O'brien, Ann C. v. Eli Lilly & Company E. R. Squibb & Sons, Inc. The Upjohn Company, and Winthrop Company, Inc

(2) An action damages to recover ALDISERT, Before HIGGINBOTHAM injuries person or for the death of SLOVITER, Judges. Circuit an wrongful individual caused the act neglect negli- or unlawful violence or THE OPINION OF COURT gence of another. ALDISERT, Judge. Circuit 5524(2). 42 Pa.Cons.Stat.Ann. The dis- § question The appeal for decision this applied trict court statute in granting this from a in favor of four appellees’ summary judgment. motion for pharmaceutical defendant manufacturers in Appellant’s warranty implicate claims a diversity action is whether the district four-year statute and are discussed below in properly applied court Pennsylvania the Part IV opinion. of this rule,” “discovery person- which modifies the express legisla Statutes limitation the al statute of limitations. The dis- public tures’ policy judgments of long how that, trict court determined if she had exer- plaintiff may delay being suit without diligence, appellant cised due Ann O’Brien unfair to a defendant. Overfield v. Penn reasonably could have discovered in Febru- Corp., F.Supp. (E.D.Pa. road 42 614 taken Di- ary 1976 that mother had 1941), aff’d, 1944). 146 F.2d 889 (commonly known Stilbes- ethylstilbestrol legislative “These and similar enactments DES) during trol or pregnancy her 1956 expressive feeling' are of the of mankind drug the arguably appellant’s caused wrongs that where there are to be re subsequent cancer. She did not file her dressed, they should be redressed without complaint 31, 1979; until December accord- delay, unreasonable and where there are ingly, the district court concluded that the enforced, rights to they be should be en suit was two-year barred statute of delay.” forced without unreasonable Ula limitations. Appellant contends Co., Metropolitan kovic v. Life Ins. 339 Pa. whether possessed she neces- 571, 576, (1940).1 16 A.2d sary in running 1976 to start of the Nevertheless, statute question. Conceding Pennsylvania courts have case, this is a recognized close we potential nevertheless harshness inherent Supreme Pennsylvania change 1. The lapse Court of Waring Ulako- with the time. following explanation vic Co., set forth the Pennsylvania of the Bros. v. R. R. 176 Pa. policy Pennsylvania 106, 107, court, behind statutes of limita- opinion by 35 A. in an tion: Green, quoted approval Justice what always policy It has Chief Justice Black said in Huffman’s Heirs been the of the law to expedite Stiger, litigation encourage Pittsb.Leg.J. long 185: “No honest not to delays. willing country From this fact arose the man would be live in various stat- limitations, why require prove utes of and the reasons where the law would him to delayed litigation injustice every law unfavorable to are the actual falsehood and any person right self-evident. If cupidity might has a which stale claim which malice or enforced, he wishes he should dig up against enforce it him. Hence we have statutes promptly. person against limitation, and, whom the they in cases to which do right might greatly preju- is to be enforced be apply, presumptions we have which are by plaintiff’s delay. disap- diced Witnesses equally strong.” pear parts or remove to distant and the entire 339 Pa. at at A.2d 42-43. aspect parties may on both sides law, period Pennsylvania action under of the statute rigid application in a igno the time exception: begins to run “from out an of limitations long ago carved delay running of rea injury may plaintiff, through the exercise of an rance Lewey v. Fricke diligence, should have learned both the statute of limitations. sonable (1895). The Co., 31 A. 261 those facts 166 Pa. Coke the facts inj “discovery rule” an relationship to the judicially created causative bore some expanded 467; Lewey has been F.Supp. see ury.”2 Gemignani, nounced is aware of his refining who except the 40. In further Bayless, 579 F.2d at Morgan, Ayers v. injury test, but not its cause. Pennsylvania courts have devel the 282, (1959). Federal 154 A.2d 788 397 Pa. precise analysis defining the ele oped a helped to refine circuit have courts in this discovery Coyne v. Por rule. ments have noted district courts precept. 1, 5-6, Our Co., the 428 Pa.Super. ter-Hayden 286 delays the accrual of a cause the rule 208, (1981); Anthony Kop v. 209-10 A.2d the time of a defendant’s of action from 81, 95-97, Co., 425 A.2d Pa.Super. 284 pers injury the to a time when tortious conduct rev’d, 428, grounds, 496 (1980), other 436 knowable, known or and its cause become 119, (1981); Volpe v. 181 Pa. 436 A.2d Nat’l Gemignani Philadelphia v. Phillies 290, 295 4 Corp., P.C.R. Johns-Manville 465, Club, F.Supp. 467 League Baseball 287 will discuss 1980). We County (C.P.Phila. (E.D.Pa.1967), that it is a rule intended to this III of in Part in detail analysis this potential it avoids plaintiffs benefit in that opinion. injury “inher injustice caused where an measure the discovery rule to use the We at the time of a defend ently unknowable” adduced facts conduct, F.Supp. Delp, Landis v. 327 ant’s presented We are below. proceedings 766, (E.D.Pa.1971); Prince v. Trustees 768 interpretation of choice awith Pennsylvania, F.Supp. 282 of the Univ. of over dispute is rather the precept; 832, (E.D.Pa.1968); Beryl Daniels v. 840 the facts precept to application of 591, (E.D.Pa. Corp., F.Supp. 227 595 lium willWe district court. to the presented 1964), legislatively declared and that light in detail and the facts review repose judicial adminis desirability for essentially appellant, favorable most unduly af expediency will not be trative brief. forth in her as set “inherently fected the small number Trustees, injuries, v. unknowable” Prince II. Moreover, court, in F.Supp. at 840. this 282 O’Brien, 1956, appel- Club, July Mary Ann League In Philadelphia Nat’l Bayless v. mother, L. consulted Dr. Kenneth (3d 1978), v. lant’s Cir. and DaMato 579 F.2d 37 obstetrician, all, Ltd., Cooper, gynecologist 651 F.2d 908 Turner & New pregnancy with concerning 1981) curiam), adopted reasoning (per 18, O’Brien, February was born on who colleague announced our precept and the previous Mrs. O’Brien’s (then 1957. Because Higginbotham, Jr. a district A. Leon miscarriage, had terminated in personal injury pregnancy judge) Gemignani: in a brought that accrued before the dece- Gemignani cause of action action under the was an death, Act, Pennsylvania of the caus- where the Survival 20 dent’s Pa.Stat.Ann. injury (reenacted and its cause 42 al between the 320.601 as Pa.Cons.Stat.Ann. connection § 8302). denying after the decedent’s In a motion for is not discovered until § death, pre- adopted judgment, Judge Higginbotham has that can be no action accrued Anthony discovery developed personal v. the survival statutes. rule rationale served under Ayers 119, (1981). property damage Co., injury 436 A.2d 181 Koppers cases. See Pa. 496 282, (1959); Morgan, Pennsylvania expressly 154 A.2d 788 limited its 397 Pa. court Co., Telephone wrongful 397 Pa. ac- Smith v. Bell death to survival decision tions, 184; Recently Supreme therefore, (1959). Court A.2d at id. at A.2d Pennsylvania distinguished ap- Judge Higginbotham’s survival actions discussion insofar personal injury actions, actions. It held be- personal from plies we continue to merely permit actions a dece- cause survival persuasive. consider personal representative to enforce the dent’s 26, 1956, Cooper July prescribed Dr. Shortly appellant’s before surgery, in the milligrams deposition of Stilbestrol. In her fall of her mother met with Dr. Miku- Cooper Mrs. O’Brien recalled that Dr. During ta. meeting, Dr. Mikuta asked prescribed during some medication this Mrs. O’Brien whether she had ever taken pregnancy, specif- but she did not know the diethylstilbestrol prevent a miscarriage. taking ic kind. pill” She did recall a “red or Mrs. taking O’Brien denied the medication. pill” during “white pregnancy ap- App. at 122-23. pellant. App. at 102-03. Mrs. O’Brien tes- Dr. Scully and Dr. Arthur Herbst tified: “I took prescribed whatever he Hospital reported Massachusetts General it, questioned it, never simply ... took if in the medical literature an association be- prescribed it, he I took it.” Id. at 102. tween ingestion diethylstilbes- maternal During the summer of when she trol pregnancy and clear cell adeno- years old, appellant experi- fourteen carcinoma in the offspring female of that vaginal bleeding. enced unusual In Sep- pregnancy. As a means of centralizing year, upon tember of that examination cases, data obtained from such Drs. Herbst gynecologist, Dorko, Dr. Carl and following Scully Registry established a for Ade- pediatrician, a recommendation her Dr. nocarcinoma of the Young Genital Tract in Procopio, Frank she was admitted to the Women. Dr. Mikuta was familiar with the Harrisburg Hospital diagnosis. Dr. work of Drs. Scully. Herbst and He dis- Dorko performed discovered a tumor and a appellant’s cussed case with Dr. Herbst as biopsy. In pathology addition to the report well Cooper as with Drs. and Dorko in late prepared by Harrisburg Hospital pa- early 1972. thologist, biopsy slides were sent for In October Dr. Herbst wrote to Dr. evaluation to Scully, patholo- Dr. Robert a Dorko, enclosing questionnaire two forms gist at Hospital. Massachusetts General pertaining to appellant, treatment, her Scully responded Dr. that the tumor “fits history, medical family history. Fol- category into the of clear cell carcinoma lowing a telephone conversation with Mrs. occurring young women that we have in January O’Brien Dr. Dorko sent her frequently found to be associated with ma- asking one the forms her to “fill out as ternal Stilbestrol App. administration.” at you much of it as App. can.” at 186-87. 178. Dr. Dorko informed Mr. and Mrs. The form question, included the “Did moth- O’Brien of the biopsy results and referred er take hormones during pregnancy?” Mrs. daughter their for treatment to Dr. John stated, affidavit, O’Brien has in an that the Mikuta, gynecologist oncologist at the answer “No” on the form is in her hand- Hospital of the University of Pennsylvania. writing and placed was there in late Janu- There, October under- ary App. at 186. The form also went a radical hysterectomy, lymph node asked for “Other during medications taken dissection, partial vaginectomy. She (name, pregnancy dosage, and when tak- received therapy radiation for six weeks. en).” Diethylstilbestrol among is not Appellant’s parents requested that she medicines Mrs. O’Brien response. listed in not be told that her malignant. tumor was All participating Shortly doctors in her before diagnosis regular appointment her cooperated and treatment with that with Dr. Mikuta in February appel wish parents and her did not themselves tell her lant read an article January in a 1976 issue malignancy. of Newsweek.3 At this time she knew that stated, part: 3. The article diethylstilbestrol (DES), synthetic scribed estrogen widely Malloy, childbearing used in For Grace such cases at did not Patti, easily. daughter, Although daughter come time. A first second was deliv- complications, yet miscarriage, was bom in 1946 without ered 1951. After another subsequent pregnancy miscarriage. Malloy pregnant ended in Mrs. became a fifth time pregnancy again When given daugh- her next she also and was DES. Another signs miscarrying, pre- ter, Marilyn, showed her doctor was born in 1956. miscarriage be- A. No. suffered her mother had App. at 157. She born. appellant was fore Q. you why they he tell were not Did was her mother’s Cooper Dr. also knew that sure? at 156. obstetrician. Id. A. No. recollected the ar- deposition, Ann In her with Dr. subsequent discussion ticle and

