argued that the action was untimely because it was commenced more than three years after plaintiff had discovered the reproductive ailments that formed the basis of her claim. Plaintiff opposed the motion, arguing that the time to commence her action did not begin to run until late 1989, when she overheard the conversation between her physician and a medical assistant and thereby learned that her symptoms were likely to be DES related.” …

… continue reading the full paper MATTER OF NY COUNTY DES LITIG., on Leagle.

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