2004 DES Case: Albers v. Eli Lilly & Company


“More than a decade after she was diagnosed with a malformed uterus that the physician attributed to her mother’s ingestion of DES, Katherine Albers filed this tort action seeking damages from the drug’s maker, Eli Lilly & Company. Lilly invoked the statute of limitations, which (the parties agree) is supplied by the local law of the District of Columbia because the suit was filed there and then transferred to Illinois under 28 U.S.C. § 1404(a). The District of Columbia’s rule has been authoritatively stated:

ALBERS v. ELI LILLY & CO., Leagle, 2004998354F3d644_1941, United States Court of Appeals, Seventh Circuit, January 6, 2004.

In every case, the plaintiff has a duty to investigate matters affecting her affairs with reasonable diligence under all of the circumstances. Once the plaintiff actually knows, or with the exercise of reasonable diligence would have known, of some injury, its cause-in-fact, and some evidence of wrongdoing, then she is bound to file her cause of action within the applicable limitations period, measured from the date of her acquisition of the actual or imputed knowledge.

Albers concedes that she knew both her injury and its cause well outside the period of limitations (three years, see D.C.Code § 12-301(8)) but denies that she had “some evidence of wrongdoing” until 1999 or 2000 when she saw in a newspaper an attorney’s advertisement about DES. The district court granted summary judgment to Lilly, holding that, even if Albers lacked actual awareness until then, reasonable diligence would have led a person to commence investigation in 1991 — the year her doctor diagnosed her as having a “classic T-shaped, DES exposed uterus” — and that even a modest investigation would have turned up “some evidence” that administration of DES to pregnant women could cause defects in their daughters’ reproductive systems. That made the suit untimely.

On appeal, as in the district court, Albers’s principal submission is that until 1999 or 2000 she was ignorant of any potential wrongdoing. ” …

… continue reading the full paper ALBERS v. ELI LILLY & CO., on Leagle.

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