Burgess v. Eli Lilly & Co.

[This opinion has been published in Ohio Official Reports at 

66 Ohio St.3d 59

]




                    BURGESS ET AL. v. ELI LILLY AND COMPANY
                [Cite as Burgess v. Eli Lilly & Co., 

1993-Ohio-193

.]
Statutes of limitations—Provision of R.C. 2305.10 regarding accrual date of cause
        of action for DES-related injuries is unconstitutional—Cause of action
        based upon DES exposure accrues, when.
1. The provision of R.C. 2305.10 regarding the accrual date of a cause of action
        for DES-related injuries is unconstitutional.
2. A cause of action based upon DES exposure accrues only when the plaintiff has
        been informed by competent medical authority that she has been injured by
        DES, or upon the date on which, by the exercise of reasonable diligence,
        she should have known that she has been so injured.
       (No. 92-480—Submitted January 12, 1993—Decided April 7, 1993.)
     ON ORDER from the United States Court of Appeals for the Sixth Circuit,
               Certifying Three Questions of State Law, No. 91-3718.
                                  __________________
        {¶ 1} The plaintiffs in this case are a mother, Lillian Baker, and her two
daughters, Sanda Burgess and Deborah Sauer, who each allegedly suffered
numerous injuries as a direct result of Baker's having taken Diethylstilbestrol
("DES") while pregnant with Burgess in 1948 and with Sauer in 1951-1952. In the
ensuing years, Baker experienced vaginal cysts, a uterine polyp and a breast tumor.
Neither Burgess nor Sauer ever developed mature reproductive systems.
        {¶ 2} The plaintiffs filed actions for damages against Eli Lilly & Company,
a manufacturer of DES, on May 30, 1986. On July 9, 1991, the district court
adopted a magistrate's recommendation that the action be dismissed. The court
specifically found that the claims were barred by the applicable Ohio statute of
limitations, R.C. 2305.10, which provides, in relevant part:
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       "An action for bodily injury or injuring personal property shall be brought
within two years after the cause thereof arose.
       "* * *
       "For purposes of this section, a cause of action for bodily injury which may
be caused by exposure to diethylstilbestrol or other nonsteroidal synthetic
estrogens, including exposure before birth, arises upon the date on which the
plaintiff learns from a licensed physician that he has an injury which may be related
to such exposure, or upon the date on which by the exercise of reasonable diligence
he should have become aware that he has an injury which may be related to such
exposure, whichever date occurs first."
       {¶ 3} The district court concluded that each plaintiff was aware prior to May
30, 1984, two years before filing, that she may have been injured due to DES
exposure. The plaintiffs appealed that decision to the Sixth Circuit Court of
Appeals. The Sixth Circuit, concerned that the statute of limitations applied to the
plaintiffs may violate the Ohio Constitution, has turned to this court for guidance
regarding the correct interpretation of R.C. 2305.10. The Sixth Circuit, pursuant to
S. Ct. Prac. R. XVI, certified the following questions to us:
       "(1)      Is Ohio Rev. Code {2305.10, as construed by the trial court,
unconstitutional against plaintiffs-appellants since the plaintiffs could not prevail
in an action against the defendant with expert medical proof that the plaintiffs'
respective bodily injuries or conditions 'may be related to * * * exposure' to
'Diethylstilbestrol or other nonsteroidal synthetic estrogens, including exposure
before birth'?
       "(2) What is the proper statutory construction of Ohio Rev. Code {2305.10
with respect to the accrual of a cause of action for an injury caused by
Diethylstilbestrol('DES')?




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          "(3) Does the proper statutory construction of Ohio Rev. Code { 2305.10
with respect to the DES provision violate either the due process or right-to-remedy
provisions of the Ohio Constitution?"
                               __________________
          Gianuglou, Dankof, Caras & Hruska, Sam G. Caras and Michael R.
Pentecost, for petitioners.
          Shook, Hardy & Bacon, Andrew B. See and Mark C. Hegarty; Porter,
Wright, Morris & Arthur and Thomas Hays Pyper, for respondent.
                               __________________
          PFEIFER, J.
          {¶ 4} We answer the three questions together by responding that the
provision of R.C. 2305.10 regarding the accrual date of a cause of action for DES-
related injuries is unconstitutional. A cause of action based upon DES exposure
accrues only when the plaintiff has been informed by competent medical authority
that she has been injured by DES, or upon the date on which, by the exercise of
reasonable diligence, she should have known that she has been so injured.
                                          I
                                          A
          {¶ 5} In a line of cases including Mominee v. Scherbarth (1986), 

