Moll v. Abbott Laboratories ( 1993 )

Cavanagh, C.J.

In these pharmaceutical products liability actions, we are asked to determine when a cause of action for latent toxic injuries accrues for statute of limitations purposes. We hold that the discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action. Thus, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff’s action is barred by the statute of limitations is a question of law, to be determined by the trial judge.

i

A

HARRINGTON V ABBOTT LABORATORIES

Plaintiff Judith Harrington¹ was born on August 5, 1955, in Detroit, Michigan. Her mother, Theresa Harrington, ingested des² during her pregnancy with Judith. Judith Harrington first became aware of her exposure to des in útero in the latter part of 1974. At this time, Dr. Bryce, the Harrington family physician, informed Theresa Harrington by letter of her ingestion of des and the associated reproductive problems found in des daughters. The letter suggested that Judith Harrington consult a physician specializing in des problems.

On the advice of Dr. Bryce, Judith visited Dr. Vakhariya on January 2, 1975, who informed her that she had a mosaic on her cervix, a precancerous condition. Although a biopsy revealed that the tissue was benign, Dr. Vakhariya recommended that Judith have semiannual checkups to monitor her condition.

In 1983, Judith Harrington consulted Dr. Laham because of her inability to conceive a child. Dr. Laham informed Judith of her mosaic cervix and advised her that this condition could be caused by des exposure.³ The doctor also opined that Judith’s difficulty in conceiving could be the result of des exposure. Dr. Laham eventually referred Judith to a reproductive specialist, Dr. Stern, for an extensive examination of her uterus.

Dr. Stern performed a hysterosalpingogram (hsg)⁴ on December 27, 1983. On the same day, Dr. Stern apprised Judith of the test results, informing her that she had a bicornuate or T-shaped uterus, a condition that can result from des exposure, and that could be the cause of her difficulty in conceiving.

In the early part of 1984, Judith became pregnant. Dr. Laham treated the pregnancy as high-risk because of her exposure to des. The doctor placed various restrictions on Judith and her activities. Unfortunately, the precautions proved futile, and Judith miscarried in April of 1984. She learned from Dr. Laham that her uterine deformities caused her miscarriage. Believing that she would experience the same problem with future pregnancies, Dr. Laham advised her not to attempt another pregnancy.

On December 30, 1986, Judith, along with fourteen other named plaintiffs,⁵ filed suit against the defendants, manufacturers of des.⁶ Defendant Eli Lilly & Company, on behalf of all of the defendants, motioned for summary disposition pursuant to MCR 2.116(C)(7), claiming that the three-year products liability, statute of limitations⁷ barred the plaintiff’s suit. Following oral arguments and based upon the pleadings, interrogatory responses, and the sworn deposition of Judith Harrington, Wayne Circuit Court Judge James Mies granted the defendants’ motion. Judge Mies concluded, as a matter of law, that Judith knew or should have known of her cause of action when Dr. Stern diagnosed her bicornuate or T-shaped uterus on December 27, 1983. The Court of Appeals affirmed in an unpublished per curiam opinion. We granted leave to appeal on November 2, 1992. 441 Mich 878. We affirm.

B

MOLL v ABBOTT LABORATORIES

Plaintiff Jean Moll⁸ became aware of the irregularities in her cervix during a gynecological examination by Dr. Ulmer in April of 1975. Because of the condition of her cervix, Dr. Ulmer asked Jean if she had had an abortion.

In August of 1976, Jean visited another gynecologist, Dr. O’Campo, who informed her that she had a hood over her cervix. Dr. O’Campo indicated that Jean’s condition could have resulted from exposure to des in útero. Dr. O’Campo requested the medical records of Jean’s mother.

Jean’s mother, Shirley Petroif, recalled being hospitalized for a month during her pregnancy with Jean. She also recalled that her doctor, Dr. Brownell, had administered medication to prevent her unborn child from aborting. Mrs. Petroif, however, could not recall the name of the prescribed drug. Attempting to ascertain what drug Dr. Brow-nell had administered, Jean and her mother contacted Dr. Brownell’s office to inquire about the needed medical records. Dr. Brownell’s receptionist informed Mrs. Petroif that the records had been sent elsewhere. Further attempts to locate the records were unsuccessful.

In 1977, Dr. O’Campo advised Jean that her cervix "didn’t look good” and that the problem "might be due to the des that [her] mother had taken . . . .” Following the doctor’s recommendation, Jean submitted to another test, a colposcopy, which took place in January of 1978. Following the test, the doctor told Jean that "the results . . . were . . . fine” and "there was no cause for real concern at that time,” but that she had an "incompetent cervix” and this type of problem could have been caused by exposure to des. The doctor also told the plaintiff that exposure to des could lead to cancer.

