MOLL v ABBOTT LABORATORIES; HARRINGTON v ABBOTT LABORATORIES
Docket Nos. 93309, 93310, 91561
Supreme Court of Michigan
Decided September 21, 1993
444 Mich 1
Argued March 2, 1993 (Calendar Nos. 3-4).
Judith Harrington and others brought a products liability action in the Wayne Circuit Court against Abbott Laboratories and other manufacturers of DES, alleging latent toxic injuries arising from its use. The court, James E. Mies, J., granted summary disposition for the defendants on the basis of the three-year statute of limitations, concluding, as a matter of law, that the plaintiff knew or should have known of her cause of action when she was diagnosed with a T-shaped uterus. The Court of Appeals, MCDONALD, P.J., and MICHAEL J. KELLY and GRIFFIN, JJ., affirmed in an unpublished opinion per curiam (Docket No. 115438). The plaintiff appeals.
In an opinion by Chief Justice CAVANAGH, joined by Justices BRICKLEY, RILEY, and GRIFFIN, the Supreme Court held:
The discovery rule controls the determination of when a
- The applicable period of limitation for a products liability action is three years and begins to run on the date a claim accrues. A plaintiff harmed by a prescribed pharmaceutical product is often unaware of resulting latent injuries. If the three-year period of limitation were to begin to run at the time of the defendant‘s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and its cause. Thus, application of the discovery rule is appropriate in such cases to furnish a reasonable time for injured plaintiffs to seek legal redress for their injuries.
- A cause of action for personal injuries is stated when a plaintiff alleges that the defendant owed the plaintiff a legal duty and breached that duty, that the breach was the proximate cause of the injury, and that damages were suffered. In a pharmaceutical products liability action, the defendant‘s duty and breach generally predate the plaintiff‘s awareness of an injury and its cause. Under the discovery rule, the plaintiff‘s claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, an injury and the causal connection between the injury and the defendant‘s breach—a possible cause of action. The plaintiff then has a duty to diligently pursue the resulting claim. The cause of action accrues when, on the basis of objective facts, the plaintiff should have known of an injury, even if a subjective belief regarding the injury occurs at a later date. The discovery rule applies to the discovery of an injury, not the discovery of a later-realized consequence of the injury. Once a DES injury is discovered, a plaintiff has three years to seek legal and medical counsel regarding the claim and resulting damages.
- In the absence of disputed facts, the question whether a plaintiff‘s cause of action is barred by the statute of limitations is one of law to be determined by the trial court.
- Because neither plaintiff filed suit within three years of discovering a possible cause of action, the statute of limitations bars these actions.
Moll, reversed.
Harrington, affirmed.
Justice BOYLE, concurring in part and dissenting in part,
A plaintiff need not know that an invasion of a legal right has been suffered before a cause of action accrues. It is one thing to say that the discovery rule is triggered when a plaintiff knows of the fact of an injury and a causal connection, and another to say there is a distinction between “possible” and “likely” as the quantum of fact triggering the discovery rule. Common sense and reason dictate that the limitation period does not begin to run until a plaintiff knows of an injury and can reasonably determine what or who caused it. Moll involves the question of someone‘s wrongdoing, not in the sense of a known breach of a legal duty, but whether there is a connection between the plaintiff‘s condition and some causal factor. If there were evidence in the record in Moll to suggest that the plaintiff could have learned of the defendant‘s responsibility had she exercised due diligence, summary judgment would be appropriate.
Whether it can be said as a matter of law that a plaintiff has exercised reasonable diligence turns on the nature of the injury, its symptoms, and available medical knowledge. In Moll the issue is not the injury, but who or what hurt the plaintiff and whether, as a matter of law, the plaintiff should have discovered the cause of the injury. Remand is required in Moll, not for a determination whether DES was a “likely” cause of her hooded cervix, but rather for a determination whether, given the circumstances presented, a plaintiff exercising due diligence would have discovered the operational cause of the injury. If, from the facts presented, a jury could reasonably conclude that the plaintiff acted diligently in pursuing who or what caused her injury, summary judgment should be denied.
Justice MALLETT, dissenting, stated that Judith Harrington‘s suit should not be barred by the statute of limitations. She did not know, nor should she have known, of her injury on December 27, 1983, because it did not manifest itself until
Justice LEVIN, dissenting, stated that in the context of actions claiming injury as a result of exposure to DES, the concept of reasonable diligence should include as factors that a woman who learns that she may have a serious reproductive disorder and who is anxious to have children, although advised that she may be a victim of defective drugs, initially may take steps to address her medical problem in light of available medical information and the course of treatment prescribed by her physician, and be more concerned about her health and achieving conception, than abandoning such efforts in favor of recourse to the courts.
In Moll, the issue of the plaintiff‘s diligence should not have been decided summarily. On the basis of the record, the trier of fact could conclude that she was reasonably justified in focusing on solving her medical problems rather than immediately searching to discover whether DES was a cause of those problems. In all events she made a good-faith attempt to find whether DES was a cause, without success. A reasonable trier of fact could conclude that due diligence required no more.
In Harrington, considering the unique nature of DES-related harms, a reasonable trier of fact could conclude that the plaintiff should not have known of her injury before learning of her infertility. Exposure to DES can have multiple effects, and not all the effects are harms or injuries at the instant that the DES effect is discovered. When Harrington first learned of her uterine condition, it was not causing her any harm, and she was reasonably justified in not considering it to be a present injury. Only after she discovered that the physical abnormality would prevent her from conceiving and carrying a child to term did she know that she had been harmed.
The undisputed facts in both Moll and Harrington are subject to conflicting inferences. Because the answers to the questions posed are far from clear, judgment as a matter of law is not appropriate.
192 Mich App 724; 482 NW2d 197 (1991) reversed.
LIMITATION OF ACTIONS — PRODUCTS LIABILITY — DISCOVERY RULE — PHARMACEUTICAL PRODUCTS.
The discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action; the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action; in the absence of disputed
Barr & Associates (by Charles J. Barr) for the plaintiffs.
Shook, Hardy & Bacon (by Andrew See and Michelle R. Mangrum) and Dickinson, Wright, Moon, Van Dusen & Freeman (by Kathleen A. Lang and Mary Beth Kelly) for defendant Eli Lilly & Company.
Plunkett & Cooney, P.C. (by Robert G. Kamenec), for defendant E. R. Squibb & Sons, Inc.
Amici Curiae:
Bowman & Brooke (by Lawrence C. Mann and Terrence E. Haggerty) for the Product Liability Advisory Council, Inc.
Brian J. McKeen and Thomas H. Bleakley for Michigan Trial Lawyers Association.
CAVANAGH, C.J. In these pharmaceutical products liability actions, we are asked to determine when a cause of action for latent toxic injuries accrues for statute of limitations purposes. We hold that the discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action. Thus, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff‘s action is barred by the statute of
I
A
HARRINGTON v ABBOTT LABORATORIES
Plaintiff Judith Harrington1 was born on August 5, 1955, in Detroit, Michigan. Her mother, Theresa Harrington, ingested DES2 during her pregnancy with Judith. Judith Harrington first became aware of her exposure to DES in utero in the latter part of 1974. At this time, Dr. Bryce, the Harrington family physician, informed Theresa Harrington by letter of her ingestion of DES and the associated reproductive problems found in DES daughters. The letter suggested that Judith Harrington consult a physician specializing in DES problems.
On the advice of Dr. Bryce, Judith visited Dr. Vakhariya on January 2, 1975, who informed her that she had a mosaic on her cervix, a precancerous condition. Although a biopsy revealed that the tissue was benign, Dr. Vakhariya recommended
In 1983, Judith Harrington consulted Dr. Laham because of her inability to conceive a child. Dr. Laham informed Judith of her mosaic cervix and advised her that this condition could be caused by DES exposure.3 The doctor also opined that Judith‘s difficulty in conceiving could be the result of DES exposure. Dr. Laham eventually referred Judith to a reproductive specialist, Dr. Stern, for an extensive examination of her uterus.
Dr. Stern performed a hysterosalpingogram (HSG)4 on December 27, 1983. On the same day, Dr. Stern apprised Judith of the test results, informing her that she had a bicornuate or T-shaped uterus, a condition that can result from DES exposure, and that could be the cause of her difficulty in conceiving.
In the early part of 1984, Judith became pregnant. Dr. Laham treated the pregnancy as high-risk because of her exposure to DES. The doctor placed various restrictions on Judith and her activities. Unfortunately, the precautions proved futile, and Judith miscarried in April of 1984. She learned from Dr. Laham that her uterine deformities caused her miscarriage. Believing that she would experience the same problem with future pregnancies, Dr. Laham advised her not to attempt another pregnancy.
On December 30, 1986, Judith, along with fourteen other named plaintiffs,5 filed suit against the
B
MOLL v ABBOTT LABORATORIES
Plaintiff Jean Moll8 became aware of the irregularities in her cervix during a gynecological examination by Dr. Ulmer in April of 1975. Because of the condition of her cervix, Dr. Ulmer asked Jean if she had had an abortion.
In August of 1976, Jean visited another gynecol-
Jean‘s mother, Shirley Petroff, recalled being hospitalized for a month during her pregnancy with Jean. She also recalled that her doctor, Dr. Brownell, had administered medication to prevent her unborn child from aborting. Mrs. Petroff, however, could not recall the name of the prescribed drug. Attempting to ascertain what drug Dr. Brownell had administered, Jean and her mother contacted Dr. Brownell‘s office to inquire about the needed medical records. Dr. Brownell‘s receptionist informed Mrs. Petroff that the records had been sent elsewhere. Further attempts to locate the records were unsuccessful.
In 1977, Dr. O‘Campo advised Jean that her cervix “didn‘t look good” and that the problem “might be due to the DES that [her] mother had taken. . . .” Following the doctor‘s recommendation, Jean submitted to another test, a colposcopy, which took place in January of 1978. Following the test, the doctor told Jean that “the results were . . . fine” and “there was no cause for real concern at that time,” but that she had an “incompetent cervix” and this type of problem could have been caused by exposure to DES. The doctor also told the plaintiff that exposure to DES could lead to cancer.
The plaintiff attempted to conceive a child in 1978. After approximately a year, she grew concerned over her inability to conceive and consulted Dr. O‘Campo. In February of 1979, Dr. O‘Campo told the plaintiff that the hood over her cervix could be preventing conception. Furthermore, the doctor informed Jean that her exposure to DES in
In May of 1980, Dr. O‘Campo suggested that the Molls undergo a series of fertility tests because of their continued inability to conceive. These tests were never performed, however, because Jean did not consult Dr. O‘Campo again until 1985. Jean was once again informed that the hood on her cervix was the probable cause of her infertility. The plaintiff also learned at the time that her incompetent cervix could cause difficulties in carrying a child to term.9
Jean Moll filed suit against the defendants, manufacturers of DES, on December 30, 1986.10 On July 8, 1988, Judge Mies granted Eli Lilly‘s11 motion for summary judgment pursuant to MCR 2.116(C)(10), because of the plaintiff‘s inability to prove that her mother ingested DES, a requirement for alternative liability.12 The court delayed entry of the order, however, until September 9, 1988, to allow Jean additional time to locate Mrs. Petroff‘s medical records. With the aid of a court order, Jean located Mrs. Petroff‘s medical records at the Highland Park City Clerk‘s office. The records confirmed that Dr. Brownell had administered DES to Mrs. Petroff.
