BURGESS ET AL. v. ELI LILLY AND COMPANY
[Cite as Burgess v. Eli Lilly & Co., 1993-Ohio-193.]
No. 92-480
SUPREME COURT OF OHIO
April 7, 1993
[This оpinion has been published in Ohio Official Reports at 66 Ohio St.3d 59]
- The provision of
R.C. 2305.10 regarding the acсrual date of a cause of action for DES-related injuries is unconstitutional. - A cause of action based upon DES exposure accrues only when the plaintiff has been informed by competent medical authority that she has beеn injured by DES, or upon the date on which, by the exercise of reasonable diligence, she should have known that she has been so injured.
(No. 92-480—Submitted January 12, 1993—Decided April 7, 1993.)
ON ORDER from the United States Court of Appeals for the Sixth Circuit, Certifying Three Questions of State Law, No. 91-3718.
{¶ 1} The plaintiffs in this case are a mother, Lillian Baker, and her two daughters, Sanda Burgess and Deborah Sauer, who each allegedly suffered numerous injuries as a direct result of Baker‘s having taken Diethylstilbestrol (“DES“) while pregnant with Burgess in 1948 and with Sauer in 1951-1952. In the ensuing years, Baker experienced vaginal cysts, a uterine polyp and a breast tumor. Neither Burgess nor Sauer ever developed mature reproductive systems.
{¶ 2} The plaintiffs filed actions for damages against Eli Lilly & Company, a manufacturer of DES, on May 30, 1986. On July 9, 1991, the district court adopted a magistrate‘s recommendation that the action be dismissed. The court specifically found that the claims were barred by the applicable Ohio statute of limitations,
“An action for bodily injury or injuring personal property shall be brought within two years after the cause thereоf arose.
“* * *
“For purposes of this section, a cause of action for bodily injury which may be caused by exposure to diethylstilbestrol or other nonsteroidal synthetic estrogens, including exposure before birth, arises upon the date on which the plaintiff learns from a licensed physician that he has an injury which may be related to such exposure, or upon the date on which by the exercise of reasonable diligence he should have become aware that he has an injury which may be related to such exposure, whichever date occurs first.”
{¶ 3} The district court concluded that each plaintiff was aware prior to May 30, 1984, two years before filing, that she may have been injured due to DES exposure. The рlaintiffs appealed that decision to the Sixth Circuit Court of Appeals. The Sixth Circuit, concerned that the statute of limitations applied to the plaintiffs may violate the Ohio Constitution, has turned to this court for guidance regarding the correct interpretation of
- “(1) Is
Ohio Rev. Code {2305.10 , as construed by the trial court, unconstitutional against plaintiffs-appellants since the plaintiffs could not prevail in an action against the defendant with expert medical proof that the plaintiffs’ respective bodily injuries or conditions ‘may be related to * * * exposure’ to ‘Diethylstilbestrol or other nonsteroidal synthetic estrogens, including exposure before birth‘?” - “(2) What is the proper statutory construction of
Ohio Rev. Code {2305.10 with respect to the accrual of a cause of aсtion for an injury caused by Diethylstilbestrol(‘DES‘)?” “(3) Does the proper statutory construction of Ohio Rev. Code { 2305.10 with respect to the DES provision violate either the due process or right-to-remedy provisions of the Ohio Constitution?”
Gianuglou, Dankof, Caras & Hruska, Sam G. Caras and Michael R. Pentecost, for petitioners.
Shook, Hardy & Bacon, Andrew B. See and Mark C. Hegarty; Porter, Wright, Morris & Arthur and Thomas Hays Pyper, for respondent.
PFEIFER, J.
{¶ 4} We answer the three questions together by responding that the provision of
I
A
{¶ 5} In a line of cases including Mominee v. Scherbarth (1986), 28 Ohio St. 3d 270, 28 OBR 346, 503 N.E. 2d 717, Hardy v. VerMeulen (1987), 32 Ohio St. 3d 45, 512 N.E. 2d 626, and Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St. 3d 54, 514 N.E. 2d 709, this court established a threshold point at which government may impose a statute of limitations on a рotential claimant. That line of decisions established that a statute of limitations could not begin to run before a claimant knew or should have known of her injury. In Allenius v. Thomas (1989), 42 Ohio St. 3d 131, 538 N. E. 2d 93, this court held that knowledge of the injury‘s cause is a part of the knowledge required bеfore a statute of limitations may begin to run.
