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April 15, 2003


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge


Katherine and James Albers*fn1 originally filed their six-count Complaint against Eli Lilly and Company ("Lilly") in the United States District Court for the District of Columbia, advancing a number of claims that stemmed from the ingestion of diethyl-stilbestrol ("DES") by Katherine's mother Mary Murphy while she was pregnant with Katherine some 48 years ago. By mutual consent the action was then transferred to this judicial district, where it was assigned at random to this Court's calendar. Because the District of Columbia treats statute of limitations issues as procedural, and because the procedural law of the transferor forum continues to apply after transfer, the parties have also agreed that this Court should look to District of Columbia law on that subject.

At this point Lilly has moved for summary judgment under Fed.R.Civ.P. ("Rule") 56 on a host of grounds that its counsel sets out at page 1 of its motion:

Specifically, Lilly is entitled to summary judgment because (1) plaintiffs cannot prove that she was exposed to DES in utero; (2) plaintiffs cannot identify Lilly as the manufacturer of the DES to which plaintiff was allegedly exposed, as required under applicable Illinois law; (3) plaintiffs' claims are time-barred; (4) plaintiff cannot prove causation; (5) plaintiffs' strict liability claims are time-barred by the Illinois statute of repose; and (6) plaintiff James Albers cannot maintain a claim for loss of consortium because he was not married to plaintiff at the time of her alleged injury.
In turn, Albers' counsel have begun their responsive legal memorandum in this fashion (Albers Mem. 1)
Without confidence in any single one of their arguments, Defendant proposes four different ones for depriving Ms. Albers of her day in Court, hoping that one will find its mark. Ms. Albers will thwart each seriatim.*fn2
Although Lilly's reply memorandum is not yet due, the head-on confrontation to this point permits its Rule 56 motion to be dealt with now.

As it develops, Albers' extensive submission has identified enough in the way of material (that is, potentially outcome-determinative) facts to cause the rejection of any early summary disposition based on issues (1), (2) and (4) listed by Lilly. But the third issue — the time-bar question — requires substantial discussion and analysis.

District of Columbia law, as exemplified in Bussineau v. President and Directors of Georgetown Coll., 518 A.2d 423 (D.C. App. 1986) and then reconfirmed per curiam in the lengthy opinion in Diamond v. Davis, 680 A.2d 364 (D.C. App. 1996), applies a "discovery rule" to determine when the statutory three-year limitations clock begins to tick — a modification of the usual rule that the accrual of a cause of action takes place when the plaintiff sustains injury. Bussineau, 518 A.2d at 425 stated the discovery rule requirements in this way:

We hold that for a cause of action to accrue where the discovery rule is applicable, one must know (or by the exercise of reasonable diligence should know[)] (1) of the injury, (2) [of] its cause in fact and (3) of some evidence of wrongdoing.
Diamond, in which the same court was later called upon to decide whether different variants of those requirements were called for in different classes of cases (for example, where fraud and fraudulent concealment were involved), announced the universality of the criteria (680 A.2d at 381):
In every case, the plaintiff has a duty to investigate matters affecting her affairs with reasonable diligence under all the circumstances. Once the plaintiff actually knows, or with the exercise of reasonable diligence would have known of some injury, its cause-in-fact, and some evidence of wrongdoing, then she is bound to file her cause of action within the applicable limitations period, measured from the date of her acquisition of the actual or imputed knowledge.
There is no quarrel on Albers' part as to the satisfaction of the first two components of the rule. To the contrary, as Albers Mem. 10 acknowledges:
In 1991, Plaintiff Katherine Albers was diagnosed with a T-shaped uterus and was told that this uterine anomaly may have been related to her mother's ingestion of DES when pregnant with her. Plaintiff does not contest therefore that she knew more than three years prior to filing suit that she was injured as a result of her in utero DES exposure.
But Katherine disclaims any reason to suspect any wrongful conduct in that respect (the necessary third component of the rule), stating in part that she never read any newspaper article or magazine or viewed or listened to any television or radio show about DES (Katherine's April 3, 2003 affidavit, Albers App. 23).

That poses the question whether Katherine is completely insulated from the application of the third element of the discovery rule test by her asserted lack of information that suggested any wrongdoing. In terms of the absence of any actual knowledge on Katherine's part, this Court is required for Rule 56 purposes to take her word for it, even though it is almost necessary for a person to have been marooned on a desert island (or to belong to some variant of the genus Struthio, sharing the ostrich's proverbial head-in-the-sand proclivities) to have been truly unaware of such an open and notorious fact as the many claims of wrongdoing that have been (and continue to be) publicly associated with DES.*fn3

Those claims have manifested themselves in the filing of thousands of cases over the years, importantly including one that produced a highly publicized multimillion dollar jury verdict (over $42 million awarded to 11 woman plaintiffs) some three years after Katherine had learned of her problem in 1991,*fn4 as well as the clear indications of DES causation and of wrongdoing on the part of Lilly and other drug manufacturers that were invariably attached to those claims. Lilly has assembled at its summary judgment Mem. 13-15, and this Court has attached to this opinion, examples of the all-pervasive publicity as to DES, its problems and those of the drug manufacturers, including several highly publicized instances well after Katherine knew of her problem and had every reason to be alerted to any discussion of DES-related difficulties.

This Court has looked carefully at the operative caselaw in the District of Columbia, not only at Bussineau and Diamond but also at this years decision in Doe v. Medlantic Healthcare Group, Inc., 814 A.2d 939 (D.C. App. 2003).*fn5 Doe, id. at 945 does repeat the proposition that "when accrual actually occurred in a particular case is a question of fact for the factfinder." But it does so in the context that the fact-bound inquiry typically looks at situations in which there are disputed factual issues, such as whether a defendant engaged in misrepresentations (and the nature of such claimed misrepresentations), as well as the reasonableness of a plaintiff's reliance on defendant's conduct and misrepresentations (a.). And Doe, id. expressly recognizes that "summary judgment on the issue of when accrual occurred may be granted in cases when there is no disputed issue of fact" (cf. also Jacobsen v. Oliver, 201 F. Supp.2d 93, 109-11 (D. D.C. 2002)). As Doe, id. (emphasis added in part) has restated the test set out in Bussineau and Diamond:

When the discovery rule applies, a cause of action accrues when the claimant knows or by the exercise of reasonable diligence should know of (1) the injury, (2) its cause in fact, and (3) some evidence of wrongdoing. See Bussineau v. President and Dirs. of Georgetown College, 518 F.2d 423, 435 (D.C. 1986). "The law of limitations requires only that the plaintiff have inquiry notice of the existence of a cause of action." Hendel v. World Plan Executive Council, 705 A.2d 656, 661 (D.C. 1997). We have explained that a cause of action accrues for statute of limitations purposes when the plaintiff is deemed to be on inquiry notice, "because if she had met her duty to act reasonably under the circumstances in investigating matters affecting her affairs, such an investigation, if conducted, would have led to actual notice." Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (per curiam) Thus, inquiry notice is "that notice which a plaintiff would have possessed after due investigation." Id. (emphasis added)
Reasonableness is of course a wholly objective standard, not a function of the idiosyncrasies of any particular individual. And in those objective terms, it "must be concluded that it was unreasonable to do what Katherine did (or more accurately did not do) for years: She engaged in no follow-up inquiry at all into DES, into why it caused the serious deleterious effects that it did, into why in light of those effects it had still ...

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