Mikuta: Q. you indicate to Did Doctor Mikuta Well, girl talked about a A. the article cancer responded he why and the taken DES whose mother'had pointed to DES? the article talked And had cancer. girl cancer that it type A. Because of the surgical proce- procedure, about the is or was. through. gone dure . . . that she Q. say you? he that to Did happened to her after And what A. Yes. and she died. procedure everything pointed about Q. say you

And he ever Did gone through almost that she had had taken your because mother DES —or gone what I had everything it? —was close, the through. And it was all too think so. A. I don’t concern, cancer, my and this was App. at 156-57. 147— quite point. And I was April confronted Mikuta, O’Brien very I was upset with Doctor concealing the truth wanted an answer from her mother about adamant that I cancer or not. And very upset him whether I had about the tumor. She he said that I did. with Mrs. parents her and dissatisfied withholding whether it was in Q. you explanation Did ask him O’Brien’s any way related? DES of that During the course information. confrontation, her pointed appellant it to also asked A. Yes. And he said that they were not sure. that but whether she had taken DES mother taking they pregnancy. her Her mother denied Q. pointed It to were not DES drug. Although sure? Mrs. O’Brien does asking prior Sep- daughter to remember we continued to talk A. Not sure. And DES, 1979 whether she had taken about cancer. tember recollection of the 1976 conver- appellant’s Q. you why pointed he to Did tell very App. is clear. at 149-51. sation DES? Marilyn’s Marilyn A short time later condition It was not until Patti and were 19 appetite, Malloy newspaper suffered read a worsened. She lost her and 14 that Grace deadly report linking headaches. Tests DES to a rare but form from nausea and severe young vaginal in women whose had reached her of cancer revealed that the cancer during preg- Marilyn pituitary gland, hormone underwent mothers had taken the Alarmed, Malloy nancy. grueling regimen Mrs. asked her doc- of “whole head” six week anything this “scare.” tor if there was hair out as a radiation. When all her fell is,” replied. your result, self-pity give he “You bet life there refused to in to she still get girls life, wearing kept up those in for an exami- “You’d better an active social right away.” night The result was bad bright nation But at Mrs. scarf over her head. Marilyn vaginal Malloy daughter moaning news: cancer. could hear her Malignancy: operation lasting In an more continuing pain that was its with the cancer hours, Marilyn’s vagina arms, than twelve legs, spine spread through her lethal removed; nearby lymph glands arti- were an and confined brain. Soon she was blind vagina using was constructed skin ficial 26, May Marilyn wheelchair. died on to a hope- grafts legs. from her The doctors 1974, high school two weeks before they malignan- the entire ful that had excised graduation. class’s cy, year they that the but a later discovered Newsweek, 26, January Daughters of lung, esophagus spread cancer had to one 66, 1976, reprinted app. at 185. at Following lining anoth- and the of the heart. Marilyn sufficiently operation, er recovered riding. passion to resume her —horseback later, years (2) Three in the summer knowledge operative of the cause of appellant mag- injury; (3) became aware of additional knowledge of the newspaper relationship azine and articles on the rela- causative between the injury tionship ingestion by pregnant operative and the conduct. DES women to the incidence of cancer in female P.C.R. 295. offspring. Although the record does not set Measuring against the instant facts articles, forth content or text of these standard, three-part we persuaded are again by she testified that she was struck when Ann O’Brien was told that similarity between her own medical his- cancer, acquired she had had she knowledge tory type and the of cancer and treatment injury; of her and that when she read the App. described. at 153-54. Newsweek article and consulted with Dr. September which, appellant again acquired knowledge asked Mikuta she from by her mother if she had the exercise of due diligence, taken DES while she could pregnant, again replied alleged operative and Mrs. discovered both the O’Brien time, however, injury cause of her ap- ingestion she had not. This mother’s —her pellant DES —and the causal relationship insisted that her mother call Drs. be- operative tween the Cooper injury. conduct and her and Mikuta in order to determine if in fact she drug. According had taken the Appellant element, concedes the first appellant, both doctors confirmed that it injury but she con- prescribed had been for Mrs. O’Brien. Mrs. tends that there controversy was sufficient Pharmacy O’Brien also contacted the Kolb regarding the second and third elements to attempt identify an the manufacturer require submission to a factfinder the issue diethylstilbestrol purchased she had acquired when she could have informa- there, phar- but found that records tion about the causal relation to macy might have maintained were de- diligence. exercise of due agree. We do not stroyed in the “Agnes” Hurricane flood of dispute There is no to be resolved Thereafter, on December factfinder. solely whether complaint against filed her four from presented the facts could rea- leading manufacturers of DES. sonably appellant, conclude that if she had diligence,

