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Roberge v. Eli Lilly and Co.

March 11, 2005

CHRISTINE M. ROBERGE PLAINTIFF
v.
ELI LILLY AND COMPANY DEFENDANT



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

This matter comes before the court on defendant's motion for summary judgment. Upon consideration of the parties' filings, the applicable law and the facts of this case, this Memorandum Opinion finds that the defendant's motion for summary judgment should be GRANTED as a matter of law having demonstrated that plaintiff's cause of action is barred by the three-year statute of limitations under the District of Columbia discovery rule.

I. Introduction

Plaintiff Christine M. Roberge brings a products liability action against defendant Eli Lilly and Company asserting four counts for negligence, strict liability, breach of warranty, and misrepresentation, seeking Two Million Dollars ($2,000,000.00) as compensatory damages, plus costs. Specifically, she alleges embryonic exposure to DES, on or about 1955 or 1956 to the prescription drug diethylstilbestrol (DES). As a result of plaintiff's exposure to DES in utero, she allegedly suffered injuries, including, but not limited to, uterine and cervical malformations with resulting miscarriages, ectopic pregnancies and infertility, incurred medical expenses for care and treatment, and suffered physical and mental pain and suffering. Plaintiff Christine M. Roberge Complaint ("Complaint"), at No. 3, 4. Defendant Lilly states that it did manufacture, sell certain dosages of DES, as well as distribute DES in the District of Columbia. Lilly also states that it is doing business in the District of Columbia, that the U.S. Food and Drug Administration ("FDA") is headquartered in the District of Columbia, and that the FDA approved Lilly's sales of DES and declared that the drug was generally recognized as safe by experts in the field for the uses at issue here. Defendant Eli Lilly and Co.'s Answer to the Complaint ("Defendant's Reply"), at No. 2, 8. This lawsuit was filed on April 22, 2003.

II. Background

Plaintiff Christine M. Roberge was born in Schenectady, New York on May 3, 1956. Transcript of Christine M. Roberge Deposition ("Roberge Tr.") at 5. Plaintiff attended Maria College in Albany, New York, studying to be a medical office assistant, receiving an Associate's Degree in Applied Science. During her two years in college, she studied theology, English, Biology, and medical terminology. Roberge Tr. at 14-16. After graduating in 1978, she began her career as an office assistant at the first of two obstetrics and gynecology medical offices. The first medical practice consisted of four doctors -- Brown, Cioffi, Seftel, and Soni. Some of her responsibilities during her eight years at the first OB/GYN medical practice included checking patients, making up their charts, and scheduling surgery. Roberge Tr. at 16-17. Plaintiff changed jobs in 1988, and began working for the medical offices of Drs. Linda Leavenworth and Frederick Lea, both OB/GYN practitioners. Plaintiff worked at this medical office through November of 1993. In both instances, plaintiff's medical working colleagues were also her OB/GYN personal doctors. Roberge Tr. at 19, 30, 69.

Plaintiff first became aware in the late 1970's that her mother allegedly took diethylstilbestrol (also known as "DES") during her pregnancy with her. Complaint at No. 3 and Plaintiff Christine M. Roberge's Answers to Defendant Eli Lilly and Co.'s First Set of Interrogatories ("Interr.") at No. 10. Plaintiff states that she became aware about the ill effects of DES when she first sought gynecological examinations from one of the OB/GYN physicians who worked in her office.*fn1 Dr. Soni told plaintiff "that there was some atypical changes on my cervix and wanted to know if I could find out if my mother had taken DES." Roberge Tr. at 28. The plaintiff asked her mother whether or not she had taken the DES during her pregnancy, and she responded affirmatively. Dr. Soni explained DES could contribute to cervical cancer and that plaintiff needed to be diligent in having yearly Pap smears. Roberge Tr. at 30. Ms. Roberge never contracted cancer.*fn2

Plaintiff married in 1984 and both she and the husband began planning on having a family a few years into the marriage. Plaintiff was unable to become pregnant right away and after a year of trying to have a baby, the couple sough treatment from Dr. Fouad A. Sattar. Roberge Tr. at 63. Dr. Sattar performed a postcoital test and hysterosalpingogram ("HSG") in the fall of 1986, when plaintiff was 30 years old.*fn3 The medical imaging report done at the request of Dr. Sattar states a "normal appearing hysterosalpingogram."*fn4 In the spring of 1987, Ms. Roberge became pregnant, but upon examination later that summer, Dr. Sattar diagnosed plaintiff as having miscarried for the first time.*fn5 Plaintiff continued to seek medical treatment from Dr. Sattar, being diagnosed with infertility in April 1988. Unfortunately, two months later, plaintiff once again miscarried for the second time. Interr. at No. 13. Plaintiff states these pregnancy losses were not a concern at all to her. She consulted with Dr. Sattar about becoming pregnant again, being told to wait a couple of months before trying. After this second pregnancy loss, plaintiff insists she did not undergo any immediate exam or treatment to try to explain what had happened, or what her chances would be of having a successful pregnancy in the future. Roberge Tr. at 69

Although she was receiving medical attention from Dr. Sattar in 1988, plaintiff began to visit with another OB/GYN, Dr. Linda Leavenworth. Dr. Leavenworth was also one of two doctors that Ms. Roberge worked for from 1988-1993, as an office staff member in this obstetrical and gynecology medical practice. Plaintiff was working for Dr. Leavenworth at the same time she was a patient. Roberge Tr. at 101. Previously, plaintiff had worked for eight years at another OB/GYN office checking in patients, making up their charts, and scheduling surgery. Id. at 17, 19, and 69. Plaintiff saw medical records of other patients who were DES exposed, while working for an OB/GYN office. Id. at 112. Plaintiff states she never talked to the office doctors about what might have caused her pregnancy losses. Id. at 101.

