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BRAUNE v. ABBOTT LABS.

August 9, 1995

ELLEN BRAUNE, JULI ANN HARNETT, ELIZABETH ROUGNY, and KATHRYN SULLIVAN LINCOLN, Plaintiffs, against THE ABBOTT LABORATORIES, BOYLE & CO. PHARMACEUTICALS, BURROUGHS-WELLCOME & CO., INC., CARNRICK LABORATORIES, INC., CHASE CHEMICAL CO., CHROMALLY AMERICAN CORPORATION, DART INDUSTRIES, INC., p/k/a Rexall Drug Co., Inc., ELI LILLY & CO., KREMERS-URBAN CO., n/k/a/ Mequon Co., LINCOLN LABORATORIES, INC., MALLINCRODT INC., McNEILAB, INC., S.E. MASSENGILL, a/k/a Beechum, Inc., MERRELL DOW PHARMACEUTICALS, INC., PREMO PHARMACEUTICAL LABORATORIES, INC., p/k/a Lemmon Co. of N.J., Inc., RITE-AID CORPORATION, RHONE-POULENC RORER PHARMACEUTICALS, INC., p/k/a William H. Rorer, Inc., ROWELL LABORATORIES, INC., SCHERING GROUP, SOLVAY PHARMACEUTICALS, INC., formerly known as Reid-Provident Laboratories, Inc., STANLEY DRUG PRODUCTS INC., A Division of Sperti Drug Corporation, E.R. SQUIBB & SONS, INC., THE UPJOHN COMPANY, and WEST-WARD, INC., n/k/a INDUSTRIAL WAY LIQUIDATING CORP., Defendants. BARBARA BETH JELLOW, LYNN YARNALL, KERRY ELLEN ZAHN, KATIE KING LARSON, LORI BETH MINOR, SUSAN ALLSOPP, and EVE MARIE COLELLO-MOLTZEN, Plaintiffs, -against- THE ABBOTT LABORATORIES, BURROUGHS-WELLCOME & CO., INC., CARNRICK LABORATORIES, INC., CHASE CHEMICAL CO., CHROMALLY AMERICAN CORPORATION, DART INDUSTRIES, INC., p/k/a Rexall Drug Co., Inc., ELI LILLY & CO., EMONS INDUSTRIES, INC., p/k/a/ Amfre Grant, KREMERS-URBAN CO., n/k/a/ Mequon Co., LANNETT CO., INC., LINCOLN LABORATORIES, INC., McNEILAB, INC., S.E. MASSENGILL, a/k/a Beechum, Inc., MERCK & Co., INC., MERRELL DOW PHARMACEUTICALS, INC., PREMO PHARMACEUTICAL LABORATORIES, INC., p/k/a Lemmon Co. of N.J., Inc., RITE-AID CORPORATION, RHONE-POULENC RORER PHARMACEUTICALS, INC., p/k/a William H. Rorer, Inc., ROWELL LABORATORIES, INC., SCHERING CORPORATION, SOLVAY PHARMACEUTICALS, INC., p/k/a Reid-Provident Laboratories, Inc., STANLEY DRUG PRODUCTS INC., A Division of Sperti Drug Corporation, E.R. SQUIBB & SONS, INC., THE UPJOHN COMPANY, and WEST-WARD, INC., n/k/a THE INDUSTRIAL WAY LIQUIDATING CORP., Defendants. MARY SERRI, TINA LEE BABB, LAURA CASSELL, MICHELE FRIEDMAN, CINDY NADELBACH, KAREN PROODIAN, REGINA SICA, and PAIGE WHITE, Plaintiffs, -against- THE ABBOTT LABORATORIES, BOYLE & CO. PHARMACEUTICALS, BURROUGHS-WELLCOME & CO., INC., CARNRICK LABORATORIES, INC., CHROMALLY AMERICAN CORPORATION, DART INDUSTRIES, INC., p/k/a Rexall Drug Co., Inc., ELI LILLY & CO., KREMERS-URBAN CO., n/k/a/ Mequon Co., LANNETT CO., INC., McNEILAB, INC., MALLINCRODT, INC., S.E. MASSENGILL, n/k/a SmithKline Beechum, Corp., MERCK & Co., INC., PREMO PHARMACEUTICAL LABORATORIES, INC., p/k/a Lemmon Co. of N.J., Inc., RHONE-POULENC RORER PHARMACEUTICALS, INC., p/k/a William H. Rorer, Inc., ROWELL LABORATORIES, INC., SCHERING CORPORATION, E.R. SQUIBB & SONS, INC., THE UPJOHN COMPANY, and WEST-WARD, INC., n/k/a THE INDUSTRIAL WAY LIQUIDATING CORP., Defendants.