28 Ohio St. 3d 270

, 28 OBR 346, 

503 N.E. 2d 717

, Hardy v. VerMeulen (1987), 

32 Ohio St. 3d 45

, 

512 N.E. 2d 626

, and Gaines v. Preterm-Cleveland, Inc. (1987), 

33 Ohio St. 3d 54

, 

514 N.E. 2d 709

, this court established a threshold point at which
government may impose a statute of limitations on a potential claimant. That line
of decisions established that a statute of limitations could not begin to run before a
claimant knew or should have known of her injury. In Allenius v. Thomas (1989),

42 Ohio St. 3d 131

, 

538 N. E. 2d 93

, this court held that knowledge of the injury's
cause is a part of the knowledge required before a statute of limitations may begin
to run.




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       {¶ 6} In Hardy, this court based its ruling on the right-to-remedy clause of
the Ohio Constitution, which states that "* * * every person, for an injury done him
in his * * * person, * * * shall have remedy by due course of law * * * ." Section
16, Article I, Ohio Constitution.
       {¶ 7} The Hardy court reasoned that the right-to-remedy clause would not
allow a plaintiff's claim to be extinguished before it accrued, that is, before the
plaintiff had knowledge of her injury. Hardy, 

32 Ohio St. 3d at 47

, 

512 N.E. 2d at 628

.
       {¶ 8} Hardy is rooted not only in the right-to-remedy clause of the Ohio
Constitution, but also in common sense. While Hardy dealt nominally with medical
malpractice claims, its reasoning that the right-to-remedy clause requires a
plaintiff's knowledge of her injury should be applied to all claims. It only makes
sense that government cannot begin to regulate the time in which a person has to
bring a claim for an injury until the potential claimant knows both that she has an
injury and the cause thereof.
       {¶ 9} The right-to-remedy clause, as interpreted by this court, thus sets as
the threshold for government action the claimant's knowledge of her injury and its
cause. The particular provision of R.C. 2305.10 at issue falls short of that threshold.
The statute states that a cause of action for DES exposure 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 * * *." (Emphasis added.)
       {¶ 10} Simply put, the two-year statute of limitations is triggered when the
plaintiff learns that she possibly has a DES-related injury.
       {¶ 11} There is more than a semantic difference between knowing that one
has a DES-caused injury and knowing that one may have such an injury. A degree
of certainty is missing. Knowledge of the possibility that an injury may be related




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to a specific cause simply does not reach the constitutionally mandated threshold
granting every person a remedy in due course of law for an injury done.
          {¶ 12} This court has previously identified a practical and essential element
of the Constitution's right-to-remedy clause: "'When the Constitution speaks of
remedy and injury to person, property or reputation, it requires an opportunity
granted at a meaningful time and in a meaningful manner.' (Emphasis added.)"

Gaines, supra,

33 Ohio St. 3d at 60

, 

514 N. E. 2d at 716

, quoting 

Hardy, supra,

32 Ohio St. 3d at 47

, 

512 N.E. 2d at 628

.
          {¶ 13} The "opportunity" forced upon plaintiffs by R.C. 2305.10 is granted
neither at a meaningful time nor in a meaningful manner. First, the statute
enunciates a meaningless cause of action. The statute states that it sets the accrual
date for "a cause of action for bodily injury which may be caused by exposure to
[DES] * * *." No such "cause of action" could even survive Civ. R. 12(B)(6)
scrutiny. 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. The statute sets a limitations period for an inconceivable cause of
action.
          {¶ 14} If such a cause of action is available, it accrues when a physician
tells a patient that she has an injury that "may be related to [DES] exposure."
Therefore, if a doctor tells a patient that there is a one-in-a-thousand chance that the
patient's condition is related to DES exposure, the patient's statute of limitations
begins to run.
          {¶ 15} Alternatively, the statute states that a cause of action accrues when a
claimant "should have become aware that he has an injury which may be related to
* * * exposure" to DES. Thus, when a woman with reproductive-tract problems
reads a magazine article about DES, her cause of action accrues, since she should
know that her problem may be related to DES. The woman need not even know