{¶ 6} In Hardy, this court based its ruling on the right-to-remedy clause of the Ohio Constitution, which states that “* * * every person, for an injury done him in his * * * person, * * * shall have remedy by due course of law * * * .”
{¶ 7} The Hardy court reasoned that the right-to-remedy clause would not allow a plaintiff‘s claim to be extinguished before it accrued, that is, before the plaintiff had knowledge of her injury. Hardy, 32 Ohio St. 3d at 47, 512 N.E. 2d at 628.
{¶ 8} Hardy is rooted not only in the right-to-remedy clause of the Ohio Constitution, but also in common sense. While Hardy dealt nominally with medical malpractice claims, its reasoning that the right-to-remedy clause requires a plaintiff‘s knowledge of her injury should be applied to all claims. It only makes sense that government cannot begin to regulate the time in which a рerson has to bring a claim for an injury until the potential claimant knows both that she has an injury and the cause thereof.
{¶ 9} The right-to-remedy clause, as interpreted by this court, thus sets as the threshold for government action the claimant‘s knowledge of her injury and its cause. The particular provision of
{¶ 10} Simply put, the two-year statute of limitations is triggered when the plaintiff learns that she possibly has a DES-related injury.
{¶ 11} Thеre is more than a semantic difference between knowing that one has a DES-caused injury and knowing that one may have such an injury. A degree of certainty is missing. Knowledge of the possibility that an injury may be related
{¶ 12} This court has previously identified a practical and essential element of the Constitution‘s right-to-remedy clausе: “‘When the Constitution speaks of remedy and injury to person, property or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner.’ (Emphasis added.)” Gaines, supra, 33 Ohio St. 3d at 60, 514 N. E. 2d at 716, quoting Hardy, supra, 32 Ohio St. 3d at 47, 512 N.E. 2d at 628.
{¶ 13} The “opportunity” forced upon plaintiffs by
{¶ 14} If such a cause of action is avаilable, it accrues when a physician tells a patient that she has an injury that “may be related to [DES] exposure.” Therefore, if a doctor tells a patient that there is a one-in-a-thousand chance that the patient‘s condition is related to DES exposure, the patient‘s statute of limitations begins to run.
{¶ 15} Alternatively, the statute states that a cause of action accrues when a claimant “should have become aware that he has an injury which may be relatеd to * * * exposure” to DES. Thus, when a woman with reproductive-tract problems reads a magazine article about DES, her cause of action accrues, since she should know that her problem may be related to DES. The woman need not even know
{¶ 16} The statute operates as an invitation for plaintiffs’ lawyers to violate
{¶ 17} A plaintiff encounters further difficulties at the summary judgment level. A claim, in order to be timely under the statute, must be filed based upon the possibility of аn injury. A plaintiff faces the likely prospect that her claim will be unable to survive a motion for summary judgment.
{¶ 18} A plaintiff need not be able to prove her claim to a degree of metaphysical certitude before she may achievе an opportunity for remedy that is “meaningful.” Nor must a plaintiff be able to line up her expert witness before the statute of limitations begins running. However, the DES portion of
B
{¶ 19} The statute is also unconstitutional because it denies DES plaintiffs due process of law. This court has held that “a legislative enactment will be deemed valid on due process grounds ’ * * * [1] if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and [2] if it is not unreаsonable or arbitrary.‘” Mominee, supra, 28 Ohio St. 3d at 274, 28 OBR at
{¶ 20} Statutes of limitations bear a real and substantial relationship to the public‘s general welfare. They require an orderly and timely prosecution of claims. This statute, however, clearly invites, even requires, questionable litigation. As has already been discussed, plaintiffs are forced to begin building their case upon a mere inkling that they have a DES-related injury. The statute encourages the filing of suits based upon the possibility of injury caused by DES. The encouragement of questionable litigation is not related to the general welfare of the public, and the statute thus violates due process.
{¶ 21} The statute unreasonably and arbitrarily limits the rights of DES victims.
{¶ 22} DES victims are arbitrarily and unreasonably given a more restrictive statute of limitations, one unlike any other in the
{¶ 23} The DES-related provision of
II
{¶ 24} Finding the statute of limitations for DES claims unconstitutional requires reading
Judgment accordingly.
A.W. SWEENEY, DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
MOYER, C.J., dissents.
WRIGHT, J., not participating.