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O'Brien v. Lilly

decided as amended january 5 1982.: December 28, 1981.



Before Aldisert, Higginbotham and Sloviter, Circuit Judges.

Author: Aldisert


The question for decision in this appeal from a summary judgment in favor of four defendant pharmaceutical manufacturers in a diversity action is whether the district court properly applied the Pennsylvania "discovery rule," which modifies the personal injury statute of limitations. The district court determined that, if she had exercised due diligence, appellant Ann O'Brien reasonably could have discovered in February 1976 that her mother had taken Diethylstilbestrol (commonly known as Stilbestrol or DES) during her 1956 pregnancy and that the drug arguably caused appellant's subsequent cancer. She did not file her complaint until December 31, 1979; accordingly, the district court concluded that the suit was barred by the two-year statute of limitations. Appellant contends that whether she possessed the knowledge necessary in 1976 to start the running of the statute was a jury question. Conceding that this is a close case, we nevertheless find no genuine issue of material fact and affirm the grant of summary judgment.


The relevant Pennsylvania statute of limitations for personal injury actions states:

The following actions and proceedings must be commenced within two years:


(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

42 Pa.Cons.Stat.Ann. ยง 5524(2). The district court applied this statute in granting appellees' motion for summary judgment. Appellant's warranty claims implicate a four-year statute and are discussed below in Part IV of this opinion.

Statutes of limitation express the legislatures' public policy judgments of how long a plaintiff may delay suit without being unfair to a defendant. Overfield v. Pennroad Corp., 42 F. Supp. 586, 614 (E.D.Pa.1941), aff'd, 146 F.2d 889 (3d Cir. 1944). "These and similar legislative enactments are expressive of the feeling of mankind that where there are wrongs to be redressed, they should be redressed without unreasonable delay, and where there are rights to be enforced, they should be enforced without unreasonable delay." Ulakovic v. Metropolitan Life Ins. Co., 339 Pa. 571, 576, 16 A.2d 41, 43 (1940).*fn1

Nevertheless, Pennsylvania courts have recognized the potential harshness inherent in a rigid application of the statute and long ago carved out an exception: ignorance of an injury may delay the running of the statute of limitations. Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895). The judicially created "discovery rule" announced in Lewey has been expanded to except the plaintiff who is aware of his injury but not its cause. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). Federal courts in this circuit have helped to refine the precept. Our district courts have noted that the rule delays the accrual of a cause of action from the time of a defendant's tortious conduct to a time when the injury and its cause become known or knowable, Gemignani v. Philadelphia Phillies Nat'l League Baseball Club, 287 F. Supp. 465, 467 (E.D.Pa.1967), that it is a rule intended to benefit plaintiffs in that it avoids potential injustice caused where an injury is "inherently unknowable" at the time of a defendant's conduct, Landis v. Delp, 327 F. Supp. 766, 768 (E.D.Pa.1971); Prince v. Trustees of the Univ. of Pennsylvania, 282 F. Supp. 832, 840 (E.D.Pa.1968); Daniels v. Beryllium Corp., 227 F. Supp. 591, 595 (E.D.Pa.1964), and that the legislatively declared desirability for repose and judicial administrative expediency will not be unduly affected by the small number of "inherently unknowable" injuries, Prince v. Trustees, 282 F. Supp. at 840. Moreover, this court, in Bayless v. Philadelphia Nat'l League Club, 579 F.2d 37 (3d Cir. 1978), and DaMato v. Turner & Newall, Ltd., 651 F.2d 908 (3d Cir. 1981) (per curiam), adopted the reasoning and the precept announced by our colleague A. Leon Higginbotham, Jr. (then a district judge) in Gemignani: in a personal injury action under Pennsylvania law, the period of limitations begins to run "from the time the plaintiff, through the exercise of reasonable diligence, should have learned both the facts in question and that those facts bore some causative relationship to the injury."*fn2 Gemignani, 287 F. Supp. at 467; see Bayless, 579 F.2d at 40. In further refining the test, Pennsylvania courts have developed a precise analysis defining the elements of the discovery rule. Coyne v. Porter-Hayden Co., 286 Pa.Super. 1, 428 A.2d 208, 209-10 (1981); Anthony v. Koppers Co., 284 Pa.Super. 81, 425 A.2d 428, 436 (1980), rev'd, other grounds, 496 Pa. 119, 436 A.2d 181 (1981); Volpe v. Johns-Manville Corp., 4 P.C.R. 290, 295 (C.P.Phila. County 1980). We will discuss this analysis in detail in Part III of this opinion.

We use the discovery rule to measure the facts adduced in the summary judgment proceedings below. We are not presented with a question of choice or interpretation of the precept; rather the dispute is over the application of the precept to the facts presented to the district court. We will review the facts in detail and in the light most favorable to the appellant, essentially as set forth in her brief.


