The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
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 DENIED and that a genuine issue of material fact exists as to the statute of limitations on the plaintiff's discovery of her injury caused by defendant's product.
Plaintiff Tammy Lynn Reeves brings a products liability action against defendant Eli Lilly and Company asserting five counts for negligence, strict liability, breach of warranty, misrepresentation, and punitive damages. Specifically, she alleges exposure in utero on or about 1970-1971 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 infertility as well as physical and mental pain. Plaintiff Tammy L. Reeves Complaint ("Complaint"), No. 3, 4. Defendant Lilly manufactured, sold, and distributed DES nationwide.*fn1 This lawsuit was filed on January 17, 2003.
For over three decades, doctors prescribed diethylstilbestrol to nearly five million women in the United States as a way to prevent pregnancy problems such as miscarriage. According to the St. Louis Post-Dispatch of April 3, 1997, "it was called a wonder drug when first developed 60 years ago."*fn2 But the synthetic estrogen also known as DES didn't work. Instead, according to several news articles published locally and nationally, "DES was linked to reproductive problems and cancers in daughters and abnormalities in some sons of women who took the drug" so reported the Florida Times-Union citing the National Cancer Institute.*fn3
Doctors stopped prescribing DES, "after the discovery of a rare reproductive tract tumor in teenage daughters of women who had taken the drug" reported the Patriot Ledger in 1999.*fn4 Research conducted in 1971 "linked in utero DES exposure to an unusual vaginal and cervical cancer" called clear cell adenocarcinoma (CCA), "showing up in young women" reported the Atlanta Journal-Constitution in 2003.*fn5 Although the drug was banned for pregnancy in 1971 and the "pharmaceutical [company] Eli Lilly removed... DES from the market in the summer of 1997," according to the newsletter "People's Medical Society" published in 1997,*fn6 "there are fears a third generation of DES babies will be affected" so reported the Sun-Sentinel in 1999.*fn7 The Florida Times-Union reported in 1999 that, "the National Cancer Institute says there currently is no evidence that grandchildren of women who took DES have higher health risks."*fn8
Although there are current medical studies underway to determine a link between initial DES exposure in daughters and to a third generation of female grandchildren, "decades of study on DES have revealed as many as 1 in 1,000 DES daughters may develop CCA, the vaginal/cervical cancer, and that their ability to become pregnant and sustain pregnancies may be impaired," so reported the Atlanta Journal-Constitution.*fn9 There is a 30 percent risk of breast cancer among mothers who took the drug and making this a complicated issue is the fact that no medical test exists to detect DES exposure, according to this same news article. Because "few clues exist to help anyone figure out whether they are part of the DES generation" the Atlanta Journal-Constitution reported in 2003 that the Centers for Disease Control and prevention spent $1 million in a national public awareness and information campaign "in the hopes of alerting or reminding mothers and their offspring born between 1938 and 1971 of possible health risks."*fn10
On or about 1970 and 1971, plaintiff's mother allegedly bought and ingested DES while living in Illinois. Prior to birth, plaintiff's mother took the drug prescribed by her doctor during pregnancy. Plaintiff's mother had been given large amounts of DES following twelve pregnancy losses. The plaintiff states defendant Lilly manufactured the DES she was exposed to in utero. Tammy L. Bennett was born in Illinois on February 26, 1971. (Complaint, No. 3 and Defendant Memorandum, No. 2).