exercised due could not have dis- III. operative covered the cause of her relationship and the causal in 1976. Newall, Ltd., In DaMato v. Turner & 651 1981)(per curiam), F.2d 908 we not- Appellant argues that because she did not Pennsylvania’s acceptance ed of a standard know that her mother had taken DES until defining the level knowledge plain- September acquire she did not actual tiff must have period before the of limita- knowledge injury of the cause of her until will tions start to run. Anthony See acquisition then. The of actual knowledge, Co., Koppers 95-97, 284 Pa.Super. 425 however, trigger the running for the (1980), rev’d, A.2d grounds, other period of the limitations Pennsylva- under (1981). Pa. As set 436 A.2d inquiry, appellant nia law. The correct forth Pennsylvania Common Pleas Court recognizes, is not whether she had actual Judge Volpe Takiff in v. Johns-Manville knowledge of all Volpe three elements be- Corp., (Phila.C.P.1980), 4 P.C.R. 290 fore but “whether should reason- [she] standard has three elements: ably charged be knowledge that before With the of “reasonableness” as that Appellant time.” Brief for at 19. We qualification a constant running through Bayless held in that the statute runs “from law, principle decisional emerges plaintiff, through the time the the exercise three independent phases of diligence, knowl- of due should have learned” the edge must be known or relationship. knowable to facts and their 579 F.2d at 40. plaintiff period before the policy by Judge limitations The enunciated Takiff in (1) commences: knowledge of the injury, Volpe applicable: is also knowledge injury similarity appellant’s his or its in 1976 ignorance Plaintiff’s knowledge of his cause in The may render to her record cause But only action and unknowable. two historical events of 1979 unknown shows the salient facts con- possesses supplementing once he the basic factual matrix of injury (1) of his and cerning appellant the occurrence read some additional 1976: it, the ability (2) or what caused he has who she insisted that her articles DES investigate pursue his claim. to Cooper prescribed mother ask Dr. if he had Postponing the commencement of pregnancy. to her DES her period actually limitations until he has appellant record does not indicate that ac- nullify justifiable ra- done so would reading her quired knowledge from about of limitations and tionale of the statute relationship in 1979 that DES-cancer permit prosecution of stale claims. previously acquired had not in 1976. she Indeed, the entire on this is most record Volpe, Although Volpe 4 P.C.R. at 303-04. scanty: relationship discovery with the dealt action, ignorance legal

rule to of a cause of quite A. There seemed to be a few arti- present the same considerations are in a [Washington] cles on in which a facts sufficient case has just magazines. Post and . .. and it prompt investigation to an but does not things really seemed like show- investigate. ing up in publications. And I was reading it. her more about appellant’s The flaw in case is failure present permit to evidence sufficient to a App. at 153. The record as to the new reasonably to find that she could not gained Cooper information from Drs. possessed concerning “the salient facts compels Mikuta in 1979 also our conclusion injury the occurrence of and who or [her] the crucial information on causation what caused it” before 1979. The facts upon inquiry was available reasonable opinion recited in Part II of this demon- spe 1976. The 1976 Newsweek article was appellant strate that in 1976 knew the facts presented history par cific a case necessary investigation: (1) complete appellant’s many ways. alleled The rec prior that her mother had miscarried fails to show that the articles ord read birth, (2) appellant’s appellant’s medi- after new in 1976 contained history similarity cal had a marked operative either the formation about cause history young medical of other women relationship oper or the causal between the whose cancers had been linked DES in- ative conduct and the that was not gestion by previously mothers who had mis- contained in the 1976 Newsweek article. carried, (3) that her doctors believed her Similarly, appellant’s provided mother in history pointed medical in the direction of that, effect, merely formation in 1976 she (4) identity of her mother’s repeated in 1979. When asked obstetrician. daughter having the mother denied again

The district court’s conclusion that as a taken DES. When asked the appellant unreasonably persisted matter of law de- mother in the denial. Given the circumstances, layed investigating by foregoing appears is underscored the there [my that, you 4. A. I called and I told her that I Did she do do know? mother] Q. Yes, reading did, had been the news articles and what A. she Mikuta said she [Dr.] drug I had read in them and how it sounded so must have taken the because of the kind gone through similar to what I had and what of cancer that had. happened your report you me and that I wanted to Did mother about Q. again Cooper know from her if she had taken that what Dr. said? no, drug. And she said that she didn’t take That it had told that it had A. been —he pre- it. that it was been indicated on his record you any Did ask her to make further Q. scribed but she nevertheless does not remem- inquiries? taking drug.... ber the Yes, A. I asked her to call Mikuta and App. [Drs.] at 154-55. Cooper about it. appellant By original of action has the persuasive' why be no reason accrued. not, “through agreement parties may could the exercise of due the reduce the diligence,” requested period her mother to of limitation to not less than one Cooper then to learn “both the facts year may call Dr. not extend it. facts bore some and that those (b) Accrual cause of of action. —A injury.” relationship causative See when, cause of action accrues the breach Bayless, 579 F.2d at 40. occurs, regardless aggrieved par- of the ty’s knowledge lack of the of breach. A polestar Pennsylvania warranty breach of occurs when tender discovery plaintiff’s rule is not a actual delivery made, except of that where a acquisition knowledge but whether the warranty or, explicitly per- extends to future knowledge through was known the exer goods formance of the diligence, plaintiff. discovery cise of knowable to We that, the agree with the breach must await the time of such district court as a law, performance the cause of matter of the crucial action accrues when the knowable to the in 1976 and could breach is or should have been through have been obtained the exercise of discovered. Therefore, diligence. its

