Abbott Lab. (In re New York County DES Litig.), 202 A.D.2d 6, 615 N.Y.S.2d 882 (1st Dep't 1994); In re DES Cases (Ashley v. Abbott Lab.), 789 F. Supp. 552 (E.D.N.Y. 1992). Defendants have not challenged plaintiffs' claims on this ground.
Applying the "place-of-injury" test does not answer the question of whether the cause of action in DES cases accrues, for borrowing statute purposes, at the place of exposure or at the place where the medical problem becomes manifest. The case law is muddy and conflicting. A fully satisfying synthesis of the existing precedents is impossible. On balance, for reasons to be explained, it is predicted that the New York Court of Appeals -- if it follows Stafford -- would find that a cause of action for DES accrues, for borrowing statute purposes, in the state (or possibly states) where the medical problems became manifest.
A review of the case law indicates a number of approaches that have been applied to determine when a cause of action accrues for borrowing statute purposes. Some overlap in fact although their language differs.
i. Place of encounter with harmful instrumentality
A number of cases have implicitly found that the cause of action accrues, for borrowing statute purposes, at the point of plaintiff's encounter with the instrumentality that did her harm. Under this formulation, the time and place of defendant's wrongful conduct, and the time(s) and place(s) where plaintiff's injuries were actually manifested and experienced, are irrelevant.
This is the approach that the lower courts, by and large, have adopted in DES and asbestos cases. See, e.g., Besser, 539 N.Y.S.2d at 736 n.3 (citing New York Court of Appeals cases not decided under the borrowing statute, and which predate the 1986 statutory amendments, for the proposition that "'injury,' if any, occurs at the time, and thus the place of exposure"); Fraser, N.Y.L.J., supra, at 29 (applying Besser, and holding that, for borrowing statute and other purposes, "unquestionably, plaintiff's claim accrued in Washington, where her exposure to DES occurred" rather than in New York, the state of her current residence and where her injuries were manifested); Culpepper v. Eli Lilly & Co., Index No. 115878/93, slip op. at 1-2 (N.Y. Sup. Ct. N.Y. County Mar. 14, 1995) (unpublished) ("The parties agree that plaintiff's cause of action accrued in North Carolina, where the exposure to DES occurred." (citing Besser)); Scalone v. Celotex Corp., 718 F. Supp. 215 (S.D.N.Y. 1989) (place of "exposure" to asbestos, rather than place plaintiff fell ill, held to be place of injury for borrowing statute purposes), aff'd without op., 923 F.2d 843 (2d Cir. 1990); cf. Keene Corp. v. United States, 700 F.2d 836, 843-44 (2d Cir. 1983) (admiralty jurisdiction does not extend to workers exposed to asbestos in land-based commercial facilities since situs of tort was not "navigable waters"), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983).
The New York Court of Appeals has never, in its own construction of the borrowing statute in personal injury cases, held that a claim accrued at a point before the harmful instrumentality acted upon the plaintiff.
ii. Place where injury is perceived
Other cases have found that the cause of action accrues, for borrowing statute purposes, at the point at which the plaintiff perceives his or her injury.
This is the approach applied in suits alleging economic harms, such as fraud actionable under section 10(b) of the Exchange Act. There, the cause of action accrues, for borrowing statute purposes, where the economic impact of defendant's conduct is "felt" or "suffered." See Block v. First Blood Assocs., 988 F.2d 344, 349 (2d Cir. 1993); Sack, 478 F.2d at 366 ("The cause of action accrues for the purposes of the borrowing statute in the state where the injury is suffered rather than where the defendant committed the wrongful acts."); Arneil v. Ramsey, 550 F.2d 774, 779 (2d Cir. 1977); Barsam, 864 F. Supp. at 1455; Avagliano v. Sumitomo Shoji America, Inc., 614 F. Supp. 1397, 1405 (S.D.N.Y.), recons. denied, 107 F.R.D. 748 (S.D.N.Y. 1985).
This is also, arguably, the approach that is typically adopted in traditional product liability actions -- i.e., those that do not involve substances with latent manifestations. See, e.g., Myers v. Dunlop Tire & Rubber Corp., 40 A.D.2d 599, 599, 335 N.Y.S.2d 961, 962 (App. Div. 1st Dep't 1972) (injury accrued for borrowing statute purposes in Kentucky (where a tire manufactured by defendant exploded) rather than in New York (where the tire was manufactured)); Nielson v. Avco Corp., 54 F.R.D. 76, 80 (S.D.N.Y. 1971) (injury accrued for borrowing statute purposes in Alberta (where the plane crashed), rather than in Pennsylvania (where defendant's plane engine was manufactured and installed) or British Columbia (plaintiff's and decedent's residence and the plane's final destination)).