The opinion of the court was delivered by: JACK B. WEINSTEIN

 AMENDED MEMORANDUM AND ORDER

 Table of Contents

 I. FACTS

 A. Babb

 B. Cassell

 C. Colello-Moltzen

 D. Friedman

 E. Harnett

 F. Larson

 G. Minor

 H. White

 I. Zahn

 II. LAW APPLICABLE TO STATUTES OF LIMITATIONS-BASED CHALLENGES

 A. New York Statute of Limitations and Discovery Rule

 
1. Statute
 
2. Awareness that "injury" was due to human cause
 
a. Language of the statute
 
b. Precedents
 
c. Comparison of sections 214-c(2) and 214-c(4)
 
d. Legislative design
 
e. Policy
 
f. Likely New York Court of Appeals' construction
 
B. Standard of Constructive Knowledge
 
C. Two-Injury Rule
 
D. Jury Resolution of Factual Disputes
 
E. Suits by Nonresidents
 
1. Borrowing statute
 
a. Applicability to section 214-c
 
b. Date and place of accrual
 
i. Place of encounter with harmful instrumentality
 
ii. Place where injury is perceived
 
iii. Place where viable cause of action becomes possible
 
iv. Place of "last event"
 
v. Place where injury was manifested
 
vi. Possible applicability of "interest" analysis once New York is ruled out as accrual jurisdiction
 
vii. Place most favorable to defendant
 
c. Jury resolution of factual disputes
 
2. Other states' statutes of limitations
 
a. Harnett
 
b. Larson

 III. APPLICATION OF STATUTE OF LIMITATIONS LAW TO FACTS

 A. Babb

 B. Cassell

 C. Colello-Moltzen

 D. Friedman

 E. Harnett

 F. Larson

 G. Zahn

 IV. SUBSTANTIVE CHALLENGES -- HARNETT, MINOR AND WHITE

 V. CONCLUSION

 Defendants, formerly producers for use in pregnancy of diethylstilbestrol (DES), seek summary judgment against nine of nineteen plaintiffs in three separate actions. They assert statute of limitations defenses and the applicability, under choice-of-law principles, of substantive law that arguably precludes plaintiffs' theories of liability.

 As indicated in the body of this memorandum, under New York law the statute of limitations is triggered when a plaintiff either discovered or reasonably should have discovered her "injury" from DES. Required is a showing not only that the plaintiff knew she was "ill," but also that she was aware or should have been aware that her medical problem stemmed from "human" rather than "natural" causes.

 Because unresolved critical questions of fact require jury consideration in each of the cases, defendants' motions are denied, except as noted below in the Minor, Harnett and White actions.

 I. FACTS

 DES is a synthetic drug that was prescribed between 1947 and 1971 to prevent miscarriages. The Food and Drug Administration banned this use of the drug in 1971 after studies indicated that in utero exposure to DES caused rare forms of vaginal and cervical cancer. See, e.g., Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 338 (1989); Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982); In re New York County DES Litig., 142 F.R.D. 58, 59 (E.D.N.Y. 1992) (summary of cases); In re DES Cases (Ashley v. Abbott Lab.), 789 F. Supp. 552 (E.D.N.Y. 1992) (jurisdiction).

 Plaintiffs claim that their various reproductive tract abnormalities and pregnancy-related difficulties, including infertility and miscarriages, were caused by DES exposure. Insofar as the relevant facts can be determined, they are as follows:

 A. Babb

 Tina Lee Babb's complaint was filed on March 28, 1995. Babb has been a New York resident her entire life. New York was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled, the residence of the prescribing physician, the state where Babb was born and apparently the state where her alleged medical problems were diagnosed. They include two miscarriages, an ovarian cyst, an abnormal pap smear and reproductive tract abnormalities.

 Babb consulted a "DES specialist" in 1983 or 1984 when she was 12, after her mother told her she was a DES daughter. A colposcopy revealed an abnormal uterus in 1987 or 1988. Ovarian cysts were diagnosed in 1990. She experienced miscarriages in 1990 and 1993.

 She contends that she was not told that her miscarriages were caused by DES. The connection between her miscarriages and DES was learned, she claims, in 1995 from a newspaper article.

 B. Cassell

 Laura Cassell's complaint was filed on March 28, 1995. Cassell has been a New York resident her entire life. New York was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled, the residence of the prescribing physician, the state where Cassell was born and apparently the state where her alleged medical problems were diagnosed. They include an incompetent cervix, a T-shaped uterus, infertility and fear of DES-related cancer.