The plaintiff attempted to conceive a child in 1978. After approximately a year, she grew concerned over her inability to conceive and consulted Dr. O’Campo. In February of 1979, Dr. O’Campo told the plaintiff that the hood over her cervix could be preventing conception. Furthermore, the doctor informed Jean that her exposure to des in útero possibly could have caused the hood on her cervix.

In May of 1980, Dr. O’Campo suggested that the Molls undergo a series of fertility tests because of their continued inability to conceive. These tests were never performed, however, because Jean did not consult Dr. O’Campo again until 1985. Jean was once again informed that the hood on her cervix was the probable cause of her infertility. The plaintiff also learned at the time that her incompetent cervix could cause difficulties in carrying a child to term.⁹

Jean Moll filed suit against the defendants, manufacturers of des, on December 30, 1986.¹⁰ On July 8, 1988, Judge Mies granted Eli Lilly’s¹¹ motion for summary judgment pursuant to MCR 2.116(0(10), because of the plaintiff’s inability to prove that her mother ingested des, a requirement for alternative liability.¹² The court delayed entry of the order, however, until September 9, 1988, to allow Jean additional time to locate Mrs. Petroff’s medical records. With the aid of a court order, Jean located Mrs. Petroff’s medical records at the Highland Park City Clerk’s office. The records confirmed that Dr. Brownell had administered des to Mrs. Petroff.

In December of 1988, the defendant Eli Lilly¹³ moved for summary judgment pursuant to MCR 2.116(C)(7). The defendant claimed that Jean Moll’s suit was barred by the applicable three-year statute of limitations¹⁴ because she knew of a possible cause of action for more than three years before filing suit. On the basis of the pleadings, interrogatory responses, and the sworn deposition testimony of plaintiff Moll and her mother, Mrs. Petroff, Judge Mies denied the defendant’s motion, finding that the plaintiff’s claim did not accrue until she had proof that her mother ingested des.

The Court of Appeals affirmed the denial of Eli Lilly’s motion for summary disposition on different grounds. It rejected the trial court’s contention that a cause of action does not accrue until the plaintiff could prove each element of her claim. The panel also rejected the line of cases holding that a plaintiff’s 'cause of action accrues when she discovers or should have discovered the existence of a possible cause of action. 192 Mich App 724, 731; 482 NW2d 197 (1992). Instead, the Court held "that a plaintiff’s cause of action does not accrue until the plaintiff discovers or through the exercise of reasonable diligence should have discovered that the plaintiff has been injured and what a likely cause of the injury was.” The panel determined that a factual dispute existed regarding when Jean discovered that des was the likely cause of her injuries. Accordingly, the trial court’s denial of Lilly’s motion was affirmed. We granted the defendants’ application for leave to appeal on November 2, 1992. 441 Mich 878. We reverse.

ii

The applicable period of limitation for a products liability action is three years. MCL 600.5805(9); MSA 27A.5805(9). The limitation period begins to run on the date a claim accrues, which is controlled by statute:

Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time of the wrong upon which the claim is based was done regardless of the time when damage results. [MCL 600.5827; MSA 27A.5827.]

In Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972), we held that the term "wrong,” as used in the accrual statute, specified the date on which the defendant’s breach harmed the plaintiff, as opposed to the date on which the defendant breached his duty. Common sense dictated such an interpretation because, if the date of the defendant’s breach designated the date of accrual, then the plaintiff’s claim could be barred before a plaintiff suffers an injury.¹⁵ Similarly, our concern about barring a plaintiff’s cause of action prematurely has led to our adoption of the discovery rule under the proper circumstances.

In Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963),¹⁶ this Court adopted the discovery rule for medical malpractice cases. In doing so, we noted: "[I]t would be 'illogical and unintelligent’ to require a patient to determine on the date he last consults a physician that malpractice has taken place, when he in fact relies upon the advice that constitutes the malpractice. So to hold would punish the patient who relies upon his doctor’s advice and places a premium on skepticism and mistrust.” We also adopted the discovery rule in negligent misrepresentation cases. "[I]s there a tort cause of action accruing before plaintiff has knowledge, or should have knowledge, of the negligent misrepresentation? We think not.” Williams v Polgar, 391 Mich 6, 25; 215 NW2d 149 (1974). Likewise, we have applied the discovery rule in products liability actions for asbestos related diseases, Larson v Johns-Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986).