due conclusion Except explicit for warranties of future that the action is barred the statute of performance, the expressly rejects statute limitations must be affirmed. discovery rule similar to the one that has developed personal injury been for actions. IV. Applying the statute to the facts of this only appel We need consider one of case, appellant’s cause of action accrued in remaining lant’s contentions.5 In her com purchased 1956 or 1957 when Mrs.. O’Brien plaint, appellant a claim advanced for drug. Only warranty explicitly if the warranty. breach of Under Uniform performance ap- extended to future would Code, Commercial the statute of limitations pellant’s cause of action be deemed to have period applicable warranty to breach of ac accrued at discoverability. date of years. tions is four 13 Pa.Cons.Stat.Ann. Nothing provides in the record a satisfacto- 2725; see also 42 Pa.Cons.Stat.Ann. § ry description allegedly warranties 5525(2). Thus, if § characterized as a specifies made or even whether these war- warranty breach of complaint, appellant’s express implied. oppos- ranties action would not be barred if her cause of ing appellees’ summary judg- motion for action were deemed to have accrued in ment, appellant present failed to evidence 1976.6 warranty per- extended to future (cid:127) provides part: Section 2725 Although appellant formance. cited the (a) four-year General rule. —An action for breach statute of limitations and assert- contract must be that her for sale com- ed claim was made within four years menced within four years discovery after cause of the cause and causal Appellant contemplated by contends the district court § her action falls within allowing Pennsylvania Superi erred in not her to amend her com- the rule laid down plaint to set forth a cause of action based on or Court in Salvador v. Atlantic Steel Boiler Co. disputes (Salvador defendants’ II), Pa.Super. market share. She also 389 A.2d 1148 contention raised defendants in their motion (1978), recognized by this court in Hahn v. the failure of her Co., Atlantic Richfield F.2d 1095 parents timely to institute suit her mi- 1980), denied, cert. 450 U.S. 101 S.Ct. nority present disposition bars the action. Our (1981), personal inju 67 L.Ed.2d appeal of her on the statute of limitations issue ry by non-purchaser par causes of action third obviates consideration of those contentions. ty governed by two-year beneficiaries are personal injury statute of limitations and are court, purposes 6. Like the district for of this Thus, injury. if Salva deemed to accrue at the discussion we assume that under 13 Pa.Cons. apply, appellant’s II and claim is dor Hahn 2318, appellant party Stat.Ann. is a third § barred for the reasons discussed in Part III of beneficiary warranty par- of made to her opinion. plaintiffs If ents. she is not within the class of J., (3d 1979) (Sloviter, Cir. concur insufficient to block relationship, this was moderating quality ring). Thus summary judgment. As we grant discovery Pennsyl rule has been read into Marshall, 660 F.2d recently stated in Ness v. by judicial vania’s statute of limitations not 1981), party “a resisting judicial interpretation of compassion the motion summary judgment] cannot [for Ayers Morgan, intent. legislative See expect rely assertions, merely upon bare (1959). 379 Pa. 282 154 A.2d 788 conclusory allegations, suspicions.” See 56(e). Fed.R.Civ.P. Appellant presented no case, plaintiff, when a In this in 1976 evidence that bring would her action within college past minority under student upon statute which she relies. We law, Pennsylvania acquired knowledge both conclude, therefore, the district court possible her condition and the link be- motion appellees’ granting in not err did tween her condition and DES. Several summary judgment. inquiry months later her to her mother as possible relationship causative be- V. operative tween her condition and the con- judgment will be The of the district court duct, DES, negative ingestion of elicited a affirmed. response, inquiry made no further and she inquiry

until 1979. The same in 1979 elicit- SLOVITER, Judge, concurring. Circuit negative response. ed the exact same This time, however, plaintiff pressed further and dissenting eloquent sympathetic insisted that her mother call the obstetri- opinion colleague, Judge Higginbot- of our cian, prescription who confirmed ham, impels separately. me to write I be- DES. strong argu- lieve that one could make a argument, inquired ment that termination of lawsuits on issues At oral this court in merits, great plaintiff which are not related to the such as detail as to whether limitations, inherently, acquired knowledge by additional the statute of is un- just, which had been unknown to her in 1976. delay instituting and that in suit Although plaintiff deposi- testified at her be considered the factfinder in articles, tion that she had read additional making dep- the ultimate decision but that those articles were not identified and are plaintiff’s right recovery rivation of a record, so factfinder any issue other than the merits is too arbi- they have no basis assume that would trary a result to be countenanced under a to. qualitatively any way different system of law which seeks to achieve sub- from the Newsweek article read in justice. application stantial If of the stat- following colloquy 1976. The occurred at harsh, ute of limitations is often seen as argument: oral because, particularly tragic this case it is notes, Judge Higginbotham correctly [plaintiff] THE COURT: What did she know, compounds great personal tragedy which nineteen —what did she or could plaintiff. has befallen the she have known in ’79 that she didn’t know or couldn’t known 1976? however, legal system, Our is not Nothing, your Hon- [Plaintiff’s Counsel]: premised personal justice by on the view of Everything or. was knowable at judges, notwithstanding individual the fre- time. quency charge with which such a is leveled is, Transcript argument, p. our critics. The statute of limitations oral 8. Since suggests, plaintiff admittedly as the name a creature of the had available to her legislature, judiciary, substantially not the and it is the the same information in 1976 legislature, as the democratically elected that she had in 1979 when she initiated the people, voice of the which uniquely inquiry that led to of the causa- equipped grapple conflicting relationship with the tive between her condition and policies ingestion and considerations. See discussion her mother’s concur in Co., Magnetic analysis in Roberts v. Judge Metals 611 F.2d set forth in Aldisert’s opinion, and in the unhappy result to which higher ulation of a far requirement of dili- it leads. gence than jury what a rational might ex- pect frightened from a teenage cancer vic- HIGGINBOTHAM, Jr., A. LEON Circuit tim who learns for the first time that she Judge, dissenting. had cancer. After learning for the first If when a has been September time in 1979 that her mother granted in pharmaceutical behalf of four had taken parents Ann and her imme- companies our standard of review is to con- diately sought counsel, the advice of strue and review the light facts in the most within four complaint months the institut- pharmaceutical favorable to the companies, ing December, this action was filed in 1979. then I grant too would affirm the of sum- being dilatory Rather than majority as the mary judgment However, below. since un- finds, I would hold that as a matter of law pharmaceutical der the law the companies rational could find that Ann O’Brien special are not entitled to such a privileged diligent was and thus genuine there was a position, respectfully I dissent. issue of precluded material fact which precision With the majority has stated granting judgment. applicable precept that we must “re- view the facts in detail light I. most favorable to the plain- [the age fourteen, tiff Majority Op.', Typescript at below].” page Nevertheless, O’Brien underwent I á radical hysterectomy, believe that lymph dissection, majority misapplied partial has node very vaginec- doctrine case; in this they imposed tomy, have unwittingly followed six weeks of radiation plaintiff, cancer, on the teenage victim of therapy for treatment of a metastatic can- unrealistic, an if not an almost insurmount- cer. Unknown to Ann parents or her able knowledge, burden of inquiry and in- quite cancer conceivably was caused sight. In 1976 she did not know that her DES, prescribed the medicine for Ann mother had diethylstilbestrol (DES) taken O’Brien’s mother in 1956 when she was pregnant while plaintiff. with the Since pregnant Ann, with ostensibly prevent surgeon had stated in 1976 “they miscarriage. Prior surgery, to Ann’s Mrs. were not sure” that DES was the cause of questioned O’Brien was by Dr. John Miku- cancer, the distilled essence of this case ta, doctors, one of Ann’s about use of DES is bottomed on the majority’s supposition during her with pregnancy Ann. Mrs. that in year 1976 a nineteen girl old having O’Brien denied taken con- DES and have discovered that DES was the cause of tinued to do so until 1979 when information her cancer experienced in the face of her from her obstetrician revealed otherwise. surgeon’s uncertainty about the cause of At no time explain did Dr. Mikuta to Mrs. her cancer despite her mother’s denial questions, O’Brien the reason for his that she had even taken DES. offer suspected information about a connec- tion between Ann’s type of cancer and the

