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July 28, 1982

Patricia Brogan DAWSON, et al., Plaintiffs,
ELI LILLY AND COMPANY, et al., Defendants

The opinion of the court was delivered by: GREEN


Defendants Eli Lilly and Company, Abbott Laboratories, E.R. Squibb & Sons, Inc., and Upjohn Company have moved for summary judgment and to dismiss the complaint on the basis of the statute of limitations. The undisputed facts are as follows. In 1973, when plaintiff was seventeen years old, her mother read an article in the newspaper about diethylstilbestrol (DES) and its effects on the daughters of women who took the drug during pregnancy. She then ascertained from her obstetrician that she had taken DES during her pregnancy with the plaintiff. That same day, she discussed these matters with her daughter, and about two weeks later, plaintiff was taken to a Dr. Marlow for a gynecological examination. Dr. Marlow diagnosed plaintiff's condition as cervical adenosis. At that time, plaintiff took a pamphlet on DES from a table in the doctor's office. Pltf."s Deposition at 40-45. Dr. Marlow also told plaintiff at the first visit that there are cases where cancer has developed from taking DES. Pltf."s Deposition at 90-91. Since that time, plaintiff has continued to visit Dr. Marlow two to four times a year for check-ups related to her adenosis and to determine whether any cancer cells have developed. Deposition at 56-58, 89.

 Thus, although the record does not reveal directly that plaintiff was informed that her condition was or might be a result of her mother's ingestion of DES, it is clear from the circumstances surrounding the diagnosis of her adenosis that she was aware at that time of a possible connection between her condition and DES. She was taken to the doctor precisely because her mother had discovered that she had taken DES during her pregnancy with plaintiff, she picked up DES pamphlets in the doctor's office, and the doctor told her that cancer had been known to develop "from taking DES." She was subsequently checked regularly for the possible development of cancer. Plaintiff admits that she knew, as early as 1973, "of the possibility of a causal nexus" between DES and her condition, but states that she was not told of a "clear and certain causal relationship" at that time. Plaintiff's Opposition to Motion for Summary Judgment at 6.

 It is agreed that District of Columbia law applies to this question. See Manatee Cablevision Corp. v. Pierson, 433 F. Supp. 571 (1977). Until 1978, the age of majority for statute of limitations purposes in the District of Columbia was 21 years of age. Plaintiff turned 21 on December 4, 1976. The statute of limitations for a claim for personal injury based on negligent manufacturing, products liability, breach of warranty and misrepresentation, (Counts I-IV of the Complaint), is three years. D.C.Code § 12-301(8). Defendants claim that Count V, intentional infliction of emotional distress, is governed by the one year statute of limitations applied to libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment under D.C.Code § 12-301(4) because it is an intentional tort. Plaintiff does not dispute the limitations periods claimed by defendants, but asserts that she did not discover information essential for the accrual of her claim until November, 1980, which is less than a year before she filed this claim. Defendants argue that since plaintiff knew of both her injury and its connection to DES since before her 21st birthday, the statute began to run on December 4, 1976, and expired for all her claims on December 4, 1979. This case was brought June 5, 1981.

 Plaintiff makes two arguments in opposition to defendants' motions. First, she did not know of a "clear and certain causal relationship" between DES and her condition. Defendants' representatives have testified as recently as 1981 in various depositions to the effect that there is no certain relationship between ingestion of DES by pregnant women and adenosis or malformation of the sexual organs of their offspring, or that their companies take no position on the question. Plaintiff argues that if defendants' experts in 1981 did not know of a causal link, it cannot be decided as a matter of law that she should have known of the causal link before June 5, 1978. Secondly, plaintiff argues that District of Columbia law requires not only a knowledge of the injury and its cause, but also knowledge of some wrongful conduct on the part of the defendant, to begin the running of the statute of limitations. Plaintiff has submitted an affidavit to the effect that she was unaware until November, 1980 that at the time of her gestational period, DES was "marketed without adequate testing as to its safety nor efficacy (to prevent abortion) ...". Defendant argues that knowledge of wrongful conduct is not necessary to begin the limitations period.