In July 1956, Mary Ann O'Brien, appellant's mother, consulted Dr. Kenneth L. Cooper, a gynecologist and obstetrician, concerning her pregnancy with appellant Ann O'Brien, who was born on February 18, 1957. Because Mrs. O'Brien's previous pregnancy had terminated in a miscarriage, Dr. Cooper on July 26, 1956, prescribed 25 milligrams of Stilbestrol. In her deposition Mrs. O'Brien recalled that Dr. Cooper had prescribed some medication during this pregnancy, but she did not know the specific kind. She did recall taking a "red pill" or "white pill" during her pregnancy with appellant. App. at 102-03. Mrs. O'Brien testified: "I took whatever he prescribed and never questioned ... it, I simply took it, if he prescribed it, I took it." Id. at 102.

During the summer of 1971, when she was fourteen years old, appellant experienced unusual vaginal bleeding. In September of that year, upon examination by a gynecologist, Dr. Carl Dorko, and following a recommendation by her pediatrician, Dr. Frank Procopio, she was admitted to the Harrisburg Hospital for diagnosis. Dr. Dorko discovered a tumor and performed a biopsy. In addition to the pathology report prepared by the Harrisburg Hospital pathologist, the biopsy slides were sent for evaluation to Dr. Robert Scully, a pathologist at Massachusetts General Hospital.

Dr. Scully responded that the tumor "fits into the category of clear cell carcinoma occurring in young women that we have found to be frequently associated with maternal Stilbestrol administration." App. at 178. Dr. Dorko informed Mr. and Mrs. O'Brien of the biopsy results and referred their daughter for treatment to Dr. John Mikuta, a gynecologist and oncologist at the Hospital of the University of Pennsylvania. There, in October 1971, appellant underwent a radical hysterectomy, lymph node dissection, and partial vaginectomy. She received radiation therapy for six weeks.

Appellant's parents requested that she not be told that her tumor was malignant. All doctors participating in her diagnosis and treatment cooperated with that wish and her parents did not themselves tell her of the malignancy.

Shortly before appellant's surgery, in the fall of 1971, her mother met with Dr. Mikuta. During this meeting, Dr. Mikuta asked Mrs. O'Brien whether she had ever taken diethylstilbestrol to prevent a miscarriage. Mrs. O'Brien denied taking the medication. App. at 114, 122-23.

In 1971, Dr. Scully and Dr. Arthur Herbst of Massachusetts General Hospital reported in the medical literature an association between maternal ingestion of diethylstilbestrol during pregnancy and clear cell adenocarcinoma in the female offspring of that pregnancy. As a means of centralizing data obtained from such cases, Drs. Herbst and Scully established a Registry for Adenocarcinoma of the Genital Tract in Young Women. Dr. Mikuta was familiar with the work of Drs. Herbst and Scully. He discussed appellant's case with Dr. Herbst as well as with Drs. Cooper and Dorko in late 1971 and early 1972.

In October 1971, Dr. Herbst wrote to Dr. Dorko, enclosing two questionnaire forms pertaining to appellant, her treatment, medical history, and family history. Following a telephone conversation with Mrs. O'Brien in January 1972, Dr. Dorko sent her one of the forms asking her to "fill out as much of it as you can." App. at 186-87. The form included the question, "Did mother take hormones during pregnancy?" Mrs. O'Brien has stated, in an affidavit, that the answer "No" on the form is in her handwriting and was placed there in late January 1972. App. at 186. The form also asked for "Other medications taken during pregnancy (name, dosage, and when taken)." Diethylstilbestrol is not among the medicines Mrs. O'Brien listed in response.

Shortly before her regular appointment with Dr. Mikuta in February 1976, appellant read an article in a January 1976 issue of Newsweek.*fn3 At this time she knew that her mother had suffered a miscarriage before appellant was born. App. at 157. She also knew that Dr. Cooper was her mother's obstetrician. Id. at 156.

In her deposition, Ann recollected the article and her subsequent discussion with Dr. Mikuta:

A. Well, the article talked about a girl whose mother had taken DES and the girl had cancer. And the article talked about the procedure, the surgical procedure ... that she had gone through. And what happened to her after that and she died.

And everything about the procedure that she had gone through-or almost everything-was what I had gone through. And it was all too close, the cancer, and this was my concern, not DES at that point. And I was quite upset with Doctor Mikuta, I was very adamant that I wanted an answer from him whether I had cancer or not. And he said that I did.

Q. Did you ask him whether it was in any way DES related?

A. Yes. And he said that it pointed to that but they were not sure.

Q. It pointed to DES but they were not sure?

A. Not sure. And we continued to talk about cancer.

Q. Did he tell you why it pointed to DES?

A. No.

Q. Did he tell you why they were not sure?

A. No.

Q. Did Doctor Mikuta indicate to you why he responded that the cancer pointed to DES?

A. Because of the type of cancer that it is or was.

Q. Did he say that to you?

A. Yes.

Q. Did he ever say to you that it pointed to DES because your mother had taken it?

A. I don't think so.

App. at 147-48, ...

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