 Based upon a suggestion from her doctor during a 1985 consultation regarding her intention to conceive, Cassell asked her mother if she had taken any medication during pregnancy. Her mother responded that she had taken a drug to prevent miscarriages. Cassell's doctor concluded then that plaintiff had probably been exposed in utero to DES.

 Cassell was advised that she had an incompetent cervix in 1985. In 1986, she was diagnosed as having an infantile T-shaped uterus; she was also told in that year that she was at risk for DES-related cancer. In the late 1980s, she consulted with a fertility specialist and contacted a national fertility support group. In 1989, significant levels of antisperm antibodies were found, and a pelvic exam revealed various cervical abnormalities. Artificial insemination attempts in 1989 and 1990 were unsuccessful. A 1992 laparoscopy confirmed cervical abnormalities.

 Cassell alleges that she did not connect her infertility to her DES exposure until January 1995, when she read a news article about DES. In an affidavit, she asserts that, while she was informed earlier that she might have trouble carrying a pregnancy to term, she was not told until March of 1993 that she might be infertile.

 C. Colello-Moltzen

 Eva Marie Colello-Moltzen's complaint was filed on February 3, 1995. She is currently a California resident. Massachusetts was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled and the residence of the prescribing physician. Colello-Molten's family lived near the Rhode Island border, and she was born in a Rhode Island hospital. Based on the pleadings to date, it appears that Colello-Moltzen's alleged medical problems were diagnosed in California. They include an incompetent cervix, vaginal and cervical adenosis, pregnancy requiring hospitalization, pregnancy requiring cerclage placement, a miscarriage, abnormal pap tests and emotional suffering.

 In 1977, Colello-Moltzen's mother informed plaintiff of her DES exposure. During the course of a 1989 pregnancy, plaintiff consulted a doctor who, according to a medical record, informed her of potential pregnancy complications due to DES, including the possibility of an incompetent cervix. That pregnancy ended in a miscarriage. Although she experienced serious complications during her second pregnancy (1990) and third pregnancy (1994), both were successful. She had an abnormal pap smear in September 1990.

 Colello-Moltzen contends that her cause of action did not accrue until 1994 when, during a pregnancy, a doctor told her that she had an incompetent cervix caused by DES. In an affidavit submitted in opposition to defendant's motion, she states that: 1) with respect to the causes of her first miscarriage, her doctor only informed her that "many women miscarry during their first pregnancy"; 2) her doctor informed her that stress was the cause of the preterm labor she experienced during her first successful pregnancy; 3) no doctor ever informed her, prior to the 1994 diagnosis, that her DES exposure would prevent normal pregnancies. This affidavit appears to conflict in some respects with the notation about a doctor-patient discussion in her 1989 medical record noted above.

 D. Friedman

 Michele Friedman's complaint was filed on March 28, 1995. She has been a New York resident since 1989, and also lived in New York from 1986 into 1987. New Jersey was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled, the residence of the prescribing physician and the state where Friedman was born. New York was apparently the state where her alleged medical problems were diagnosed. They include infertility, three miscarriages and a T-shaped uterus.

 Friedman's mother informed her of the DES exposure in 1981. Plaintiff underwent a hysterosalpinogram and a hysteroscopy in 1990. A medical report issued in connection with the hysterosalpinogram noted a T-shaped uterus that "is consistent with DES syndrome." She reported during a 1991 Brooklyn Fertility Center consultation that she had experienced three miscarriages. She asserts that she asked her doctor in 1991 if her difficulty in conceiving was due to DES, but that he refused to express an opinion. On June 16, 1995, she underwent a hysterosalpinogram and a sonogram to determine the cause of her infertility.

 Friedman contends that she was unaware of the connection between her DES exposure and her medical problems until 1994, when she heard of a DES "class action" and underwent additional testing. In an affidavit submitted by the plaintiff, she contends that she was never informed that her miscarriage or infertility was related to her DES exposure, or that her T-shaped uterus would make it impossible for her to conceive. Since she believed that cancer was the only medical problem caused by DES, she states that she did not attribute her miscarriages and infertility to DES.

 E. Harnett

 Juli Ann Harnett's complaint was filed on January 17, 1995. She is currently a resident of Florida, where she moved in 1990 from Colorado, her former residence. Colorado was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled, the residence of the prescribing physician and the state where Harnett was born. She was either a resident of Colorado or Florida when her various alleged medical problems was diagnosed. They include a T-shaped uterus, an abnormal right fallopian tube, an irregular pattern on her uterine wall and infertility.