In December of 1988, the defendant Eli Lilly13 moved for summary judgment pursuant to MCR 2.116(C)(7). The defendant claimed that Jean Moll‘s suit was barred by the applicable three-year
The Court of Appeals affirmed the denial of Eli Lilly‘s motion for summary disposition on different grounds. It rejected the trial court‘s contention that a cause of action does not accrue until the plaintiff could prove each element of her claim. The panel also rejected the line of cases holding that a plaintiff‘s cause of action accrues when she discovers or should have discovered the existence of a possible cause of action. 192 Mich App 724, 731; 482 NW2d 197 (1992). Instead, the Court held “that a plaintiff‘s cause of action does not accrue until the plaintiff discovers or through the exercise of reasonable diligence should have discovered that the plaintiff has been injured and what a likely cause of the injury was.” The panel determined that a factual dispute existed regarding when Jean discovered that DES was the likely cause of her injuries. Accordingly, the trial court‘s denial of Lilly‘s motion was affirmed. We granted the defendants’ application for leave to appeal on November 2, 1992. 441 Mich 878. We reverse.
II
The applicable period of limitation for a products liability action is three years.
Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time of the wrong upon which the claim is based was done regardless of the time when damage results. [
MCL 600.5827 ;MSA 27A.5827 .]
In Connelly v Paul Ruddy‘s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972), we held that the term “wrong,” as used in the accrual statute, specified the date on which the defendant‘s breach harmed the plaintiff, as opposed to the date on which the defendant breached his duty. Common sense dictated such an interpretation because, if the date of the defendant‘s breach designated the date of accrual, then the plaintiff‘s claim could be barred before a plaintiff suffers an injury.15 Similarly, our concern about barring a plaintiff‘s cause of action prematurely has led to our adoption of the discovery rule under the proper circumstances.
In Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963),16 this Court adopted the discov-
In these consolidated cases, the plaintiffs argue that the discovery rule applies in pharmaceutical products liability claims. We agree.17 Similar to a plaintiff in an asbestos case, a plaintiff harmed by a prescribed medication is most often unaware of latent resulting injuries. If the three-year period of limitation began to run at the time of the defendant‘s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks “to declare the bread stale before it is baked.” Fleishman v Eli Lilly & Co, 96 AD2d 825, 826; 465 NYS2d 735 (1983) (Gibbons, J., concurring in part and dissenting in part).
Furthermore, the policies behind the statute of limitations do not preclude the use of the discovery rule in pharmaceutical products liability cases.
Statutes of limitations are intended to “compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend“; “to relieve a court system from dealing with ‘stale’ claims, where the facts in dispute occurred so long ago that evidence was either forgotten or manufactured“; and to protect “potential defendants from protracted fear of litigation.”
Nevertheless, as properly noted by the Court of Appeals, application of the discovery rule is appropriate in pharmaceutical products liability cases.
“With respect to the problem of lost or inaccurate evidence due to the passage of time, several reasons exist why the potential for prejudice to the defendant is not significant in a drug case of this kind. Most of the evidence necessary to prove or defend against liability is likely to be documentary in nature. It is not the kind of evidence that is lost or becomes unreliable as time passes. Companies generally compile and maintain research records that document the extent of their knowledge of the harmful propensities of their drugs. Certainly, doctors and hospitals meticulously maintain and store records of patient treatments. Additionally, unlike the situation in most cases, the passage of time in a drug case is likely to increase both the amount and the accuracy of the evidence—in this case the scientific community‘s knowledge of the causal relationship between certain drugs and injury or disease. Finally, we note that manufacturers are in a superior position to control the discovery of the hazards of their products. Through the processes of design, testing, inspection and collection of data on product safety performance in the field, the manufacturer has virtu-
ally exclusive access to much of the information necessary for effective control of dangers facing product consumers. Indeed, the strict principles of modern products liability law evolved in part to motivate manufacturers to use this information to help combat the massive problem of product accidents.’ Owen, Punitive Damages in Products Liability Litigation, 74 Mich LR 1258 (1976). We do not think that in suits such as the instant one ‘the passage of time would increase problems of proof or entail the danger of false, fraudulent, frivolous, speculative or uncertain claims.‘” [Bonney v Upjohn Co, 129 Mich App 18, 33-34; 342 NW2d 551 (1983).]
Because the purpose of the statute of limitations is not offended by the application of the discovery rule in pharmaceutical products liability cases, and because adoption of the discovery rule will furnish a reasonable time for injured plaintiffs to seek legal redress for their injuries,18 we hold that the discovery rule governs the date of accrual for pharmaceutical products liability cases.
III
A cause of action for personal injuries accrues
A
At oral argument, the plaintiffs’ counsel urged the Court to adopt a DES-specific discovery rule that would forestall the running of the applicable statute of limitations until the plaintiff perceived herself to be injured. Counsel reasoned that the proposed rule would promote the strong policies articulated in Abel and allow a totally blameless plaintiff to seek legal redress against a tortfeasor.
Certainly, adoption of a subjective test would give a plaintiff a greater opportunity to bring suit against an alleged wrongdoer. But this approach would also vitiate the statute of limitations as a defense.19 In enacting the three-year statute of
Adoption of a subjective test would allow a DES plaintiff to legally forestall suit until the time she is convinced that she is injured.
If plaintiff prevails on question at issue here, that point is never reached until a plaintiff is subjectively certain of the cause of the injury. That, of course, will never be more than three years prior to filing the complaint because the date of such “discovery” will be completely under the control of the plaintiff. [Keith-Popp v Eli Lilly & Co, 639 F Supp 1479, 1482 (WD Wis, 1986).]
If the Legislature had deemed it appropriate to permit a plaintiff discretion to bring suit, it never would have enacted a statute of limitations or would have provided a specific exception for DES victims.
We have consistently held that under the discovery rule, a cause of action accrues when “the claimant knows or should have known of the disease [injury] . . .”21 While the term “knows”
tions is not a disfavored plea but a perfectly righteous defense . . . [Bigelow at 570.]