On this record the majority concludes DES which prescribed had been flaw Mrs. appellant’s case is her “[t]he O’Brien pregnant when she present failure to Ann. per- evidence sufficient to mit a to find that she could not have It was years not until five after her reasonably possessed ‘the salient facts con- surgery, that Ann learned for the first time cerning the occurrence [her] operated 1971 she had been on for who or what caused it’ before 1979.” Ma- cancer. the request parents At of her jority Op., Typescript (emphasis at 710 information was withheld from her. Short- added). ly regularly before her appoint- scheduled disagree. The “flaw” ment February is not in Ann with Dr. Mikuta in she alleged O’Brien’s diligence lack of January in as- read in a issue of maga- Newsweek certaining cancer, “what woman, who, caused” her zine Malloy, rather of a Grace while the flaw is majority’s erroneous artic- pregnant daughters, with one of her Malloy’s taken Mrs. daughter, DES. Mari- after reading additional articles lyn, painful died a slow and death from in which DES-related case histories were eighteen years described, cancer when she was old. Ann prompted again was ask App. at Realizing A—185. some similarities her mother about DES. This time she fol- between her own history medical and that up lowed on her mother’s by insisting denial article, girl of the Ann in an emotion- that Mrs. O’Brien contact her obstetrician. Mikuta, al encounter with then, Dr. demanded to Only September in were Ann she, know whether like girl the in the arti- parents and her drug informed that the cle, then, had had cancer. It was in Febru- which Mrs. during O’Brien had taken ary, that Ann learned for pregnancy first Despite was DES. this record in the. time that she had cancer. ques- When which it undisputed is that Ann and her tioned Ann parents about whether or not her did not learn until September, DES-related, cancer was Dr. DES, Mikuta re- that her majori- mother had taken sponded DES, pointed it “they ty now sustains the dismissal of her case on Deposition O’Brien, not sure.” Ann vague some theory by which it assumes that App. added). at (emphasis A-148 only permissible conclusion any reasonable could reach would be that Significantly, Ann also testified in her in 1976 and 1977 Ann had “unreasonably deposition that it was the delayed investigating” etiology of her she had any equivocal had cancer and not Op., Majority Typescript cancer. at 710. possible statements about its cause majority’s The entire theory predicated is greatest which had the impact on her. rigid their view of permissi- what is the Well, A. I went back to school and I ble rational conduct of a teenager who has my discussed it with my roommate and general read in a magazine, two-column, other they friend. And knew that I paragraph six article which is not written had read the magazine article in the by anyone purporting to be physician and we discussed that. And we dis- expert medical any type. Inherent in cancer, cussed my major that was the majority’s holding is the incredible con- point. that, clusion O’Brien, the mind of Ann Procopio also called just Doctor speculative majori- inferences which the why asked I wasn’t told I had cancer ty makes from a Newsweek article on DES and was I going right. to be all And it outweighed should have the definitive deni- cancer, cancer, it was it was not als of Ann’s mother about having taken DES, just that was tremendously up- DES. I believe that highly possible setting. I cannot you verbalize to how that a could find that the authoritative upset I was. voice of dispelled Ann’s mother any suspi- Q. you your Did friend at college cions or inferences which a Newsweek arti- and roommate talk about DES at all? cle, by strangers, might written have raised. No, A. no. The majority, denying such possibility, Id., App. added). transgresses (emphasis principles A-149 application “discovery summary rule” and judg- Several months later an upsetting ment. encounter with her why mother over parents had never told her that she had had II.