  The parties agree, although they differ as to its requirements, that a "discovery" rule applies to this action under District of Columbia law. That is, the cause of action accrues for limitations purposes not when the injury first occurred, (here, in plaintiff's gestational period), but when plaintiff discovered, or by the exercise of due diligence should have discovered, the facts giving rise to her claim. Jones v. Rogers Memorial Hospital, 143 U.S. App. D.C. 51, 442 F.2d 773 (D.C.Cir.1971); Kelton v. District of Columbia, 413 A.2d 919 (D.C.App.1980); Burns v. Bell, 409 A.2d 614 (D.C.App.1979); Grigsby v. Sterling Drug, Inc., 428 F. Supp. 242 (D.D.C.1975), aff'd without opinion, 543 F.2d 417 (D.C.Cir.1976), cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). Exactly what those facts are has not been precisely defined in the District of Columbia. Rather, each case appears to refer to the elements of the cause of action which were belatedly discovered under the particular circumstances. In Jones v. Rogers Memorial Hospital, the court held that the statute of limitations did not begin to run at the time of allegedly negligently performed surgery, but rather when the injury caused by the surgery was discovered. The plaintiff's discovery of the causal relationship between the surgery and the injury, or between the injury and defendant's negligence were not discussed, likely because these facts were evident at the time of the discovery of the injury. Kelton v. District of Columbia involved an alleged unconsented tubal ligation performed during a Caesarean section delivery. The court held that the statute began to run at the time plaintiff was told that surgery had revealed scars on the Fallopian tubes indicating that either a deliberate tubal ligation or surgical trauma might have occurred at some time in the past. Again discovery of a causal connection with defendant's conduct, or of a possibility of wrongdoing on the part of the defendant were not discussed. However, the only possibility for a later accrual date that appears to have been raised is the time when plaintiff received her medical records concerning the Caesarean procedure from the hospital, which revealed that her consent forms did not cover a tubal ligation and that there were no signs of medical emergency requiring one. Although the opinion does not state exactly why that later date was rejected, it is logical to assume that the court considered plaintiff's discovery that a surgical procedure she had neither desired nor requested may have been performed was enough to put her on notice that "she might have suffered an actionable injury," 413 A.2d at 921, i.e. that wrongdoing was involved, without the additional information from the hospital records.

 Where a plaintiff knew that her injuries were caused by defendant's surgery, but claimed to have believed for several years that they were a natural or usual after-effect of the surgery, the District of Columbia Court of Appeals held that the time of discovery was a jury question. Burns v. Bell. Plaintiff in that case experienced numbness and pain and continued to have scars several years after the performance of a facelift operation. Her doctor repeatedly reassured her, however, that she was progressing satisfactorily and would continue to improve. It was not until she saw the results of a similar operation on a friend some five or six years after her initial operation that she concluded that she had not healed properly. The court stated that a jury could find that the statute did not begin to run until that time, because plaintiff, who lacked medical expertise, had no way of knowing whether her doctor's assurances were reasonable. Although the Burns court did not phrase it this way, plaintiff already knew of her injuries and their causation but did not know that they were a result of malpractice, i.e. defendant's wrongdoing.

 The discovery rule as applied to a drug products liability action was phrased in the following manner in Grigsby v. Sterling Drug, Inc.:

The statute of limitations on each of the causes of action begins to run from the time plaintiff learned, or in the exercise of due diligence could have learned, that her injuries were not simply misfortune, but resulted from an undisclosed defect in defendants' product.

 428 F. Supp. at 243. Summary judgment based upon the statute of limitations was granted in Grigsby despite the fact that "these are issues which must be left to the trier of fact in all but the most exceptional cases," Id., because plaintiff was told in 1968 that her hearing loss was most likely caused by defendant's drug, and as a doctor herself, at that point plaintiff could have, but did not, further explore the technical issues involved. Plaintiff had not discovered any new information since 1968 which enabled her to bring the lawsuit. Discovery of possible negligence on the part of the drug manufacturer was not discussed or alleged to have occurred at a later date than discovery of causation.

 Plaintiff's first contention, that her knowledge of the possible connection between DES and her injuries was not sufficient to determine as a matter of law that she had discovered the causal relationship more than three years before she brought this suit, does not withstand scrutiny. The court has found no case, in this jurisdiction or elsewhere, which holds that a plaintiff must have clear and certain knowledge of a causal relationship before the statute begins to run. Further, a defendant's continuing denial of the causal relationship has been found to delay the accrual of the cause of action only where the plaintiff claims to have relied on that denial, as where a patient relies upon her doctor's advice or a consumer relies upon a drug manufacturer's representations as to safety. No such claim is made here. In fact, plaintiff does not claim to have received any information that tended to dispute the relationship between DES and her condition at any time. If the statute of limitations did not begin to run merely because a plaintiff who knew of a possible causal relationship and did not rely on any representations to the contrary did not have certain knowledge of causation, no claim where causation could be disputed would ever accrue. This is illustrated by the instant case, where under plaintiff's argument, her cause of action has not yet accrued. She does not claim to have yet discovered certain knowledge of causation, and defendants have stated that they intend to dispute causation at trial. As long as causation is a disputed issue, a plaintiff could claim not to have "certain" knowledge, and the statute would never run. Obviously, this is not the intention of a discovery rule. The record presented supports the conclusion that, as a matter of law, plaintiff discovered the connection between DES and her injuries sometime in 1973, and that the disability of her minority for statute of limitations purposes was removed in 1976, when she reached 21 years of age.