Michigan jurisprudence compels not only the use of an objective standard for determining when an injury is discovered, but it also compels strict adherence to the general rule that “subsequent damages do not give rise to a new cause of action.” Larson at 315. The discovery rule applies to the discovery of an injury, not to the discovery of a later realized consequence of the injury.
In Larson, we held that an action for the asbestos-related disease, asbestosis, accrues at the time a plaintiff knows or should have known of the disease, and not at the time of exposure to the asbestos. We also held that a plaintiff who develops cancer as a result of asbestos exposure may bring suit within three years of when the cancer was or should have been discovered, regardless of whether asbestosis had developed before the three-year limitation period, in cases where a prior action had not been brought.22 Larson at 304-305. We reasoned that deviation from the general rule was warranted because cancer and asbestosis are
A review of the facts in Harrington clearly reveals that the plaintiffs’ injuries, in the cases at bar, are not independent diseases warranting a departure from the general rule. Plaintiff Judith Harrington claims that her infertility is her injury and that until her miscarriage she was not aware of this injury. Judith Harrington confuses, however, her DES-related physical abnormality (her injury) with a later realized consequence of this physical abnormality. The exposure to DES in utero caused physical abnormalities in her uterus, namely, a bicornuate or T-shaped uterus. Because of this injury, she had difficulty conceiving and carrying a pregnancy to term. The full extent of Judith Harrington‘s injury and subsequent damage related to her physical abnormality (i.e., her infertility) was fully detectable at the time of initial discovery of her injury. Her infertility was an outgrowth of her deformed uterus.23 In order to promote finality and prevent overburdening of our judicial resources, we adhered to the general principle that the discovery of an injury commences the running of the statute of limitations.
“Thus, if there is a coincidence of a negligent act with the fact of some damage, the cause of action comes into being and the statute of limitations begins to run even though the ultimate damage is unknown or unpredictable.” [Larson at 315, quoting 51 Am Jur 2d, Limitation of Actions, § 136, p 706.]
Once a plaintiff discovers a DES injury, she has three years to consult with the legal and medical community about her claim and resulting damages. To hold that the statute of limitations did not begin to run until the plaintiff realized additional consequences of her physical abnormality24 would circumvent the clear intent of the Legislature to promote prompt resolution of claims.
B
The Court of Appeals panel in Moll rejected the discovery rule standard as set forth in Bonney, where the Court of Appeals stated:
A plaintiff‘s cause of action accrues when he discovers or, through the exercise of reasonable diligence, should have discovered that he has a possible cause of action. [Bonney at 24. Emphasis added.]
In rejecting Bonney‘s characterization of the discovery rule, the Moll panel reasoned:
We agree that the discovery rule should be employed in the present case. However, we find
The Court of Appeals interpretation increases the period before which a plaintiff‘s claim accrues
under the discovery rule because a “possible cause of action” generally will be discovered before a
The Moll panel‘s interpretation of the discovery rule raises the level of certainty with respect to causation. According to Black‘s Law Dictionary (6th ed), p 925, the term “likely” is defined as:
Probable. Horning v Gerlach, 139 Cal App 470 [471-473]; 34 P2d 504, 505 [1934]. In all probability. Neely v Chicago Great Western R Co, 14 SW2d 972, 978 [Mo App, 1928]. Likely is a word of general usage and common understanding, broadly defined as of such nature or so circumstantial as to make something probable and having better chance of existing or occurring than not. People v Randall, 711 P2d 689, 692 [Colo, 1985].
The term “possible,” on the other hand, connotes a lesser standard of information needed to provide knowledge of causation. Black‘s Law Dictionary defines the term “possible” as:
Capable of existing, happening, being, becoming or coming to pass; feasible, not contrary to nature of things; neither necessitated nor precluded; free to happen or not; contrasted with impossible. [Id. at 1166.]
When determining the appropriate standard for the discovery rule, we must keep in mind the policy reasons prompting the adoption of the statute of limitations, as well as the discovery rule, and choose the interpretation that best promotes both policies and does the least amount of damage
They encourage the prompt recovery of damages; they penalize plaintiffs who have not been industrious in pursuing their claims; they “afford security against stale demands when the circumstances would be unfavorable to a just examination and decision“; they relieve defendants of the prolonged fear of litigation; they prevent fraudulent claims from being asserted; and they “remedy the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.” [Citations omitted.]
As discussed earlier, this Court has adopted the discovery rule to prevent the barring of claims before the claimant‘s realization of a cause of action. See Johnson, Polgar, and Larson, supra.
While the Court of Appeals applicable test of a “likely cause” obviously addresses our concern against barring a plaintiff‘s cause of action prematurely, it also wreaks havoc with the legislative policies underlying the statute of limitations. The statute of limitations encourages claimants to investigate and pursue causes of action. It alleviates defendants’ continued fear of litigation following a legislatively mandated time period.27 A “likely cause” standard is inapposite to such policies.
We find that the best balance is struck in the
“It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claims.” [Kroll v Vanden Berg, 336 Mich 306, 311; 57 NW2d 897 (1953).]
Additional support for our adoption of a “possible
The plaintiff argues that the reference to “notice of likely cause” in the quoted language means that a plaintiff must have probable cause to believe that the defendant‘s acts were the cause of her physical injuries before the statute begins to run. There is no Massachusetts case law in support of this view. The Court of Appeals opinion does not adopt that position. Our Appeals Court did not read the Court of Appeals opinion as the plaintiff claims when it said: “Massachusetts does not require discovery of each of the elements of the cause of action—duty, breach, causation, and damages before the limitation clock in [
Thus, the Court of Appeals reliance on Bowen to justify abandoning the Bonney “possible cause of action” standard is misplaced. Not only did the Bowen court explicitly acknowledge that a lesser quantum of information causes a claim to accrue, but the application of the discovery rule to the Bowen facts reveals a standard more analogous to Michigan‘s “possible cause of action” standard.