cancer, questioned her mother about DES. Mrs. O’Brien having denied Though taken majority accurately sets out Thus, in DES. 1976 Ann had the Pennsylvania definitive respect law with statement of her mother “discovery that she had not rule’s” modification of the stat- taken equivocal comments of Dr. personal suit, ute of limitations in a Mikuta etiology cancer, on the they of her and a misapply the granting standards for single magazine describing article the death judgment under Rule 56 of the girl of a whose mother had taken Federal DES. Rules of Civil Procedure. Rule 56(c) provides part that summary judg those facts bore some causative rela- ment “shall be rendered forthwith if the tionship to the injury.” Bayless See also pleadings, depositions, interrog answers to Philadelphia League Club, National atories, file, together and admissions on F.2d 1978) (quoting the lan- affidavits, guage any, Gemignani with the if show that approval). there genuine majority is no issue as also material fact discusses the more refined moving party and that the is articulation of this developed by entitled to a standard Judge judgment Volpe Takiff v. (emphasis as a matter of law.” Johns-Manville added). Corporation, 4 function, (Phila.C.P.1980) P.C.R. 290 deciding The court’s quoted which was approval grant whether a the recent merited, Pennsylvania Superior Court case Judge Aldisert wrote in Lock Anthony Koppers, Inc., Pa.Super. 81, 284 Hoenstine, (3d hart v. 411 F.2d 455 Cir. (1980), 425 A.2d 428 grounds, rev’d on other 1969), denied, 941, cert. 396 90 U.S. S.Ct. 119, 496 (1981); Pa. 436 A.2d 181 see 378, Ma- (1969), 24 L.Ed.2d 244 is to decide jority Op., at 706 n.2. phases Three whether factual issues exist and not to de knowledge recognized are now Pennsyl- cide issues of fact. necessary vania as trigger the statute of quarter Over a century ago, of a plaintiff limitations: (1) must have court, speaking through Judge Maris in injury; (2) knowledge of Toebelman Pipe v. Missouri-Kansas Line operative cause of the injury; (3) Co., 1016, (3 1942) (sic), 130 F.2d 1018 Cir. knowledge of the causative relationship be- principles established certain governing injury tween the operative and the conduct. summary judgment practice: 295; Volpe, 4 P.C.R. at Anthony, 425 A.2d “Upon a motion for a judg- at 436. part ment it is no of the court’s func- The district correctly court points out tion to decide issues of fact but solely what this circuit and the Pennsylvania Su to determine whether there is an issue preme Court have already ques stated: of fact to be tried. All doubts as to the tion of when a knows or reason genuine existence of a issue as to a ably should know the cause of his or her material against fact must be resolved injury question is a jury of fact for the party moving for a summary judg- decide. Lilly O’Brien v. Eli Company, ment.” 78-1585, slip op. (E.D.Pa. 31, No. at 4 Dec. terms, Stated in different one who moves 1980); 41; Bayless, accord 579 F.2d at Wet a summary judgment bears the bur- zel Douglas v. McDonnell Corp., F.Supp. 491 den of demonstrating that there is no (E.D.Pa.1980); 1288 Hoeflich v. William S. genuine issue of material fact. Fair- Company, Merrell F.Supp. (E.D.Pa. 288 659 banks Morse & Co. v. Consolidated Fish- 1968); Telephone Smith v. Bell Company of Co., 817, eries (3 1951) 190 F.2d 824 Cir. Pennsylvania, 134, 397 Pa. 153 A.2d 477 (sic). (1959). may A court question remove this added) 411 F.2d at (emphasis (footnote 458 from and decide it as a matter of omitted). Accord, Hanna v. United States law in summary disposition' only if the Veterans’ Hospital, Administration 514 F.2d evidence reasonable inference there (3d 1975); O’Neill, 1092 Cir. Sanford v. 616 from, interpreted in a light most favorable (3d 1980). F.2d 92 Cir. non-moving party, indicates that no majority, As noted Gemignani v. disputed factual issue exists as to when the Philadelphia League Phillies National Base- plaintiff discovered or reasonably should Club, Inc., ball F.Supp. (E.D. have discovered information critical to her Pa.1967) states that the Pennsylvania per- Diebold, Inc., claim. United States v. injury sonal begins statute of limitations (1962); U.S. 82 S.Ct. 8 L.Ed.2d 176 run plaintiff, “from the time the through Sanford, 96; 616 F.2d at Goodman v. Mead diligence, Co., exercise of reasonable Johnson & 534 F.2d at 1976), denied, learned both the facts in cert. 429 U.S. 97 S.Ct. Wetzel, (1977); 50 L.Ed.2d 748 491 item in the record other than Dr. Mikuta’s F.Supp. equivocal at 1293. majority statement which the justify seeks to the conclusion that in 1976 Only companies if the defendant could Ann should have discovered that the cause genu- was no have demonstrated that there taking of her cancer was her mother DES. through when ine factual issue as to diligence exercise of due Ann should have The entire article reads as follows: probable was the cause discovered Malloy, childbearing For Grace did not her of her and that mother taken easily. Although come daughter first judge should the have taken the mat- complications, was born in 1946 without away granted ter from the sum- subsequent pregnancy ended in miscar- mary judgment. Is such conclusive show- riage. When her next pregnancy ing possible the defendants in this case? signs miscarrying, she also showed accurately Can be said that as matter of (DES), prescribed diethylstilbestrol doctor law no reasonable could conclude that synthetic estrogen a widely used in such sufficiently these under facts cases at the time. A daughter, second ascertaining diligent in 1976 and 1977 Patti, yet was delivered in 1951. After that her mother had taken even miscarriage, Malloy another Mrs. became though positively her mother had asserted pregnant again a giv- fifth time and was not taken she had DES? daughter, Marilyn, en DES. Another was born in 1956. III. It Marilyn was not until Patti and were Writing panel for a which included Chief Malloy and 14 that Grace read a news- Judge Aldisert, Judge Judge Seitz and paper report linking to a rare but Stern said: deadly vaginal young form of cancer in If common sense and reason dictate that women whose mothers had taken the hor- period the limitation is not to run at least Alarmed, during pregnancy. mone Mrs. until a knows that he has been Malloy any- asked her doctor if there was hurt, Ayers Morgan, supra, see v. 397 Pa. thing your to this “scare.” “You bet life 284-285, 154 at A.2d at then it should is,” there replied. get he “You’d better reasonably not run until he can determine girls those right in for an examination what Ordinarily, or who hurt him. away.” The result was bad news: Mari- simultaneously, two events will occur but lyn vaginal cancer. always need not be so. There are Malignancy: operation lasting In an injury, cases where one knows of an hours, Marilyn’s vagina more than twelve may not its cause. This be such a case. removed; nearby lymph glands were Bayless Philadelphia League National vagina using an artificial was constructed Club, added). 579 F.2d (emphasis at 41 grafts skin legs. from her The doctors hopeful they had excised the If common sense and reason are the crite- malignancy, year they entire but a later majority’s holding ria which the must be spread discovered that the cancer had tested, majority’s what is the common sense lung, esophagus lining one and the and reasoned view toas how a nineteen the heart. Following operation, another year girl respond old when she first Marilyn sufficiently recovered to resume years learns that five before she had been passion riding. her operated vaginal on for cancer? What is a —horseback teenage required victim of cancer to do A Marilyn’s short time later condition her, surgeon operated when the who appetite, a worsened. lost her suffered She distinguished university pro- medical school from nausea and severe headaches. Tests fessor, specialized gynecology who revealed that cancer her had reached oncology, pituitary gland, Marilyn advised her that he was “not underwent sure” of the grueling regimen cause of her cancer? A six six-week of “whole paragraph article in the only Newsweek is head” radiation. When all her hair fell result, give in still refused to

out as she and one must ask what it was that Ann an active social self-pity kept up done, why should have she should have life, wearing bright scarf over her head. expected been to do more than she did. Malloy could hear her night But at Mrs. Malloy Newsweek case about Grace the cancer daughter moaning pain with significantly different than Ann’s case. continuing spread its lethal that was First, Malloy Mrs. knew that she had taken arms, through legs, spine her and brain. When Ann read that article DES. she did and confined to a she was blind Soon not know and her mother did not know that May Marilyn wheelchair. died on Second, Mrs. taken O’Brien had DES. high school two weeks before pathology causing Marilyn Malloy’s total graduation. class’s death was far worse than that of Ann’s. sitting elegant, in her Today, Guilt: nausea, Marilyn had suffered from severe Jolla, Calif., room, living sun-filled La headaches, pituitary the cancer reached the Malloy Marilyn’s story tells Grace glands, she had had six weeks of “whole pathos. does not savor self-control. She radiation, head” all of her hair had fallen any personal guilt does feel over Nor she out, night moaning pain, she was tragic “I had no daughter’s death. arms, spread legs, spine cancer had to her way knowing pills what those would ultimately and brain and she was blind and do,” says. she “Thousands of women Certainly confined to a wheelchair. them, took but we all did it in the best of could conclude someone untrained in faith, prescribed because our doctors expertise medicine and with no in the etiol- them.” ogy of cancer would have put not been Nonetheless, Malloy Grace is not with- condition, that her (though tragic notice but happened what out bitterness about to nearly Marilyn Malloy’s), not as bad as was family may her what still lie ahead. —and analogous Marilyn Malloy’s so that it was Patti, 25, daughter, Her now has older by taking caused her mother DES. diagnosed having vaginal adeno- been as always “go Patients have been told to sis, appears benign that but lesion could advice, your majority doctor” for precursor spite be the of cancer. standard, reservations, imposed has now a different longstanding Patti recently married, get “disregard your which is mother and decided to and her doctors disre- prospects healthy gard your go claim her for a future doctor but to Newsweek” to good. guarantee; are But there is no etiology your learn the condition. After being, only the time Patti can wait —like reading the Newsweek article Ann went to young thousands of other women with physician him her and asked whether her history pray same that the kill- pressed condition was DES-related. She —and may pass er that claimed her sister her him to learn whether she in fact had had by. cancer the first time and learned for that DES,” operated vagi- she had been on in 1971 for “Daughters Newsweek, January 26, 1976, physician nal cancer and that her reprinted at and her App. at A-185. parents had withheld this information from The majority judg- and the lower court’s her. She then asked Dr. Mikuta the critical predicated assumption ment is on the that question, was her cancer caused DES? upon reading paragraphs those six analysis The trial court found from its obligated was to discover the fact equivocal Dr. Mikuta’s that “Dr. statement that her mother had taken and that Mikuta that he unsure of also stated was reading Ann’s conduct after the article was plaintiff’s” App. the cause of the cancer. so unreasonable that no rational could added). (emphasis A-93 Ann then went to sufficiently diligent. find that she was Be- her and asked her whether she had mother analyzing fore majority what would done, responded, ever taken Her mother require Ann DES. to have the differences in just persons up her case and that of the as she continued to until described noted, in the Newsweek article taken should be she had not DES.