 Medical records demonstrate that Harnett knew of her DES exposure and was being medically monitored for potential complications in 1973. Records from the 1980s and into the 1990s document consultations with doctors over perceived problems with infertility. A 1989 hysterosalpinogram revealed a T-shaped uterus, irregular uterine walls and an abnormal right fallopian tube. Harnett underwent various fertility procedures in 1990. None were successful. Plaintiff and her husband subsequently adopted two children.

 Harnett contends that she learned "sometime in 1992 . . . that she [would] not be able to conceive due to her in utero DES exposure." At the time of oral argument, plaintiff's deposition had not been taken. Her attorney anticipated demonstrating that, notwithstanding plaintiff's medical records, Harnett was unaware of her medical problems until relatively recently.

 Harnett alleges, pursuant to an anticipated affidavit by the prescribing pharmacist, that Eli Lilly & Co. manufactured the DES ingested by her mother.

 F. Larson

 Larson was informed by her mother that she was a DES daughter in 1972 or 1973, and she was taken for a DES gynecological check-up at that time. Thereafter, she was monitored for possible medical problems related to her DES exposure. Medical records from the 1970s into the 1980s document adenosis, "vaginal changes" and dysplasia. These diagnoses required various medical interventions, including cryosurgery and laser vaporization of the ectocervix. Her deposition confirms that during this time she was aware of some of the potential problems she faced due to her DES exposure -- especially cancer.

 Larson consulted a doctor in 1987 in connection with her decision to try to become pregnant. Proactively, and at her sister's suggestion, she requested a hysterosalpinogram to try to determine whether she could carry a pregnancy to term. A 1988 hysterosalpinogram revealed a small T-shaped uterus. Medical records indicate that her doctor informed her that she might have difficulty becoming pregnant and that she risked preterm labor.

 In 1989, Larson consulted with a doctor about her inability to become pregnant. Fertility treatments were suggested. She returned to her doctor's office in 1990, still complaining of difficulties in becoming pregnant. Various fertility treatments, including five artificial inseminations, were attempted prior to August 1991. At her deposition, she asserted that she was "probably" informed of her incompetent cervix prior to 1991. Plaintiff attended an adoption seminar in April 1992, and was approved for adoption in March of 1993. A letter dated May 21, 1992, that she obtained from her doctor in connection with her intention to adopt, states "Ms. King was exposed to DES as an embryo, and has an abnormal HSG as a result"; notes "an ovulation disorder" which has not responded to medication; and identifies "adoption" as her "best option." Plaintiff adopted a child in 1993. She has never been pregnant although she stopped using birth control many years ago.

 On February 6, 1995, plaintiff underwent a laparoscopy that revealed endometriosis. Defendants note that a laparoscopy examination was recommended by two of her doctors in 1991, but that she did not undergo the procedure until 1995. Surgery was performed to remove the visible endometriosis.

 Larson contends in an affidavit that she was never told, in connection with her medical problems, that she was sterile or would be unable to bear a child. She asserts that cancer was the only potential manifestation about which she was concerned when she initiated medical consultations in relation to her DES exposure. She testified during her deposition that a fertility specialist informed her, during a fertility consultation on or after August 1991, when she began seeing the specialist, that her DES exposure "was not an issue" -- that "there [were] still things that I could attempt in order to get pregnant." She points to other potential sources of her difficulties in becoming pregnant -- her husband's possible impotence, their difficulty finding time together -- that she asserts made a conclusion about her own infertility premature. Plaintiff states that she is still unsure if she is infertile. She is still attempting to conceive. She contends that she was not aware of defendants' liability until she learned, through the media, about a lawsuit filed in New York in 1994.

 G. Minor

 Lori Beth Minor's complaint was filed on February 3, 1995. She is currently an Iowa resident. Iowa was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled, the residence of the prescribing physician, the state where Minor was born and apparently the state where her alleged medical problems were diagnosed. They include a small T-shaped and hypoplastic uterus, a hooded cervix, abnormal pap smears, fear of cancer and infertility.

 Defendants' motion with respect to Minor rests solely on Iowa's substantive law, which requires identification of the specific manufacturer of the DES to which a plaintiff was exposed. In response to defendants' "Preliminary Request for Information," Minor asserted that Eli Lilly & Co. manufactured the DES ingested by her mother. Her assertion is supported by an affidavit by the owner of the prescribing pharmacy which states that "Lilly brand of DES" was the only brand carried by the pharmacy from 1960 to 1970, encompassing the period of plaintiff's exposure. She was born in 1963.

