… “The facts as set forth by the Eleventh Circuit are as follows. Susan Wood, Bettie Wood, and Jonathan Wood Jr. (plaintiffs) filed suit on March 1, 1988, in Broward County Circuit Court against Eli Lilly and Company and the Upjohn Company, Inc. (defendants). The gravamen of the complaint was that plaintiffs were exposed in utero to the drug diethylstilbestrol (DES) when their mother was pregnant and that their illnesses are linked to their mother’s ingestion of the drug.
The defendants removed the action to the United States District Court for the Southern District of Florida. On September 19, 1989, the federal district court dismissed the action because of plaintiffs’ inability to identify the manufacturer or manufacturers of the DES ingested by their mother. The plaintiffs subsequently appealed to the Eleventh Circuit Court of Appeals, and while their appeal was pending, this Court announced its decision in Conley v. Boyle Drug Co. Conley held, for the first time in Florida, that the market-share alternate theory could be used in DES cases to apportion liability.”…
WOOD v. ELI LILLY & CO., Leagle, 19971045701So2d344_11002, October 30, 1997.
… “Plaintiffs again appealed to the Eleventh Circuit Court of Appeals, arguing that no cause of action arose for them until the Conley decision was issued and that applying the statute of limitations to bar their claims would violate their right of access to the courts under article I, section 21 of the Florida Constitution. The Eleventh Circuit noted that this was an issue of first impression in Florida and certified the following question to this Court:
IN A NEGLIGENCE ACTION CONCERNING THE DRUG DIETHYLSTILBESTROL (DES) IN WHICH A PLAINTIFF RELIES ON THE MARKET SHARE THEORY OF LIABILITY TO RECOVER FROM THE DEFENDANTS, DOES THE STATUTE OF LIMITATIONS COMMENCE RUNNING ON THE DATE THAT CONLEY WAS ISSUED OR ON THE DATE THAT THE PLAINTIFF KNEW, OR REASONABLY SHOULD HAVE KNOWN, OF HER INJURY?
In Conley, this Court held that a DES plaintiff who cannot identify the manufacturer responsible for his or her injury may rely on the market-share alternate theory of liability when bringing suit. 570 So.2d at 286. Under this theory of liability, the plaintiff need only establish that the named defendant or defendants produced or marketed the type of DES ingested by the plaintiff’s mother and may recover damages proportional to the share of the market occupied by those defendants. Id.
Plaintiffs argue that because they could not locate or identify the manufacturer responsible for their injuries, they did not have a cause of action until the market-share alternate theory of liability was adopted in Conley. Thus, they contend that the applicable four-year statute of limitations did not begin to run until the date when this Court’s decision in Conley was issued. Defendants posit that Conley adopted a new theory of liability rather than a new cause of action. Thus, they contend that the four-year statute of limitations began to run on the date when the plaintiffs knew or should have known of their injuries.” …
… continue reading the full paper WOOD v. ELI LILLY & CO. on Leagle.