IV
The final question we must resolve is whether a plaintiff‘s request for a jury trial prohibits a trial judge from granting a motion for summary disposition based on the statute of limitations. We hold that in the absence of disputed facts, the question whether a plaintiff‘s cause of action is barred by the statute of limitations is a question of law to be determined by the trial judge.
We have long recognized that a jury is charged with resolving disputed facts. Kroes v Harryman, 352 Mich 642, 648; 90 NW2d 444 (1958); Christiansen v Hilber, 282 Mich 403, 407; 276 NW 495 (1937); Peoples Wayne Co Bank v Wolverine Box Co, 250 Mich 273, 279; 230 NW 170 (1930). However, “[b]efore a jury is ever reached a preliminary decision must always be made, namely, whether or not there is anything to go to a jury.” Kroes at 646. Where the facts of a case are uncontroverted and the only question left is what legal conclusions can be drawn from the facts, the question is for the court and not the jury. Kroes at 648; Coddington v Robertson, 160 Mich App 406, 410; 407 NW2d 666 (1987).
Both our court rules31 and case law recognize the desirability of allowing summary disposition, regardless of a jury request, when uncontroverted facts are presented to the court. This promotes efficiency and preservation of judicial resources. The summary judgment law provides a speedy
While we do not tolerate usurping the province of the jury,32 we do permit courts to determine a case when only a question of law exists. We permit courts to act in this manner as seen in summary judgment proceedings pursuant to
While a court must be cautious when dismissing a claim pursuant to summary disposition,36 it does
V
On the basis of the foregoing principles, we hold that the statute of limitations bars Judith Harrington‘s and Jean Moll‘s lawsuits. The uncontroverted deposition testimony of Judith Harrington reveals that as of December 27, 1983, she knew of (1) her bicornuate or T-shaped uterus, and (2) the possible link between her DES exposure and the deformity of her uterus. She not only knew of her injury, but its possible cause. Accordingly, she knew or should have known of her possible cause of action on December 27, 1983. Consequently, she had until December 27, 1986, to consult with the legal and medical community in order to ascertain the full extent of her damages and to file suit. Her failure to file suit by December 27, 1986, compels us to hold that the statute of limitations bars her claim.
VI
The discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action. We hold that under the discovery rule, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff‘s action is barred by the statute of limitations is a question of law, to be determined by the trial judge.
The law imposes on a plaintiff, armed with knowledge of an injury and its cause, a duty to diligently pursue the resulting legal claim. Because neither Judith Harrington nor Jean Moll filed suit within three years of discovering their possible causes of action, the statute of limitations bars their suits.37
BRICKLEY, RILEY, and GRIFFIN, JJ., concurred with CAVANAGH, C.J.
BOYLE, J. (concurring in part and dissenting in part). I agree that the discovery rule applies in pharmaceutical products liability claims and with the Court‘s conclusion that plaintiff Harrington knew or should have known of her claim on December 27, 1983. I write separately because I disagree with the result in Moll, and because I am concerned that the Court‘s rationale unnecessarily restricts development of the discovery rule.
In my view, there is no difference between “possible” and “likely” as the quantum of fact that triggers the statute under the discovery rule. The concept of reasonable diligence is implicit in the discovery rule and the reasonable person test is sufficiently flexible to permit fact-specific application regarding whether a plaintiff knew or should have known of the fact of injury and a causal connection. Finally, because the statute of limitations is an affirmative defense, all inferences favor the nonmoving party. Applying this test, I believe that there is a question whether plaintiff Moll was reasonably diligent in discovering the operative cause of her injury. I would remand to the trial court for further proceedings.
The Court of Appeals in Moll correctly rejected the contention that the discovery rule is not triggered until plaintiff knows or should know of “all the elements of a cause of action,” including the defendant‘s breach of duty. Bonney v Upjohn Co, 129 Mich App 18, 26-27; 342 NW2d 551 (1983).
To the extent that Bonney suggested in dicta
It is one thing, however, to say as the majority does that the discovery rule is triggered when a plaintiff knows of the fact of an injury and a causal connection, and another to say there is a distinction between “possible” and “likely” as the quantum of fact triggering the discovery rule. Indeed, in Kubrick itself, the Court, narrowly interpreting the government‘s waiver of immunity under the
Beyond these observations, it is, in my judgment, unwise to introduce a new battleground, i.e., the distinction between whether the cause-in-fact connection is “possible” or “likely” into the statute of limitations arena. In fact, courts using the “likely” cause formulation have relied on testimony that plaintiff was told of the “possibility” of the causal connection. Fidler v EM Parker Co, Inc, 394 Mass 534; 476 NE2d 595 (1985). In my view, common sense and reason dictate that the limitation period does not begin to run until a plaintiff knows he has been injured and can reasonably determine what or who hurt him. Bayless v Philadelphia Nat‘l League Club, 579 F2d 37 (CA 3, 1978). As in Bayless, Moll involves the question of someone‘s wrongdoing, not in the sense of a known breach of a legal duty, but whether there is a connection between plaintiff‘s condition and some causal factor. Thus, if there were evidence in the record in Moll to suggest that plaintiff could have learned of defendant‘s responsibility had she exercised due diligence, summary judgment would be appropriate.
With the doctrine of reasonableness as a constant and the standard of due diligence as a guide, courts are able to determine when a plaintiff knew or should have known of an injury and its possible or likely cause, as well as whether there is a disputed issue of fact that requires jury resolution. Without a flexible approach, the purpose of adopting the discovery rule for latent injuries, as well as the procedural presumption favoring the nonmoving party on summary disposition, will be undermined.