 H. White

 Paige White's complaint was filed on March 28, 1995. White is currently a resident of the state of Kentucky, where she has lived for the past 21 years, and where her alleged medical problems were diagnosed. Georgia was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled, the residence of the prescribing physician and the state where White was born. Her alleged medical problems include a stenotic cervix and a small uterine cavity.

  Defendants' motion with respect to White rests solely on Georgia's substantive law. Georgia has not recognized market share liability. In opposition to defendants' motion, White has submitted an affidavit which states "my mother told me that she recalls [that] the brand of DES that she took during her pregnancy with me was Eli Lilly."

  I. Zahn

  Kerry Ellen Zahn's complaint was filed on February 3, 1995. Plaintiff has been a resident of either Virginia (August 1988-August 1990 and August 1993-present) or Massachusetts (1964-August 1988 and August 1990-August 1993) since birth. Massachusetts was the state of her mother's residence during the pregnancy, the state in which the DES prescription was filled, the residence of the prescribing physician and the state where Zahn was born. Some of plaintiff's alleged medical problems were apparently diagnosed while she was a Massachusetts resident and others while she was a Virginia resident. They include a T-shaped uterus, other uterine abnormalities, a cockscomb cervix, abnormal fallopian tubes, adenosis and infertility.

  Zahn was informed when she was 14 that her mother had ingested DES. She was tested at a DES clinic for cervical and vaginal cancer at that age. She consulted two doctors about some difficulties with conception in 1990 and 1991. She was diagnosed at the end of 1991 as having a blocked right fallopian tube, a small uterus, a short cervix and a small cervical opening. A hysteroscopy revealed a uterine ridge. In deposition testimony, she stated that she was informed by her doctor in October of 1991 that she would not be able to become pregnant without in vitro fertilization. She also stated that she told her doctor, in late 1990 or early 1991, that "I was DES exposed, that I wasn't pregnant and what was I going to do about it." By January 1992, she began the process for in vitro fertilization.

  Zahn contends that not until a 1993 hysterosalpinogram did she learn that she has an infantile T-shaped uterus and that it was due to DES exposure. At that time, she asserts, her doctor informed her that a miscarriage and her difficulty in conceiving could be attributed to abnormalities in the size and shape of her uterus. Defendants counter that none of her records submitted to date indicate the presence of a T-shaped uterus. Defendants also point to a radiology report prepared in connection with the 1991 hysterosalpinogram that characterized plaintiff's uterus as having a "normal appearance."

  II. LAW APPLICABLE TO STATUTES OF LIMITATIONS-BASED CHALLENGES

  Defendants assert that claims made by Babb, Cassell, Colello-Moltzen, Friedman, Harnett, Larson and Zahn are time-barred under the applicable statutes of limitations.

   Federal courts sitting in diversity apply the substantive law of the forum state on outcome-determinative issues, Erie R.R. v. Tompkins, 304 U.S. 64, 80, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); 28 U.S.C. § 1652 (1988), including the forum state's approach to choice-of-law problems, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941), and the forum state's applicable statute of limitations, see Guaranty Trust Co. v. York, 326 U.S. 99, 109-11, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945), together with the state's borrowing statute. See Block v. First Blood Assocs., 988 F.2d 344, 349 (2d Cir. 1993).

  In determining the applicable state law, greatest weight is given to decisions of the forum state's highest court, in this case the New York Court of Appeals, the state's constitution and its statutes. Erie, 304 U.S. at 78; Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994). Where an issue has not been decided definitively, the district court must predict how the highest state court would resolve the legal issue. DeWeerth v. Baldinger, 38 F.3d 1266, 1273 (2d Cir. 1994); Travelers Ins. Co., 14 F.3d 114 at 119; In re E. & S. Dist. Asbestos Litig., 772 F. Supp. 1380, 1388-91 (E. & S.D.N.Y. 1991), rev'd in part on other grounds sub nom., In re Brooklyn Navy Yard Asbestos Litig. (Joint E. & S. Dist. Asbestos Litig.), 971 F.2d 831 (2d Cir. 1992).

  "Great weight" is given to "lower state court decisions," with decisions of "intermediate state appellate courts . . . particularly persuasive." In re E. & S. Dist. Asbestos Litig., 772 F. Supp. at 1390. Nevertheless, federal district courts are not bound by lower state court precedents that they find probably would be rejected on appeal. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967); In re E. & S. Dist. Asbestos Litig., 772 F. Supp. at 1390.

  A. New York Statute of Limitations and ...


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