 The question still remains as to whether plaintiff's claimed ignorance of any wrongdoing on the part of defendants could have prevented the action from accruing until 1980. Defendants characterize this argument as a requirement that plaintiff have knowledge of the legal significance of defendants' actions before the statute begins to run, and claim that such a contention is novel and foreclosed by District of Columbia precedent. We disagree. Although the question has not been precisely raised or addressed by the District of Columbia courts, several other jurisdictions have held that knowledge or imputed knowledge of wrongdoing, (although not necessarily legal liability), on the part of defendant is necessary to the accrual of an action under a discovery rule. Especially in the medical field, plaintiffs may lack the expertise to know whether the ill effects they have suffered are a result of someone's wrongdoing, or merely an expected result, or inevitable or unforeseeable risk of their treatment. Since the purpose of a discovery rule is to prevent the accrual of a cause of action before a plaintiff can reasonably be expected to know that he has a cause of action, the statute should not begin to run until he knows, or through the exercise of due diligence, should know, that his injury is the result of someone's wrongdoing. The Michigan Supreme Court in Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170 (1977), characterized the discovery rule in a drug injury case as the concept that a cause of action does not accrue until the plaintiff knows or should reasonably know of the causal connection between his injury and the defendant's wrongdoing. Although that case involved only the issue of the discovery of the causal connection between the injury and the drug, the court's language was later used to reject an application of the discovery rule which did not require discovery or a reasonable opportunity to discover, in addition to the adverse reaction to the drug, the wrongful nature of a defendant's conduct. Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 378 A.2d 1138 (1977). Otherwise, the court stated, a plaintiff's cause of action could be barred before he has had a reasonable opportunity to discover that it exists. Similarly, the Washington Supreme Court, in an en banc decision, held that a plaintiff who had known since early childhood that her blindness was caused by too much oxygen in the incubator she was placed in as a premature baby was not barred as a matter of law from bringing a suit many years later. Plaintiff claimed to have discovered, within the limitations period, that a school friend with the same injury had brought a lawsuit, after which she contacted an attorney and learned for the first time that she had not needed as much oxygen as had been administered in her infancy, and that her sightlessness could have been prevented. Plaintiff had long been aware of her injury and its cause, but the court held that there was a factual issue as to when she knew or should have known that her blindness was a result of the hospital's breach of duty. The same reasoning was applied to plaintiff's products liability claim against the manufacturer of the incubator. Ohler v. Tacoma General Hospital, 92 Wash.2d 507, 598 P.2d 1358 (1979) (en banc ).

 The New Jersey discovery rule involves two key elements, injury and fault. Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981). Since medicine is not an exact science, and doctors are not guarantors that no unfavorable consequences will result from their treatments, plaintiffs cannot always be expected to know that adverse consequences from treatment are the result of malpractice. "A claimant should not be penalized because he has had the complicating misfortune of not realizing that he has in fact been victimized by a tortfeasor ...". Id., 424 A.2d at 1175. The Third Circuit applied New Jersey law to a drug products liability case in Goodman v. Mead Johnson & Co., 534 F.2d 566 (3rd Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). Even though plaintiff knew that there might be a relationship between her thrombophlebitis and defendant's birth control pill, the court denied summary judgment, holding that such knowledge was not identical with knowledge of an actionable claim against the manufacturer for negligent testing or compounding or for failure to warn of known hazards. Plaintiff may have concluded that although defendant adequately tested the drug and warned against all known hazards, its use in the circumstances of her particular condition was inadvisable. Although strong inferences might be drawn as to her state of knowledge, such inferences should be left to the trier of fact.

 The Colorado Supreme Court has also held that a medical malpractice claim does not accrue until the plaintiff knows or should know that negligence was involved. This is true whether or not the doctor has led the patient to believe that his actions were proper. Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970). The rule in Arizona malpractice cases is likewise that plaintiff must have discovered defendant's negligence before the statute begins to run. Abernethy v. Smith, 17 Ariz.App. 363, 498 P.2d 175 (1972). The Hawaii discovery rule has been formulated as: "the statute does not begin to run until the plaintiff knew or should have known of defendant's negligence." Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967) (Negligent misdiagnosis). In Illinois, a cause of action in a products liability case was held to accrue when plaintiff knew or reasonably should have known of an injury and also that the injury was caused by the wrongful acts of another. Plaintiff need not be aware of legal negligence, however. When he discovers wrongful causation, it is his duty to inquire into whether he has a cause of action. Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52, 52 Ill. Dec. 1, 421 N.E.2d 864 Ill.Dec. 1, (1981). See also, Knox ...

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