Statutes of limitations: the special problem of DES suits

In 1971 diethylstilbestrol (DES) was found to be responsible for a rare type of vaginal cancer in a small number of daughters of mothers who took this drug during pregnancy. Subsequently, medical studies determined that DES exposure can be responsible for other vaginal abnormalities in the daughters, some of which may be precancerous. Consequently, many lawsuits were filed by these daughters against DES manufacturers.

Many DES suits may be barred by statutes of limitations, both because the number of years between the daughters’ exposure to DES in utero and the discovery that DES can cause injuries exceeds the statutory period, and because the cancer or other injuries caused by DES may not develop for many additional years.

The statutes of limitations questions raised by DES suits are examined and the applicability of both a discovery rule and provisions that postpone the running of the statutory period for minors is analyzed.

This Note discusses two methods that DES plaintiffs may be able to use to overcome the potential statutes of limitations bar:

  1. the discovery rule,
  2. and state provisions which toll the statute of limitations for minors.

Statutes of Limitations: The Special Problem of DES Suits, American Journal of Law & Medicine, 7(1):91-106, 1981.

A discovery rule provides that a cause of action accrues when the plaintiff discovers, or through reasonable diligence should have discovered, the injury. It developed out of a recognition of the unfairness inherent in permitting statutes of limitations to run from the time of the negligent act, when the injury was not, and could not have been, discovered until considerably later. The rationale behind the use of a discovery rule is the same in all cases: it is unfair to bar the claim before the plaintiff could have known that her cause of action existed. The expanded discovery rule provides that a cause of action does not accrue, and the statute of limitations does not begin to run, until the plaintiff reasonably should have discovered all of the essential elements of her cause of action. To maintain a cause of action, a DES plaintiff must establish that she was injured and that the defendant’s product caused her injury. Under expanded discovery rule, the statute of limitations should operate to bar only a plaintiff who, after learning that she was injured, and that DES is the cause of her injury, failed to initiate a suit within the statutory period.

The courts should examine each case individually before deciding when the cause of action has accrued. If a plaintiff was a minor when her cause of action accrued, and if the state has a provision that tolls the statue of limitations for minors, the plaintiff may be able to bring her suit by taking advantage of the tolling provision.

The Note contends that courts should apply an expanded discovery rule to DES suits to avoid the unfair result of barring a claim before the plaintiff could have known that she had a cause of action. In addition, the Note argues that the injury which causes the statute of limitations to begin to run in DES suits should not be rigidly defined. Finally, the Note urges that courts allow eligible DES plaintiffs to take advantage of applicable state provisions that toll the statute of limitations for minors.

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