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that her mother took DES while pregnant-- the statute begins to run when she reads
that DES has, in some cases, caused symptoms like hers.
        {¶ 16} The statute operates as an invitation for plaintiffs' lawyers to violate
Civ. R. 11. That rule states that when an attorney signs a pleading he thereby
certifies that he believes "there is good ground to support it." Because the statute
of limitations begins running when there is the slightest evidence that DES may be
a possible cause of a 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.
        {¶ 17} A plaintiff encounters further difficulties at the summary judgment
level. A claim, in order to be timely under the statute, must be filed based upon the
possibility of an injury. A plaintiff faces the likely prospect that her claim will be
unable to survive a motion for summary judgment.
        {¶ 18} A plaintiff need not be able to prove her claim to a degree of
metaphysical certitude before she may achieve an opportunity for remedy that is
"meaningful." Nor must a plaintiff be able to line up her expert witness before the
statute of limitations begins running. However, the DES portion of R.C. 2305.10
begins the running of the statute of limitations before a plaintiff even knows of her
injury and its cause. It fails to grant Ohioans an opportunity for remedy at a
meaningful time or in a meaningful manner. Therefore, R.C. 2305.10 violates the
Right-to-Remedy Clause of the Ohio Constitution.
                                          B
        {¶ 19} The statute is also unconstitutional because it denies DES plaintiffs
due process of law. This court has held that "a legislative enactment will be deemed
valid on due process grounds ' * * * [1] if it bears a real and substantial relation to
the public health, safety, morals or general welfare of the public and [2] if it is not
unreasonable or arbitrary.'" 

Mominee, supra,

28 Ohio St. 3d at 274

, 28 OBR at




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                                January Term, 1993




349-350, 

503 N.E. 2d at 720-721

, quoting Benjamin v. Columbus (1957), 

167 Ohio St. 103

, 40 O.O. 2d 113, 

146 N.E. 2d 854

, paragraph five of the syllabus.
       {¶ 20} Statutes of limitations bear a real and substantial relationship to the
public's general welfare. They require an orderly and timely prosecution of claims.
This statute, however, clearly invites, even requires, questionable litigation. As has
already been discussed, plaintiffs are forced to begin building their case upon a
mere inkling that they have a DES-related injury. The statute encourages the filing
of suits based upon the possibility of injury caused by DES. The encouragement
of questionable litigation is not related to the general welfare of the public, and the
statute thus violates due process.
       {¶ 21} The statute unreasonably and arbitrarily limits the rights of DES
victims. R.C. 2305.10 also sets the accrual dates for victims of exposure to asbestos
and to Agent Orange. An asbestos victim's cause of action accrues when "the
plaintiff is informed by competent medical authority that he has been injured by
such exposure, or upon the date on which, by the exercise of reasonable diligence,
he should have become aware that he had been injured by the exposure." For Agent
Orange victims, the statute of limitations begins running "upon the date on which
the plaintiff is informed by competent medical authority that he has been injured
by such exposure."
       {¶ 22} DES victims are arbitrarily and unreasonably given a more
restrictive statute of limitations, one unlike any other in the Ohio Revised Code.
Indeed, during oral arguments, respondent's (Eli Lilly & Company's) attorney, who
was arguing for the constitutionality of the statute, stated that he was not aware of
a statute of limitations anywhere in this country which uses the "may be related"
language of R.C. 2305.10. That language unreasonably requires DES victims to
bring their claim based upon the mere possibility of an injury.




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        {¶ 23} The DES-related provision of R.C. 2305.10 does not bear a real and
substantial relation to the public health, safety, morals or general welfare. It is also
unreasonable and arbitrary, and is therefore unconstitutional.
                                            II
        {¶ 24} Finding the statute of limitations for DES claims unconstitutional
requires reading R.C. 2305.10 as if that portion were missing. Thus, a DES plaintiff
would have to bring her action "within two years after the cause thereof arose."
This court has already adopted a "discovery" rule for the accrual of product liability
claims, which should also apply to DES claimants. In O'Stricker v. Jim Walter
Corp. (1983), 

4 Ohio St. 3d 84, 90

, 4 OBR 335, 340, 

447 N. E. 2d 727, 732

, this
court held that "[w]hen an injury does not manifest itself immediately, the cause of
action arises upon the date on which the plaintiff is informed by competent medical
authority that he has been injured, or upon the date on which, by the exercise of
reasonable diligence, he should have become aware that he had been injured,
whichever date occurs first." The same rule should be adopted for DES claimants,
and we therefore instruct the Sixth Circuit Court of Appeals to apply that standard
to the plaintiffs in the underlying case.
                                                               Judgment accordingly.
        A.W. SWEENEY, DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
        MOYER, C.J., dissents.
        WRIGHT, J., not participating.
                                __________________




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