The discovery rule is applied to a growing variety of situations in which the nature of the injury
Whether it can be said as a matter of law that a plaintiff has exercised reasonable diligence turns on the nature of the injury, its symptoms, and available medical knowledge. Where a plaintiff experienced bleeding between periods, nausea, and diarrhea, but was told by her physician that she was asymptomatic and that she did not have pelvic inflammatory disease, began her lawsuit within three years of consulting another doctor who removed her IUD and told her she probably had PID, the court found that the plaintiff could not be expected as a matter of law to “personally diagnose her condition or consult with a physician more frequently than she did.” Hansen v AH Robins, Inc, 113 Wis 2d 550, 561; 335 NW2d 578 (1983). Illustrating the same principle in the context of the latent injury of asbestosis, the court in Morgan v Johns-Manville Corp, 354 Pa Super 58; 511 A2d 184 (1986), held that summary judgment was properly granted regarding one shipyard
Whether or not [the plaintiff] exercised due diligence and thus should have known that pleural thickening was an injury is also at issue here. We do not believe that the facts “lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable as a matter of law.” [354 Pa Super 66. Citation omitted.]
In Moll, the issue is not the injury, but who or what hurt plaintiff and whether, as a matter of law, plaintiff should have discovered the cause of the injury. I would remand Moll, not for the determination ordered by the Court of Appeals, i.e., whether DES was a “likely” cause of her hooded cervix, but rather for a determination whether, given the circumstances presented, a plaintiff exercising due diligence would have discovered the operational cause of the injury. If, from the facts presented, a jury could reasonably conclude that plaintiff acted diligently in pursuing who or what caused her injury, summary judgment should be denied.
I acknowledge that in the only case found on point in which the plaintiff had no confirmation of the diagnosis that her mother had taken DES, the majority upheld the granting of summary judgment. See O‘Brien v Eli Lilly & Co, 668 F2d 704 (CA 3, 1981). In my view, the better approach is that pointed out by Judge Higginbotham in dissent in O‘Brien:
A reasonable jury could have concluded that, in insisting in 1979 that her mother double-check her recollection [that she had not taken DES], [the plaintiff] made extraordinary efforts; that, in fact, she discovered that her mother had taken DES only through the exercise of due diligence. The majority‘s conclusion effectively penalizes her, at least in terms of her right to a trial, for the efforts she made in 1979. [Id. at 719.]
MALLETT, J. (dissenting). Although I concur with the majority‘s analysis, I dissent from the majority‘s holding that Judith Harrington‘s suit is barred by the statute of limitations. The majority holds that in a pharmaceutical products liability action, the statute of limitations commences when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered the injury and the causal connection between plaintiff‘s injury and defendant‘s breach. Applying this standard, the majority concludes that Jean Moll knew or should have known of her possible cause of action no later than August 1976. Since evidence of her condition and the possible cause thereof was overwhelming, I agree that Jean Moll‘s suit is barred by the statute of limitations.
However, I dissent from the majority‘s conclusion that Judith Harrington knew or should have known of her injury on December 27, 1983. On December 27, 1983, Dr. Stern informed her that a possible cause of her inability to conceive was her bicornuate uterus, that may have been caused by exposure to DES. In early 1984, only a few weeks after Dr. Stern‘s diagnosis, Judith Harrington became pregnant. As a result, she achieved that which her injury was to ultimately prevent. Her injury did not manifest itself until April 1984, when she miscarried. Therefore, because the conse-
The majority‘s unforgiving application of the discovery rule ignores the objective reality of Judith Harrington‘s circumstances. The record does not contain Dr. Stern‘s exact statements to her. Without this imperative information, it is impossible to confidently determine what she knew or should have known. If Dr. Stern unequivocally informed her that because of her exposure to DES she could never carry a child to term, I could concur with the majority‘s conclusion that the statute of limitations was triggered on December 27, 1983. However, without the record indicating otherwise, I assume that Dr. Stern‘s message was typically ambiguous and qualified. Consequently, her suit is not barred by the statute of limitations.
LEVIN, J. (dissenting). These cases, consolidated on appeal, concern the application of the discovery doctrine to causes of action claiming injury as a result of DES1 exposure.
In Moll v Abbott Laboratories, the Court of Appeals affirmed a denial of the defendants’ motion for summary judgment on the ground that the statute of limitations did not begin to run until Moll learned that she likely had a cause of action. I would vacate that decision and remand for trial on the issue whether Moll acted with reasonable
In Harrington v Abbott Laboratories, the Court of Appeals affirmed the circuit court‘s grant of summary disposition in favor of Abbott Laboratories on the ground that the statute of limitations began to run when Harrington learned of an abnormality of her uterus. I would vacate the decision of the Court of Appeals and remand for trial on the issue whether Harrington should have discovered that she was injured by DES exposure before she learned of her infertility.
I
Jean Moll has an “incompetent cervix,” and for that reason is unable to carry a pregnancy to term. Because her cervix appeared irregular, her gynecologist, in 1975, asked her if she had had an abortion. She had not, and the gynecologist said that she had nothing to worry about regarding her cervix. Another gynecologist, in 1977, told her that she had a “hood over [her] cervix,” asked her if her mother had taken DES while she was pregnant with Moll, and asked that she obtain her mother‘s medical records. That physician also told her that her cervix “didn‘t look good,” that the condition might be related to exposure to DES, and that her difficulty conceiving might be related to DES. The physician added that DES exposure could lead to some forms of cancer. The physician also advised her to have a fertility test. Moll did not have the test at that time because she was “too chicken” and preferred to continue attempting to conceive.
By 1985, Moll, not having become pregnant, had the fertility test. After the test, her physician identified the hooded cervix as the probable cause of her inability to conceive.
In October, 1988, Moll obtained medical records establishing that her mother had taken DES. Abbott Laboratories then moved for summary disposition, asserting that Moll‘s claim was barred because more than three years had elapsed since she knew or should have known that her injuries may have been caused by in utero exposure to DES.