Dr. Leavenworth diagnosed plaintiff with a right ectopic pregnancy in December of 1988, requiring right partial salpingectomy surgery.*fn6 Interr. at No. 13, 15. In June of 1989, Ms. Roberge underwent a second HSG performed by Dr. Leavenworth. The radiological report indicates that the "uterus [was] not well filled for evaluation."*fn7 Plaintiff testified that after three pregnancy losses (two miscarriages, one ectopic pregnancy), she was concerned, stressed, and upset. Roberge Tr. at 75. Dr. Leavenworth encouraged plaintiff to move on and continue trying. As her personal physician and OB/GYN office mate, she recommended Ms. Roberge seek treatment from a fertility specialist. Id. Ms. Roberge began seeing Dr. Selwyn Oskowitz, a reproductive endocrinologist, several months later.

Dr. Selwyn Oskowitz performed tests on Ms. Roberge in order to find out what had caused the repeated pregnancy losses.*fn8 Once all the tests relating to plaintiff's repeated miscarriages were completed, Dr. Oskowitz told Mr. and Mrs. Roberge that the results returned as normal. Dr. Oskowitz wrote, "although two miscarriages have occurred, we do not have an explanation on which to base any active treatment (for the miscarriage)."*fn9 Despite the fact that plaintiff wrote in her medical history chart that she had been exposed to DES, Dr. Oskowitz did not say anything to plaintiff about DES or mention the term. Roberge Tr. at 78. One possible problem considered by the infertility specialist related to Mr. James Roberge's sperm. He was referred to urologist.

At the same time that Ms. Roberge received Dr. Oskowitz's letter on September 1, 1989, plaintiff's history indicate she had her last menstrual period on September 2, 1989. Unfortunately once again, Ms. Roberge was diagnosed with a left ectopic pregnancy on October 1, 1989 requiring a linear salpingostomy. Interr. at No. 13, 15. Dr. Oskowitz operated on Mr. Roberge for her October 1989 ectopic surgery. In the Discharge Statement connected with the ectopic pregnancy surgery that Dr. Oskowitz completed, his diagnosis at the time was the following: "F tubal isthmic ampullary pregnancy, and diethylstilbestrol exposure." Transcript of Dr. Selwyn P. Oskowitz, M.D. ("Oskowitz Tr.") at 28. According to Dr. Oskowitz, the reason why he included "diethylstilbestrol exposure" as a secondary diagnosis was because "[i]t was known at that time that DES exposure carried a risk factor for ectopic pregnancy." Id.

On January 12, 1990, Dr. Oskowitz performed a third "HSG" of Ms. Roberge and discussed the results of the HSG with her. Roberge Tr. 78. Dr. Oskowitz told plaintiff that she had a slight change in her uterus. Id. Plaintiff was advised by Dr. Oskowitz that in utero DES exposure had some effect on the development of her reproductive tract, diagnosing Ms. Roberge with a uterus that was T-shaped. Interr. at No. 10(b), 13(g), Oskowitz Tr. at 20-21 and Roberge Tr. at 79. Plaintiff asked Dr. Oskowitz what he meant by a slight change in her uterus, recalling the infertility specialist didn't go into details but did tell her "there was a change and that we would go on to the next cycle of IVF (in vitro fertilization)." Roberge Tr. at 79. Plaintiff states Dr. Oskowitz said "it shouldn't have any effect on future pregnancies." Id. at 78. However, the plaintiff recalls Dr. Oskowitz saying that the uterus had the effects of DES but she did not know what DES effects on the uterus were. Id. at 79. Ms. Roberge says she was "concerned with the fact that would this have any impact on getting pregnant again." Id.

As Dr. Oskowitz recalls, it was his view that the slightly T-shaped uterus as he described it to Ms. Roberge was the cause of the first trimester pregnancy losses. Oskowitz Tr. at 20-21. Dr. Oskowitz states, "I would have confirmed with [plaintiff] that the DES has had an impact on her uterus, and that it has and will influence the prognosis of having a term pregnancy." Id at 33. According to Dr. Oskowitz, the prognosis for becoming pregnant was negative, making IVF treatments more difficult, more prolonged, more complicated, and "will increase the chance that she'll have no term pregnancy." Id. Despite these discussions with Dr. Oskowitz, Ms. Roberge did nothing to find out more about DES. Roberge Tr. at 90. In fact, at no time did Ms. Roberge do any research regarding DES. Id. at 116. Plaintiff states that "despite his deposition testimony, Dr. Oskowitz's own progress notes of July 26, 1990 -- which is after Ms. Roberge's ...


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