Plaintiff first became aware that her mother took DES during pregnancy in the fall of 1987.*fn11 At age 16, Tammy Lynn Bennett consulted an Obstetrician & Gynecologist located in Delaware, Ohio complaining of pelvic pain for several months, progressively getting worse. By the time the plaintiff came to visit Dr. Carolyn Hixson, plaintiff had a history of an "inflamed colon" diagnosed by Barium Enema.*fn12 She had also suffered from kidney inflammation, having been examined by an exploratory laparoscopy revealing "scar tissue" in her abdomen.*fn13 Dr. Hixson notes in her diagnosis that plaintiff's medical history is noteworthy because her mother took DES during pregnancy, pointing out both her mother and aunt had breast cancer.*fn14
Dr. Hixson performed several exams on the plaintiff in October of 1987, including breast, abdominal, pelvic, and cervix exams. Although the breast, abdominal, and pelvic exams were diagnosed as normal, Dr. Hixson stated to Dr. Robert Caulkins, who appears to be plaintiff's family doctor at the time, that "the cervix did show extensive adenosis covering the ecto cervix which would be consistent with the history of DES exposure."*fn15 As Dr. Hixson found, "no specific abnormalities were detected which would have contributed to her pain."*fn16 At that time, Dr. Hixson referred plaintiff to Dr. Grant Schmidt, who was an infertility and endocrinology specialist who had a special interest in DES patients. The importance of seeing such a specialist was out of future concerns, "particularly when [Tammy L. Bennett] becomes desirous of pregnancy."*fn17 Meanwhile, Dr. Hixson treated the pelvic pain conservatively, placing plaintiff on birth control pills and a nonsteroidal antiflammatory agent Motrin.
Several months later, Dr. Schmidt reported back to Dr. Hixson that she had examined the plaintiff referred for antenatal DES exposure.*fn18 Along with her mother, Dr. Schmidt discussed the various potential problems Tammy could face, especially the vaginal adenocarcinoma findings. Because Dr. Schmidt was concerned that the peak incidence of such finding was between the 16-20 age range, he recommended bi-yearly Pap smear exams and a colposcopy at least once a year.*fn19 During plaintiff's visit with Dr. Schmidt, they also talked about "vaginal structural abnormalities, uterine and tubal alterations, and the potential difficulties during pregnancy."*fn20 Dr. Schmidt suggested plaintiff's mother get a mammogram.
Plaintiff continued to suffer from pelvic pain for several months, finally requesting a "definitive diagnosis in the form of diagnostic laparoscopy" surgery.*fn21 Dr. Hixson informed the 16-year-old Tammy Bennett that she could have a tilted uterus, explaining that the uterus wasn't sitting in the proper normal area in the pelvic region. When asked by defendant's counsel during deposition whether or not that diagnosis could be due to DES, plaintiff answered, "No, [Dr. Hixson] said it was common." (Reeves Tr. at 63) Upon inspection of the pelvic organs, the uterus was found to be entirely normal. The left ovary and fallopian tube, as well as the right fallopian tube, were also normal. According to Dr. Hixson's operative report, "along the right pelvic side wall, behind the right ovary was found to have several small endometrial implants on the surface."*fn22 The uterus, left ovary and both fallopian tube were found to be normal. The postoperative diagnosis revealed plaintiff's pain had been caused by a stage 1 mild endometriosis. During the diagnostic laparoscopy, Dr. Hixson used a cautery to seal the infected endometriosis tissue.*fn23 It is not clear whether it was before or after the surgery, but Dr. Hixson explained to Ms. Bennett at that time that endometriosis could cause a problem in the future. Plaintiff recalls Dr. Hixson telling her endometriosis could block the fallopian tubes, preventing a fertilized egg from going through. (Reeves Tr. at 71)
Several years passed between Tammy Lynn Bennett's endometriosis surgery as a teenager and her awareness as an adult about lawsuits linking DES to cancer. In 1994, plaintiff living in Washington State at that time read a local newspaper article about a DES-exposed woman who had cancer related to DES exposure. (Reeves Tr. at 125 ). Plaintiff called the attorney who was mentioned in the article several months later to inquire about her own health. Apparently, plaintiff had gone to the doctor and "had a bad Pap smear, came back abnormal, and it scared me because my Pap smears up until then were normal."*fn24 (Reeves Tr. at 126). Rather than talking with the attorney, Leroy Hersch, plaintiff spoke with his secretary, and a questionnaire packet was mailed to her.*fn25 The questionnaire, containing general questions about family and personal medical histories, was mailed back to the attorney. By the time plaintiff filled out the questionnaire on February 20, 1994, she had been married just over four months.*fn26