The circuit judge denied the motion. The Court of Appeals affirmed, but remanded for a finding when a reasonable person in Moll‘s circumstances would have concluded that her mother‘s ingestion of DES was a likely cause of her hooded cervix.
A
The issue is whether Moll exercised reasonable diligence in discovering that DES exposure had caused her cervical condition and inability to conceive.2 I agree with my dissenting colleague3 that in assessing the reasonableness of Moll‘s delay in commencing this action, one should consider a number of factors including whether Moll sought to learn whether her mother had ingested DES, had
In the DES context, the concept of reasonable diligence should take into account that when a reasonable woman learns that she may be afflicted with a serious reproductive disorder, she may initially take steps to address her medical problem in light of the available medical information and the course of treatment prescribed by her physician. Such a reasonable woman may reasonably continue to focus on the healing or diagnostic process until she has reasonable confidence that her condition has been correctly diagnosed or is under control. Reasonable diligence should include as a factor that a woman anxious to have children may, although advised that she may be a victim of defective drugs, be more concerned about her health and achieving conception than abandoning those efforts in favor of recourse to the courts.5
B
The record on appeal is sparse. We are therefore not in a good position to evaluate comprehensively the reasonableness of Moll‘s behavior in delaying the commencement of this action.6 We do not have
Moll‘s testimony shows a woman confused about her condition, unable to obtain her mother‘s medical records, and fearful of a fertility test. Moll was receiving mixed signals from her physicians, who appear to have sought to alert her to the possibility of DES exposure without unduly frightening her. For instance, as the majority notes, in 1978 Moll was informed that the results of her colposcopy “were . . . fine” and also that “there was no cause for real concern at that time,” but also that her cervical condition could indicate DES exposure which could lead to cancer.
After receiving these mixed signals about her health and the warnings about possible DES exposure, Moll did make an attempt to locate her mother‘s medical records in 1979. Her mother‘s records had been stored at the Highland Park General Hospital, which had since closed because of fire, and Moll was unable to obtain the records. Moll‘s physician then made an unsuccessful attempt to locate the missing records. That, too, failed. Moll decided to focus her energies on conceiving a child to determine if the DES exposure had truly left her unable to bear children. She did not pursue the medical records again until after this action was commenced. Even then, Moll was able to find and obtain the records only pursuant to a court order. The records finally confirmed that Moll‘s mother had been treated with DES during Moll‘s gestation.
C
The majority concludes, as a matter of law, that
The consultations with her physicians concerning her possible DES exposure came while Moll was undergoing examination and treatment for ailments such as excess vaginal discharge and infertility. The trier of fact could reasonably conclude that during this period Moll was reasonably justified in focusing on solving her medical problems rather than immediately searching to discover whether DES was a cause of those problems.
In all events she made a good-faith attempt to discover whether DES was a cause, without success. Moll and her physician each made attempts to find her records in the late 1970‘s, but failed to do so. A reasonable trier of fact could conclude that due diligence required no more.
D
In holding that the statute of limitations begins to run as soon as a woman, situated as was Moll,
The Ohio Supreme Court recently struck down a DES-specific statute of limitations—which mirrored the Court‘s approach in this case—because the statute did not afford DES-exposed women a reasonable opportunity to bring a claim for their injuries. Burgess v Eli Lilly & Co, 66 Ohio St 3d 59; 609 NE2d 140 (1993). The statute at issue in Burgess provided that a cause of action for DES-related injuries accrues “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. . . .” Id. at 61. In the Ohio court‘s words, the statute of limitations “is triggered when the plaintiff learns that she possibly has a DES-related injury.” Id.
In a well-reasoned opinion, the court explained why the statute was unreasonable:
If a plaintiff were to file a complaint stating that she suffered a bodily injury which might be related to DES, the complaint would be dismissed for failure to state a claim. . . . Because the statute of limitations begins running when there is the slightest evidence that DES may be a possible cause of plaintiff‘s symptoms, an attorney may be forced to file a complaint long before he can believe that
there is good ground to support it. The alternative is to file no complaint. A plaintiff encounters further difficulties at the summary judgment level. A claim . . . must be filed based upon the possibility of an injury. A plaintiff faces the likely prospect that her claim will be unable to survive a motion for summary judgment. [Id. at 62.]
The “possible” claim approach was seen as unreasonable8 by the Ohio Supreme Court because it deprived plaintiffs of “an opportunity for remedy at a meaningful time or in a meaningful manner.” Id. at 63. The majority‘s approach deprives women of remedies for DES-related harms in much the same way as the Ohio statute in Burgess.
II
Judith Harrington was exposed to DES in utero. She became aware of her DES exposure in January, 1975, and, between 1975 and 1983, saw several physicians who informed her that she exhibited certain abnormalities associated with DES exposure, including having a mosaic on her cervix. In 1983, because she was having difficulty becoming pregnant, she had an HSG test—an x-ray of the uterus and fallopian tubes. On December 27, 1983, her physician informed her of the results of the test—that she had a bicornuate uterus, and that it might also be abnormally T-shaped, which could cause difficulty in conceiving or carrying a preg
During that office visit the physician told Harrington, however, that while some DES exposed daughters have difficulty conceiving and carrying a pregnancy to term, he was optimistic it would not be the case with her.10
Harrington became pregnant in January or February, 1984, and miscarried in March 1984. Her physician then performed a D and C and informed her that after a better look at her uterus, he found that it was too small to permit her to carry a pregnancy to term. The physician advised her not to become pregnant again.
Harrington filed this action on December 30, 1986.
The circuit judge granted Abbott Laboratories’ motion for summary disposition on the basis that, pursuant to the discovery rule set forth in Larson v Johns-Manville Sales Corp, 427 Mich 301, 309; 399 NW2d 1 (1986), the three year statute of limitations began to run on December 27, 1983—when Harrington learned of the result of the HSG test and knew that she had suffered “some damage” in the form of a misshapen uterus. The Court of Appeals affirmed.