In these consolidated cases, the plaintiffs argue that the discovery rule applies in pharmaceutical products liability claims. We agree.¹⁷ Similar to a plaintiff in an asbestos case, a plaintiff harmed by a prescribed medication is most often unaware of latent resulting injuries. If the three-year period of limitation began to run at the time of the defendant’s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks "to declare the bread stale before it is baked.” Fleishman v Eli Lilly & Co, 96 AD2d 825, 826; 465 NYS2d 735 (1983) (Gibbons, J., concurring in part and dissenting in part).

Furthermore, the policies behind the statute of limitations do not preclude the use of the discovery rule in pharmaceutical products liability cases. This Court discussed the policies underlying the statute of limitations in Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974), where we stated:

Statutes of limitations are intended to "compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend”; "to relieve a court system from dealing with 'stale’ claims, where the facts in dispute occurred so long ago that evidence was either forgotten or manufactured”; and to protect "potential defendants from protracted fear of litigation.”

Nevertheless, as properly noted by the Court of Appeals, application of the discovery rule is appropriate in pharmaceutical products liability cases.

"With respect to the problem of lost or inaccurate evidence due to the passage of time, several reasons exist why the potential for prejudice to the defendant is not significant in a drug case of this kind. Most of the evidence necessary to prove or defend against liability is likely to be documentary in nature. It is not the kind of evidence that is lost or becomes unreliable as time passes. Companies generally compile and maintain research records that document the extent of their knowledge of the harmful propensities of their drugs. Certainly, doctors and hospitals meticulously maintain and store records of patient treatments. . . . Additionally, unlike the situation in most cases, the passage of time in a drug case is likely to increase both the amount and the accuracy of the evidence —in this case the scientific community’s knowledge of the causal relationship between certain drugs and injury or disease. Finally, we note that manufacturers are in a superior position to control the discovery of the hazards of their products. 'Through the processes of design, testing, inspection and collection of data on product safety performance in the field, the manufacturer has virtually exclusive access to much of the information necessary for effective control of dangers facing product consumers. Indeed, the strict principles of modern products liability law evolved in part to motivate manufacturers to use this information to help combat the massive problem of product accidents.’ Owen, Punitive Damages in Products Liability Litigation, 74 Mich L R 1258 (1976). We do not think that in suits such as the instant one 'the passage of time would increase problems of proof or entail the danger of false, fraudulent, frivolous, speculative or uncertain claims.’ ” [Bonney v Upjohn Co, 129 Mich App 18, 33-34; 342 NW2d 551 (1983).]

Because the purpose of the statute of limitations is not offended by the application of the discovery rule in pharmaceutical products liability cases, and because adoption of the discovery rule will furnish a reasonable time for injured plaintiffs to seek legal redress for their injuries,¹⁸ we hold that the discovery rule governs the date of accrual for pharmaceutical products liability cases.

iii

A cause of action for personal injuries accrues when a plaintiff can allege, in a complaint, each element of the asserted claim. Generally, a well-pleaded claim for personal injury must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, (3) the defendant’s breach was the proximate cause of the plaintiff’s injuries, and (4) damage. Connelly at 150. However, in a pharmaceutical products liability action, as in other cases in which we have applied the discovery rule, the defendant’s duty and breach generally predate the plaintiff’s awareness of an injury and of its cause. Accordingly, under the discovery rule, the plaintiff’s claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered, the two later occurring elements: (1) an injury, and (2) the causal connection between plaintiff’s injury and the defendant’s breach. See, generally, Caldwell, Polgar, and Larson, supra.

A

At oral argument, the plaintiffs’ counsel urged the Court to adopt a DES-specific discovery rule that would forestall the running of the applicable statute of limitations until the plaintiff perceived herself to be injured. Counsel reasoned that the proposed rule would promote the strong policies articulated in Abel and allow a totally blameless plaintiff to seek legal redress against a tortfeasor.

Certainly, adoption of a subjective test would give a plaintiff a greater opportunity to bring suit against an alleged wrongdoer. But this approach would also vitiate the statute of limitations as a defense.¹⁹ In enacting the three-year statute of limitations, the Legislature has provided a time limitation that in its judgment gives a plaintiff a reasonable opportunity to investigate a cause of action.²⁰ This Court has recognized specific situations in which the discovery rule must be utilized to prevent unjust results. See Johnson, Polgar, and Larson, supra. While we have provided judicial relief to plaintiffs whose actions would be barred by the statute of limitations through no fault of their own, id., we will not encourage and cannot allow a plaintiff to sleep on an objectively known cause of action.

Adoption of a subjective test would allow a des plaintiff to legally forestall suit until the time she is convinced that she is injured.

