Cavanaugh v. Abbott Laboratories

496 A.2d 154, 145 Vt. 516, 1985 Vt. LEXIS 334
CourtSupreme Court of Vermont
DecidedApril 26, 1985
Docket84-012
StatusPublished
Cited by75 cases

This text of 496 A.2d 154 (Cavanaugh v. Abbott Laboratories) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cavanaugh v. Abbott Laboratories, 496 A.2d 154, 145 Vt. 516, 1985 Vt. LEXIS 334 (Vt. 1985).

Opinion

Underwood, J.

This is an interlocutory appeal by seven defendant drug manufacturers, in a drug product liability case, challenging the correctness of the order of the Addison Superior Court denying their motions for either judgment on the pleadings or summary judgment. Each of the defendants in support of its motion claimed it was entitled to judgment as a matter of law, alleging that the plaintiff’s drug product liability suit against them was barred by applicable statutes of limitations.

In her complaint, plaintiff alleges that before she was born on March 16, 1957, and while in útero, she was exposed to a synthetic estrogen known as diethylstilbestrol (hereinafter referred to as DES) manufactured by some or all of the defendants. She further alleges that the drug was prescribed by her mother’s physician and that her mother ingested it while plaintiff was a fetus en ventre sa mere. She avers that she was blamelessly ignorant of the harmful effect of DES upon her, and that even by due diligence her injury was not discoverable, and it did not manifest itself, until May 1, 1979. It was then her physician diagnosed that she had contracted a form of vaginal cancer, known as clear cell adenocarcinoma, caused by her fetal exposure to DES. The plaintiff maintains that this drug, together with other factors, including puberty and menarche, was a proximate cause of her cancer.

The questions presented to us by these appeals are: (1) whether, 54 years later, we should now jettison the rule of Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), as an outmoded and unrealistic interpretation of the term “accrues” as used in 12 V.S.A. § 512 (personal injury action must be commenced within three years “after the cause of action accrues” and not after), and hold that plaintiff’s cause of action is not barred by the aforementioned three-year statute of limitations, and (2) if plaintiff’s cause of action is not barred by *520 ■the rule of Murray v. Allen, supra, whether it is barred by the :20-year statute of repose, 12 V.S.A. § 518, which bars claims commenced more than 20 years after the “last occurrence to which injury is attributed.”

We hold that the rule of Murray v. Allen is of no further effect in determining the date when a statute of limitations, such as 12 V.S.A. §§ 512 and 518, commences to run, and that on the basis of the evidence before the trial court, the plaintiff’s cause of action is not barred by the applicable statute of repose, 12 V.S.A. § 518. We therefore affirm the trial court’s denial of the defendants’ motions for judgment on the pleadings and for summary judgment.

FACTS

In the proceedings before the trial court, some of the defendants framed their motions as motions for judgment on the pleadings, V.R.C.P. 12(c), while others filed motions for summary judgment pursuant to V.R.C.P. 56. Where matters outside the pleadings were presented to the trial court and were not excluded by it, the trial court correctly considered them as motions for summary judgment. V.R.C.P. 12(c). In moving for summary judgment, ,

[t]he movant has the burden of proof, and the party opposing the summary judgment motion is to be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue exists. Facts asserted by the opposing party, if supported by affidavits or other evi-dentiary material, are regarded as true.

Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d 1388, 1389 (1981) (citations omitted) (overruled on other grounds by Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983)). This Court will apply the same standard upon review as applied by a trial court when considering the correct disposition of a motion for summary judgment. Braun, supra, 140 Vt. at 306, 437 A.2d at 1389. With this standard in mind, the following facts are relevant to the appeals considered herein.

As alleged in the complaint, the plaintiff was born in Vermont on March 16, 1957. Prior to the plaintiff’s birth, her *521 mother had been taking DES. The plaintiff experienced menarche (the first occurrence of menstruation) at the age of twelve or thirteen. The plaintiff reached the age of eighteen on March 16, 1975, and the age of twenty-one on March 16, 1978. On May 1, 1979, the plaintiff was diagnosed as suffering from a vaginal adenocarcinoma (cancer). The disease had not been discovered, nor had it manifested itself nor could it have been diagnosed, prior to that date. The action in the present case was commenced by the plaintiff on April 23, 1982.

I.

STATUTE OF LIMITATIONS

A. DATE OF ACCRUAL

The initial question which must be decided is which statute of limitations applies to the plaintiff’s cause of action in the present case. This decision is dependent upon a determination of the date upon which the plaintiff’s cause of action accrued because the applicable statute of limitations is that statute in effect at the time the cause of action accrued. Stewart v. Darrow, 141 Vt. 248, 253, 448 A.2d 788, 790 (1982).

Vermont law has recognized two different definitions of the term “accrue.” Under current statutory law, 12 V.S.A. § 512(4) (Supp. 1984) (amended by 1975, No. 248 (Adj. Sess.) ), 1 a cause of action in a personal injury case “shall be deemed to accrue as of the date of the discovery of the injury.” Under this definition of “accrue,” the plaintiff’s cause of action would have accrued on May 1, 1979, the date upon which she discovered she was suffering from cancer. As discussed in Part I-D infra, the applicable statute of limitations in effect on that date does not bar the plaintiff’s cause of action.

*522 The second definition of the term “accrue” is that definition recognized by case law prior to the enactment of the statutory definition in 12 V.S.A. § 512(4) (Supp. 1984). Prior to the enactment of that statute, the definition of “accrue” was set forth in Murray v. Allen, supra. In that case, this Court held that a cause of action in tort accrued at the time of the last negligent act attributable to the defendant. Id. at 376, 154 A. at 679. Were we to apply that rule in the present case, the plaintiff’s cause of action would be barred. The date of the last negligent act attributable to the defendants is March 16, 1957, plaintiff’s date of birth, the last day on which ingestion of DES by the plaintiff’s mother could have had any deleterious effect on the plaintiff. Thus, the date of accrual would be March 16, 1957, and the applicable statute of limitations in effect on that date was 12 V.S.A. § 512 (1959). 2

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Bluebook (online)
496 A.2d 154, 145 Vt. 516, 1985 Vt. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavanaugh-v-abbott-laboratories-vt-1985.