It is possible to conceive of traditional products liability cases in terms of latency. Consider the passage of time from when the product was negligently designed or manufactured, or when inadequate warnings were attached, to when the product worked its physical harm on the plaintiff. In between is the moment when plaintiff first, and unknowingly, encountered the instrumentality which was later to cause his or her harm. That moment -- say, when plaintiff first used a forklift that only later malfunctioned, or drove on a defective tire that later exploded -- is not discussed or mentioned in the cases.
At least one case decided under New York law appears to have adopted a variation on the "place where injury is felt" approach in a case involving a toxic harm with a latency. See In re Joint E. & S. Dist. Asbestos Litig., 721 F. Supp. at 434 (applying New York's borrowing statute to a claim based on asbestos exposure, and concluding that "it seems clear that, where slowly developing personal injury claims . . . are concerned, this 'last event' is the fact of plaintiff's becoming ill."); cf. Renfroe v. Eli Lilly & Co., 686 F.2d 642, 647 (8th Cir. 1982) (noting, in applying another state's borrowing statute in a DES case: "When the cancer developed and became capable of ascertainment, the final element of the cause of action occurred, and their respective cause of action accrued under Missouri law."); Trahan v. E.R. Squibb & Sons, Inc., 567 F. Supp. 505, 507 (M.D. Tenn. 1983) (noting, in applying choice-of-law principles to determine what substantive law to apply in a DES case: "The 'last event' necessary to create liability is the development of the condition, not the exposure to a drug with latent detrimental effects.").
iii. Place where viable cause of action becomes possible
A formulation that appears to have some currency in the New York Court of Appeals construes "place of accrual" as the place where plaintiff first possessed a cause of action. See Martin v. Julius Dierck Equip. Co., supra; 1 Korn & Miller et al., supra, P 202.4, at 2-61 ("place of injury," for borrowing statute purposes, means "the time when, and the place where, the plaintiff first had the right to bring the cause of action"); cf. Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 432, 599 N.Y.S.2d 515, 516, 615 N.E.2d 999, 1000 (1993) (noting, in non-borrowing statute context, that "accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in complaint").
In Martin, the New York Court of Appeals held that, for borrowing statute purposes, plaintiff's cause of action accrued in Virginia, where plaintiff was injured by an allegedly malfunctioning forklift, rather than in New York, where the forklift was manufactured and delivered. The court explained: "Plaintiff possessed no cause of action, in tort or in contract, anywhere in the world until he was injured [by the forklift] in Virginia." Martin, 403 N.Y.S.2d at 189. The implication is that plaintiff's action accrued at the point that he had a viable claim.
A formulation that turns on when plaintiff's action "came into existence," see id., raises questions of its own. The primary question is whether omniscience is required regarding what physiological changes have occurred, and whether they will one day be harmful. Does a cause of action come into existence where plaintiff does not, and cannot, know that physiological changes are at work in her body because such changes are imperceptible to the plaintiff or to anyone else? If the agent has worked changes on plaintiff's body, but the changes are inconsequential, can plaintiff be said to have been "injured," independently of whether or not she is aware of the changes? If not, then at what point in the progress from inconsequential to consequential changes does the "injury" occur? Under the strictest construction, a cause of action could be said to accrue years before plaintiff -- or anyone -- could determine that 1) physiological changes, perhaps on the cellular level, had taken place; and 2) such changes were injurious.
Another problem raised under the "came into existence" formulation is how to handle the situation where multiple, "separate and distinct" injuries ultimately ensue from one harmful agent. Does the claim accrue for borrowing statute purposes at the onset of the first perceived problem or change? Or are there multiple moments of accrual -- one for each "separate and distinct" injury?
Martin did not deal with a "progressive" injury, so the analysis was straightforward. No other Court of Appeals decision provides additional insight.
The Court of Appeals has, however, explicated the notion of "accrual" in cases construing statutes of limitations, as distinct from the borrowing statute, as they existed prior to the 1986 tort reform package. See Snyder v. Town Insulation, Inc., supra, 599 N.Y.S.2d at 517-18 (construing concept of "accrual" under pre-1986 case law, and summarizing holdings of earlier cases). In Snyder, the Court of Appeals explained its prior holdings, and cited a variety of concededly narrow "traditional" and "established" rules":
In Schmidt, a worker commenced a negligence action against his employer, alleging that inhalation of dust on the job resulted in lung disease several years later. He argued that accrual should be marked from the date of the onset of the disease (270 N.Y. 287, 300, 200 N.E. 824 . . .). We rejected that proposition and restated the traditional rule: "There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury" ( id., at 300, 200 N.E. 824). Disease was a consequence of the injury, we said, not the injury itself, and the injury was complete at the moment the dust was inhaled even though plaintiff may not have been aware of it then . . . .
The question in Schwartz was whether a discovery rule should apply to a claim that the harm caused by a substance taken at a hospital in 1944 first became apparent 13 years later when cancer was discovered. We once again stated the established rule: "The action accrues only when there is some actual deterioration of a plaintiff's bodily structure" (at 217, 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142). This, we concluded, occurred at the time the substance was introduced into plaintiff's body.