Under these facts what more should have etiology now be able to ascertain its even expected teenager who been from oncologists when are “unsure” of the cause? just learned that she had had cancer? For If we should ignorant judges “not be as majority some unfathomable reason the women, of what we know” as men and concludes that it was unreasonable for Ann what was the trial court’s view of the nor- not found out in 1976 relationship mal between mother mother had taken DES. daughter? Presumably daugh- mothers and antagonism ters do not have the inherent IV. suspicion superpowers which world ago speak- More than three decades when might negotiating have when bargain- at a context, ing in a somewhat different Mr. ing table on disarmament. Wasn’t it rea- Justice Frankfurter that there stressed daughter sonable for a to believe that her body; torture of mind as well as the will spoke mother the truth when she said in is as much affected fear as force. she had never taken DES? We point And there comes a where this Court know that on this record a could con- ignorant judges be as of what clude that in 1977 and 1978 the moth- we know as men. sincerely er believed that she had never majority taken Yet the suggests DES. Indiana, Watts v. State U.S. a Newsweek article should have caused Ann (1949). Certainly any teenager who learns probably to disbelieve her mother and cancer, for the first time that she had had surgeon; that such disbelief was only sustains a torture of the mind. To fail to case; option rational on the facts of this comprehend ignorant that torture is to “be thereafter Ann should have on her own judges as of what we know as men [or investigation embarked on an to ascertain persons].” etiology of her cancer. Cancer is the leading second cause of death in the Why United American teenager States. See is it that a should have Society, Cancer pursued pharmacological “Cancer Facts and such a inquiry?— Figures,” p. 7. It is according estimated that in majority solely it is be- 420,000 Americans will by die of cancer and cause chance 6-paragraph she had read a 815,000 there will be new cancer cases in article in Newsweek. Thus one must ask persons 1981 for residing in the standing, any, United what if does Newsweek have States. Id. at 8. The cancer will range in as an authoritative standard reference cavity pharynx work, sites from the buccal and scientific, to a learned treatise or a digestive organs, respiratory system, pharmacological journal? or medical It cer- bone, skin, breasts, tissue genital and tainly or- does not fit within the definition gans, urinary organs, eye, brain and central under Federal Rules of Evidence of a system, glands, nervous 803(18). endocrine blood learned treatise. See Fed.R.Evid. (leukemia) lymph and other tissues. Id. at The Newsweek article was not written 8. The many, sites of cancer are many anyone purporting physician, and to be a nurse scientist, of the causes of enigma cancer are still an jury certainly or and a could find to even the distinguished oncologists. most journal it is not an authoritative Every layman knows that the riddle of can- medicine or a treatise learned within the cer has not meaning 803(18). been solved and that its causes of Rule There is a cruel Yet, are uncertain. majority irony majority’s ruling. seems to The very suggest that a year nineteen old who they rely learns Newsweek article which on as that she has suffered this compelling teenager dreaded disease a to conduct an investi- must now be to etiology gation able ascertain its evi- would never be admitted into even surgeon, professor when her a attempting prove of ob- dence if one were stetrics and gynecology, is unsure of its causes cancer. It have the DES would not majority suggesting cause. Is the pa- inherent trustworthiness of a standard ref- tients who suffer this dreaded disease must erence work or a learned treatise. Yet to

719 approve in med have been reluctant person of a untrained the detriment law, today majority judgment Granting summary rules that dismissal. icine or be inad in judgments gross an article which would otherwise close cases can cause injustices on the causation issue should be a perhaps uncontemplat- missible adds weight credibility which even given ed dimension to Justice Holmes’ remark recogn Rules of Evidence do not the Federal that “hard cases make bad law.” Northern interesting is an States, ize.1 While Newsweek Company . v. Securities United 193 weekly journal, standing it has no more in 197, 400, 436, 468, 48 679 U.S. S.Ct. L.Ed. oncology medicine or than a fortuneteller’s J., (1904) (Holmes, dissenting). authority It forecast. should have no more page

in the field of medicine than a one V. flyer randomly in the street distributed has circuit, see, e.g., Bayless, In our own energy nuclear or in the fields of astrono 37; 566; Goodman, Hanna, F.2d 534 F.2d my. 1091; Wetzel, F.Supp. 514 F.2d Hoeflich, F.Supp. and in other recognized conflicting trial court

The circuits has been denied possible. inferences were But it then ex- analogous The circumstances. Second proper ceeded the bounds of the court’s Appeals, citing Circuit Court of numerous deciding summary judgment when function circuits, deciding which cases from its own and other held of those inferences was Seidman, apply. A reasonable could have Robertson Seidman & that, 1979) insisting in 1979 that her F.2d 583 that a shareholder of concluded recollection, corporation mother double-check her a defunct could not be barred efforts; that, fact, extraordinary the statute of bringing made limitations from against accounting that her mother had taken an action an she discovered firm for only through alleged the exercise of due dili- securities when conflict violations majority’s gence. ing The conclusion effective- inferences could be drawn from the her, ly penalizes at least in terms of her facts.2 trial,