Eli Lilly asserts that the twelve-page questionnaire (actually 11 pages) "includes six pages of questions concerning plaintiff's medical history...5 pages devoted to questions concerning abnormalities of the reproductive system."*fn27 Plaintiff was asked about her menstrual history, such as "age at onset of period (12 yrs.)" and "any history of spotting between periods (Yes)" as well as "Irregular menstrual history (Yes) [but] 6 weeks or more between periods (Don't think so)" and finally "painful, severe cramps (Yes)." When asked about "Vaginal and/or Cervical Abnormalities" she answered "yes" to a question regarding "heavy, continuous discharge" and "possibly" to the question "abnormal lining and/or mucous in vagina?" When asked about any surgery, adenosis, treatment for cancer, abnormalities with the cervix or uterus -- including T-shaped uterus and other malformations -- plaintiff left the questionnaire blank. When asked about her ovaries and tubes, such as ovarian cancer, failure to ovulate, ectopic pregnancy, and tube malformation, she left the questions unanswered. Plaintiff was also asked about her pregnancy history. When asked about the number of pregnancies, neonatal deaths, live births, still births, and miscarriages, she answered by writing "0" in the blanks. Otherwise, when asked about spontaneous abortions, infertility problems or labor complications, the plaintiff left the questionnaire blank. Finally, when asked about any urinary tract abnormalities, again the plaintiff left the questionnaire blank. Although defendant's summary judgment motion states "questionnaire asks specifically about plaintiff's infertility problems and the shape of her uterus," defendant failed to mention plaintiff's unanswered portions.
After returning the filled out questionnaire back to the law offices of Hersh & Hersh, Attorney Leroy Hersh mailed Tammy Lynn Bennett (Reeves) back on June 1, 1994 stating he didn't find any immediate problems with the plaintiff that "merit filing a lawsuit on your behalf."*fn28 The attorney did advise plaintiff that if any additional problems developed in the future, Mr. Hersh suggested Tammy Reeves "contact a lawyer as soon as it is confirmed that they are related to DES"*fn29 including any other pathology or confirmed infertility problem. Mr. Hersh also suggested that plaintiff gather together her mother's gynecological records.
Plaintiff did not see any doctors or get an annual medical checkup until October of 1998 when she began her visits with Dr. Gretchen M. Lentz, plaintiff's attending physician at the Department of Obstetrics & Gynecology at the University of Washington Medical Center in Seattle, Washington. The plaintiff obtained Dr. Lentz's name through a DES hotline. At that time, she belonged to an online women's support group by the time she visited Dr. Lentz.*fn30
The reason for her initial visit was "to get a thorough DES exam and some questions answered."*fn31 Some of the problems she listed on the "History Form" included arthritis, kidney and bladder problems, thyroid, and bowel problems. She informed Dr. Lentz that her past surgeries included an endometriosis/laparoscopy and a severe kidney infection. She also wrote down all the medical information previously described, including her mother's talk at age 13 about plaintiff being a DES baby and being told she had a T-shaped uterus, or "tilted."
The medical resident who initially examined the plaintiff, Dr. Kristen Whiting, listed under the significant problems/diagnosis section, the major reasons and recurring problems as to the plaintiff's visit: 1) endometriosis, 2), irritable bowel, 3) DES exposure in utero, and 4) infertility.*fn32 When discussing her DES exposure, the doctor wrote down plaintiff suffered from bi-monthly periods, with lots of bleeding and pain. When discussing her concerns about infertility, the medical records show this was a concern related to her previous problems of endometriosis. Although plaintiff informed Dr. Lentz that previous doctors told her she had a T- shaped ...