A
The issue is when Harrington “knew” or “should have known” that she was “injured.” Larson,
Exposure to DES can have multiple effects—some of which will develop into compensable injuries—including cancer, uterine abnormalities, and difficulty with conception and then carrying a pregnancy to term. Not all the effects caused by DES exposure are in fact “harms” or “injuries” at the instant that the DES effect is discovered.
Harrington‘s physician told her that DES exposure might have caused the development of her abnormal uterine condition. He also told her that this condition could cause difficulty in conceiving and carrying a child to term, but he was optimistic that would not be the case with her.11 At the same time, her physician advised her that many DES-exposed daughters do not have difficulty bearing children. The trier of fact could reasonably conclude that when Harrington first learned of her uterine condition it was not causing her any harm, and that she was reasonably justified in not considering it to be a present injury.
The Court errs in defining Harrington‘s initial uterine condition as her injury and in defining the infertility as mere “additional consequences” of her “physical abnormality.” Ante at 20. Harrington‘s physical abnormality was not, in itself, clearly an injury that would cause her any sort of distress. Only after Harrington discovered that the physical abnormality would indeed prevent her
The majority‘s approach places plaintiffs like Harrington in an untenable position in much the same way as the majority placed plaintiffs like Moll in an untenable position. The majority would have had Harrington file her action before she learned whether the uterine condition would truly be a problem. If she would have filed an action when she first learned of her uterine condition, before she knew whether the condition would cause infertility or other health problems, her action would probably have been dismissed on a motion for summary disposition. At that juncture, Harrington would not have been able to show how she had been harmed by DES. Her own physicians were telling her that they were optimistic that she could have children even with the uterine condition. Harrington would not have been able to identify any harm she was then suffering from the DES exposure, nor could she have carried the burden of showing that it was reasonably certain that her DES-related condition would eventually develop into a compensable injury. See Larson.13 A reason
III
The majority also errs in holding that a circuit judge should decide, on a motion for summary judgment, whether Moll and Harrington exercised due diligence in discovering the nature and extent of their injuries. The majority states that a circuit judge “does not have to remain idle in the presence of undisputed, uncontroverted facts” where “the only question remaining is what legal conclusion can be drawn from the facts.” Ante at 27-28.
It is well settled as a matter of both Michigan and federal civil procedure that it is for the trier of fact, generally the jury, to decide where reasonable persons can draw different inferences from undisputed facts. In DiFranco v Pickard, 427 Mich 32, 54; 398 NW2d 896 (1986), this Court said, “where there is no material factual dispute, a motion for summary disposition (as well as directed verdict and judgment notwithstanding the verdict) should not be granted if the facts can support conflicting inferences.” See also Windsor Securities, Inc v Hartford Life Ins Co, 986 F2d 655,
The undisputed facts in both Moll and Harrington are subject to conflicting inferences. Reasonable minds could differ concerning when Harrington knew or should have known that she sustained a compensable injury: was the key event the discovery of the misshaped uterus or the discovery that the consequence of that uterine condition would be infertility? Reasonable minds could also differ whether Moll acted with due diligence in pursuing the DES exposure issue. The answers to the questions posed by these factual situations are far from clear. Thus, judgment as a matter of law is appropriate in neither, and both Moll and Harrington are entitled to a determination by the constitutionally ordained trier of fact, a jury.
In a closely related discovery case, also involving a claim for DES-caused injuries and in which there was “no dispute between the parties as to the essential evidentiary facts, but only as to the ultimate conclusion to be drawn from those facts,” the United States District Court for the District of Massachusetts held that the resolution of the question “whether, under all the circumstances, [the plaintiff] reasonably should have discovered the cause prior to” the running of the statute of limitations “requires a determination of the reasonableness of plaintiff‘s conduct,” and therefore did “not lend itself to determination as a matter of
IV
Neither of the primary justifications for applying the statute of limitations—the barring of stale claims and providing the defendant reasonable notice of potential claims—is served by closing the courthouse door to Moll and Harrington and their DES sisters.
As the Rhode Island Supreme Court observed, allowing plaintiffs such as Moll and Harrington to bring DES claims long after their mothers ingested the drug does not unfairly “‘force an unfresh claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses.‘” Anthony v Abbott Laboratories, 490 A2d 43, 47 (RI, 1985). Rather, in DES cases:
“Most of the evidence necessary to prove or
defend against liability is likely to be documentary in nature. It is not the kind of evidence that is lost or becomes unreliable as time passes. Companies generally compile and maintain research records that document the extent of their knowledge of the harmful propensities of their drugs. Certainly, doctors and hospitals meticulously maintain and store records of patient treatments.” [Id. Citations omitted.]
See also Raymond v Eli Lilly & Co, 117 NH 164, 174; 371 A2d 170 (1977) (noting that extending the statute of limitations against drug companies is equitable, inter alia, because “unlike the situation in most cases, the passage of time in a drug case is likely to increase both the amount and the accuracy of the evidence“). Indeed, “because this product [DES] usually affects a different generation from that which received the product, plaintiffs and not defendants would be most prejudiced by faded memories, misplaced records, or deceased witnesses.” Anthony, 490 A2d 47. Thus, the claims in the instant cases are hardly “stale,” and the passage of time has not deprived the pharmaceutical companies of relevant evidence that would support a defense.
Allowing Moll and Harrington to proceed would not force the pharmaceutical companies to defend against wholly unexpected claims. Indeed, since well before the landmark case of Sindell v Abbott Laboratories, 26 Cal 3d 588; 163 Cal Rptr 132; 607 P2d 924 (1980) (approving the market-share basis of liability for DES manufacturers), the pharmaceutical companies who manufactured DES have had actual notice that potentially thousands of so-called “DES daughters” would have possible causes of action.
The hundreds of reported DES cases against these
I would remand the cases for trial.