right to a for the efforts she made in involving analogous, other cases 1979. compelling far less than circumstances Ann’s, Fourth, majority The concedes “that this is a Ninth and Tenth Circuits By very recog- summary judgment. denied close case.” fact that have also Appeals nizes the closeness of the issues it Fourth Circuit Court of held that diligently parties 1. I have searched to find case in es which the seek to have drawn [as history jurisprudence motive, intent, questions subjec- of American which to] ” recognized general newspaper ever feelings has magazine tive and reactions.’ 482 F.2d at treatise, learned notes, Wigmore found none. As Professor exception permits which the admission of a diligence Issues of due and constructive usually spoken learned treatise “... is of as knowledge depend on inferences drawn from involving the use of or ‘scientific books’ ‘medi particular the facts of each case—similar to ” or cal books’ ‘books of science and art.’ 6 type of inferences that must be drawn in deter- Wigmore (1976). on Evidence at 2 § mining good intent and faith. . . . When con- anyone weekly magazine Would call a news a facts, flicting inferences can be drawn from the of book science and art? summary judgment inappropriate.... is .... case, only possible question In the instant it not is 2. The critical in the instant case is draw, draw, know, parties actually appellant indeed do conflict- when did or in the known, ing diligence inferences from the various factors relied exercise of due should have the fraudulent activities of Seidman & Seid- on the district court. Granted that dis- Meyers, As we held in v. man. trict court’s conclusion that should [Friedman (2d 1973)], F.2d 435 Cir. . . the fraudulent activities of have discovered July plau- mind, Seidman before 1975 is Seidman & sible, are raised as to the state of “[I]ssues contrary may knowledge parties. a conclusion also be intent and We repeatedly summary judg- stated that reached. where, particularly inappropriate (citations omitted). ment is here, as Id. at 591 sought it is on the basis of ‘the inferenc- summary judgment a summary-judgment on statute of limita documents at the stage precluded Hopkins tions was in Johns Uni genuine when there can abe difference of Hutton, (4th versity v. 422 F.2d 1124 Cir. opinion impact as to their on a reasonable denied, 1970), cert. 416 U.S. 94 S.Ct. person.” Id. at 1368. (1974) (an 40 L.Ed.2d 118 action to Different pre- “ultimate inferences” also purchase gas pro rescind the of an oil and summary judgment cluded based on limita- payment), question duction because the States, tions in Exnicious United 563 F.2d when the could have discovered (10th 1977), involving Cir. a case a diligence with reasonable the defend malpractice medical claim under the Feder- misrepresented earnings ants had future al Tort Claims Act. The trial court in Exni- presented genuine issue of material fact.3 finding cious was held in error because Similarly the Ninth Circuit has held that plaintiff’s post-surgical diagnosis “reasonably prudent person” when a should gave of traumatic arthritis the plaintiff ac- have made certain discoveries should not be knowledge tual inju- or reason to know his decided as a matter of law summary cause, ry, its relationship and the causative disposition. Just as the trial court in this two, rejected between the “the court other impact case decided that the on Ms. O’Brien disput- reasonable inferences and decided a of articles about cancer DES-related which 424, citing ed fact issue.” Id. at Hanna v. she read in 1979 was no different than that United States Veterans’ Administration article, of the 1976 Newsweek the trial Hospital, 1975). 514 F.2d Cir. Ernst, court in Briskin v. Ernst & 589 F.2d I do not believe that there present were (9th 1978) concluded that certain any just discussed, of the cases any or in triggered documents should have “dis- circuit, those cited from our own conflict covery” by plaintiffs case, in that de- ing inferences plausible more than spite plaintiffs’ denial that the documents those now before No doubt the district us. reversing such an effect. the dis- court’s conclusion that the statute of limita grant trict court’s judgment began Ann, tions to run in 1976 because limitations, based on appeals court of diligence, with due reasonably could have Briskin stated that requiring issues conclu- discovered in 1976 what she discovered in sions about the actions and of a 1979, plausible. is just But because it is as reasonably prudent person particular cir- plausible otherwise, for a to conclude cumstances “calls for a review of the docu- the district question by summary disposition, ments in court’s light trier of fact in in of all the judge volving evidence. A trial as it did disputed resolution of fac assign legal inferences, conclusive effect to such tual inappropriate.4 ty’s hypothesis repudiates 3. On we must view the the tenets of basic pertaining diligence pedagogy. inferences requires repetition to ... Often it light party opposing most favorable to .. . the startling significance new or ideas before their contrary the motion. Since inferences fully appreciated. to those Ann testified that from judge might permissi- drawn the district be “any 1976 to 1979 she was not aware of ble, genuine issue of fact was raised that group daughters group or DES action in Wash- jury. should have been submitted to the ington” attending college. where she was She testified that she did not become aware of them when, say August September, It is sufficient for us to until when “there here, quite has been demanded and the facts seemed to be a few articles on DES in the give conflicting rise to magazines. just inferences on the issue quite Post and And I had read diligence, of reasonable must be just things and read and it seemed like jury. submitted to the really showing up publications. And I was (citations omitted). Id. at 1131 reading App. more about it.” at 153. Certain- ly jury could conclude that she should not my Judge concurring 4. From view Sloviter’s required inquiry have been to make further opinion misconstrues the issue. Of course to whether her mother had taken DES until day from the when Mrs. O’Brien first took a August September 1979 when she read addi- pill, “it was knowable” that it was DES. The publications corroborating tional the inferences issue here is what is it that Ann O’Brien should of the Newsweek article. expected majori- have been to do in 1976. The judgment suggest I do not limitations Ralph PAOLINO, Appellant, a statute of the basis of J. always “discovery rule”

triggered that when it merely assert inappropriate. CHANNEL HOME CENTERS Air genuine that no clearly established is not Industries, Control Inc. exists, as in this issue of material fact ease,” summary judgment should be “close No. 81-1661. Moore’s, 56.17[58], ¶ Vol. denied. Appeals, United States Court 1980). 1062-63. ed. Third Circuit. Argued Nov. 1981.

CONCLUSION Decided Dec. 1981. more than Having judge been a trial for keenly I am aware of the years, thirteen As Amended Jan. 11 and Feb. 1982. pressure judges which trial inordinate Rehearing Rehearing In Banc heavy trying dispose to of their caseloads Denied Jan. 1982. fairly. summary judg But efficiently and intended to decrease ba ments were never litigants for in order to increase

sic fairness pace disposition

a court’s of cases.5 already has my

From view Ann O’Brien cancer; tragedy plight

suffered the compounded not have been de

should opportunity present

priving her of the jury. case I dissent because material genuine disputed

there is a was suffi

issue of fact as to whether she

ciently diligent ascertaining etiology case, of this

of her cancer. Under the facts

a rational could find that there was no diligence teenager accepted when a

lack of her mother and

as true the statements of

surgeon.6 exemplifies majority upon to de- 5. I believe that this case a disturb- has taken it itself ing tendency judges impact a few in this circuit to cide that of the 1976 Newsweek freely grant too in “close person article on a reasonable had to have been complex product liability involving mat- cases” impact

the same as the cumulative in 1979 of ters. reading additional articles on DES. Whether in 1979 one article in 1976 or several articles juryA find that Dr. Mikuta s statement could provided trigger sufficient sure was true w^en sa^ that he was not duty diligence disputed question of due is a cancer, it was of her cause not be decided as a matter aspect of his her to believe that reasonable for » summary disposition. of law considering his other com- statement without ment on DES.

Case Details

Case Name: O'brien, Ann C. v. Eli Lilly & Company E. R. Squibb & Sons, Inc. The Upjohn Company, and Winthrop Company, Inc

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 21, 1982

Citation: 668 F.2d 704

Docket Number: 81-1291

Court Abbreviation: 3rd Cir.