O’brien v. Eli Lilly & Co.

668 F.2d 704 (3d Cir. 1982)

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Nature of the Case

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Facts

These facts are heart-wrenching but necessary for you to understand the case. Mary Ann O'Brien, P's mother, consulted Dr. Kenneth L. Cooper, a gynecologist, and obstetrician, concerning her pregnancy with P, 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. During the summer of 1971, when she was fourteen years old, P 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. The tumor a cell carcinoma occurring in young women that we have found to be frequently associated with maternal Stilbestrol administration. 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. P’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. Mrs. O'Brien denied taking diethylstilbestrol to prevent a miscarriage. 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. P read an article in a January 1976 issue of Newsweek. At this time, she knew that her mother had suffered a miscarriage before appellant was born.

The facts of a second case are extremely similar. Grace Malloy read a newspaper report linking DES to a rare but deadly form of vaginal cancer in young women whose mothers had taken the hormone during pregnancy. Alarmed, Mrs. Malloy asked her doctor if there was anything to this 'scare.' 'You bet your life there is,' he replied. 'You'd better get those girls in for an examination right away.' The result was bad news: Marilyn, Grace’s daughter, had vaginal cancer. Marilyn's vagina and nearby lymph glands were removed; an artificial vagina was constructed using skin grafts from her legs. The doctors were hopeful that they had excised the entire malignancy, but a year later they discovered that the cancer had spread to one lung, the esophagus and the lining of the heart. Following another operation, Marilyn recovered sufficiently to resume her passion-horseback riding. Marilyn's condition worsened. She lost her appetite, suffered from nausea and severe headaches. Tests revealed that the cancer had reached her pituitary gland, and Marilyn underwent a grueling six-week regimen of 'whole head' radiation. When all her hair fell out, as a result, she still refused to give in to self-pity and kept up an active social life, wearing a bright scarf over her head. But at night Mrs. Malloy could hear her daughter moaning in pain with the cancer that was continuing its lethal spread through her arms, legs, spine, and brain. Soon she was blind and confined to a wheelchair. Marilyn died on May 26, 1974, two weeks before her high school class's graduation. In April 1976, P confronted her mother about concealing the truth about the tumor. She was very upset with her parents and dissatisfied with Mrs. O'Brien's explanation for withholding the information. During the course of that confrontation, appellant also asked her mother whether she had taken DES during her pregnancy. Her mother denied taking the drug. Although Mrs. O'Brien does not remember her daughter asking prior to September 1979 whether she had taken DES, appellant's recollection of the 1976 conversation is very clear. In September 1979, P again asked her mother if she had taken DES while pregnant, and Mrs. O'Brien again replied that she had not. This time, however, appellant insisted that her mother call Drs. Cooper and Mikuta in order to determine if she had taken the drug. According to appellant, both doctors confirmed that it had been prescribed for Mrs. O'Brien. On December 31, 1979, appellant filed her complaint against four leading manufacturers of DES. The district court determined that, if she had exercised due diligence, P 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.