If plaintiff prevails on question at issue here, that point is never reached until a plaintiff is subjectively certain of the cause of the injury. That, of course, will never be more than three years prior to filing the complaint because the date of such "discovery” will be completely under the control of the plaintiff. [Keith-Popp v Eli Lilly & Co, 639 F Supp 1479, 1482 (WD Wis, 1986).]

If the Legislature had deemed it appropriate to permit a plaintiff discretion to bring suit, it never would have enacted a statute of limitations or would have provided a specific exception for des victims.

We have consistently held that under the discovery rule, a cause of action accrues when "the claimant knows or should have known of the disease [injury] . . . .”²¹ While the term "knows” is obviously a subjective standard, the phrase "should have known” is an objective standard based on an examination of the surrounding circumstances. Consequently, we find that a plaintiff’s cause of action accrues when, on the basis of objective facts, the plaintiff should have known of an injury, even if a subjective belief regarding the injury occurs at a later date. Such an interpretation leaves the statute of limitations as a viable defense and promotes the policies underlying the adoption of the statute of limitations.

Michigan jurisprudence compels not only the use of an objective standard for determining when an injury is discovered, but it also compels strict adherence to the general rule that "subsequent damages do not give rise to a new cause of action.” Larson at 315. The discovery rule applies to the discovery of an injury, not to the discovery of a later realized consequence of the injury.

In Larson, we held that an action for the asbestos-related disease, asbestosis, accrues at the time a plaintiff knows or should have known of the disease, and not at the time of exposure to the asbestos. We also held that a plaintiff who develops cancer as a result of asbestos exposure may bring suit within three years of when the cancer was or should have been discovered, regardless of whether asbestosis had developed before the three-year limitation period, in cases where a prior action had not been brought.²² Larson at 304-305. We reasoned that deviation from the general rule was warranted because cancer and asbestosis are two distinct diseases that result from asbestos exposure. " 'It is widely accepted by the scientific community that asbestosis and cancer are not medically linked, that is, cancer is not an outgrowth or complication of asbestosis.’ ” Id. at 315, n 6. We premised our decision in Larson on the independence of the asbestos-related diseases, and we specifically noted the narrow application of the exception to asbestos claims.

A review of the facts in Harrington clearly reveals that the plaintiffs’ injuries, in the cases at bar, are not independent diseases warranting a departure from the general rule. Plaintiff Judith Harrington claims that her infertility is her injury and that until her miscarriage she was not aware of this injury. Judith Harrington confuses, however, her DES-related physical abnormality (her injury) with a later realized consequence of this physical abnormality. The exposure to des in útero caused physical abnormalities in her uterus, namely, a bicornuate or T-shaped uterus. Because of this injury, she had difficulty conceiving and carrying a pregnancy to term. The full extent of Judith Harrington’s injury and subsequent damage related to her physical abnormality (i.e., her infertility) was fully detectable at the time of initial discovery of her injury. Her infertility was an outgrowth of her deformed uterus.²³ In order to promote finality and prevent overburdening of our judicial resources, we adhered to the general principle that the discovery of an injury commences the running of the statute of limitations._

"Thus, if there is a coincidence of a negligent act with the fact of some damage, the cause of action comes into being and the statute of limitations begins to run even though the ultimate damage is unknown or unpredictable.” [Larson at 315, quoting 51 Am Jur 2d, Limitation of Actions, § 136, p 706.]

Once a plaintiff discovers a des injury, she has three years to consult with the legal and medical community about her claim and resulting damages. To hold that the statute of limitations did not begin to run until the plaintiff realized additional consequences of her physical abnormality²⁴ would circumvent the clear intent of the Legislature to promote prompt resolution of claims.

B

The Court of Appeals panel in Moll rejected the discovery rule standard as set forth in Bonney, where the Court of Appeals stated:

A plaintiff’s cause of action accrues when he discovers or, through the exercise of reasonable diligence, should have discovered that he has a possible cause of action. [Bonney at 24. Emphasis added.]

In rejecting Bonney’s characterization of the discovery rule, the Moll panel reasoned:

We agree that the discovery rule should be employed in the present case. However, we find that the phrase "possible cause of action” as used in Bonney and the later cases inappropriately implies that a plaintiff’s claim accrues once the plaintiff discovers or should have discovered that there is any possibility that all the elements of a cause of action exist. Rather, we believe that the proper interpretation of the discovery rule in the context of the present case is that a plaintiff’s cause of action does not accrue until the plaintiff discovers or through the exercise of reasonable diligence should have discovered that the plaintiff has been injured and what a likely cause of the injury was. To trigger the running of the period of limitation, the plaintiff need only have information that would lead a reasonable person to be aware, or after diligent inquiry to become aware, of the plaintiff’s injury and a likely cause of the injury. In either situation, the potential litigant will be considered to have received sufficient notice to allow the limitation period to begin to run. It is not necessary that the plaintiff be able to prove each element of the cause of action before the statute of limitations takes effect.[²⁵] Fidler v Eastman Kodak Co, 555 F Supp 87, 91 (D Mass, 1982), aff’d 714 F2d 192, 199 (CA 1, 1983). [192 Mich App 731.]

The Court of Appeals interpretation increases the period before which a plaintiff’s claim accrues under the discovery rule because a "possible cause of action” generally will be discovered before a "likely cause” of injury. Because we find that such an interpretation upsets the balance sought between the judicially created discovery rule and the legislatively mandated statute of limitations, we hold that Bonney’s characterization of the discovery rule is the proper standard.

The Moll panel’s interpretation of the discovery rule raises the level of certainty with respect to causation. According to Black’s Law Dictionary (6th ed), p 925, the term "likely” is defined as:

Probable. Horning v Gerlach, 139 Cal App 470 [471-473]; 34 P2d 504, 505 [1934]. In all probability. Neely v Chicago Great Western R Co, 14 SW2d 972, 978 [Mo App, 1928]. Likely is a word of general usage and common understanding, broadly defined as of such nature or so circumstantial as to make something probable and having better chance of existing or occurring than not. People v Randall, 711 P2d 689, 692 [Colo, 1985].

The term "possible,” on the other hand, connotes a lesser standard of information needed to provide knowledge of causation. Black’s Law Dictionary defines the term "possible” as:

Capable of existing, happening, being, becoming or coming to pass; feasible, not contrary to nature of things; neither necessitated nor precluded; free to happen or not; contrasted with impossible. [Id. at 1166.]

When determining the appropriate standard for the discovery rule, we must keep in mind the policy reasons prompting the adoption of the statute of limitations, as well as the discovery rule, and choose the interpretation that best promotes both policies and does the least amount of damage to the respective principles of law.²⁶ In Lothian v Detroit, 414 Mich 160, 166-167; 324 NW2d 9 (1982), we articulated the policy considerations prompting the adoption of the statute of limitations:

They encourage the prompt recovery of damages; they penalize plaintiffs who have not been industrious in pursuing their claims; they "afford security against stale demands when the circumstances would be unfavorable to a just examination and decision”; they relieve defendants of the prolonged fear of litigation; they prevent fraudulent claims from being asserted; and they "remedy . . . the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.” [Citations omitted.]

As discussed earlier, this Court has adopted the discovery rule to prevent the barring of claims before the claimant’s realization of a cause of action. See Johnson, Polgar, and Larson, supra.

While the Court of Appeals applicable test of a "likely cause” obviously addresses our concern against barring a plaintiff’s cause of action prematurely, it also wreaks havoc with the legislative policies underlying the statute of limitations. The statute of limitations encourages claimants to investigate and pursue causes of action. It alleviates defendants’ continued fear of litigation following a legislatively mandated time period.²⁷ A "likely cause” standard is inapposite to such policies.

We find that the best balance is struck in the use of the "possible cause of action” standard. This standard advances the Court’s concern regarding preservation of a plaintiff’s claim when the plaintiff is unaware of an injury or its cause, yet the standard also promotes the Legislature’s concern for finality and encouraging a plaintiff to diligently pursue a cause of action. Once a claimant is aware of an injury and its possible cause, the plaintiff is aware of a possible cause of action. We see no need to further protect the rights of the plaintiff to pursue a claim, because the plaintiff at this point is equipped with sufficient information to protect the claim.²⁸ This puts the plaintiff, whose situation at one time warranted the safe harbor of the discovery rule, on equal footing with other tort victims whose situation did not require the discovery rule’s protection. This position is consistent with the jurisprudence of our state.

"It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claims.” [Kroll v Vanden Berg, 336 Mich 306, 311; 57 NW2d 897 (1953).]

Additional support for our adoption of a "possible cause of action” standard²⁹ is found in other cases applying the discovery rule.³⁰

IV

The final question we must resolve is whether a plaintiff’s request for a jury trial prohibits a trial judge from granting a motion for summary disposition based on the statute of limitations. We hold that in the absence of disputed facts, the question whether a plaintiff’s cause of action is barred by the statute of limitations is a question of law to be determined by the trial judge.

We have long recognized that a jury is charged with resolving disputed facts. Kroes v Harryman, 352 Mich 642, 648; 90 NW2d 444 (1958); Christiansen v Hilber, 282 Mich 403, 407; 276 NW 495 (1937); Peoples Wayne Co Bank v Wolverine Box Co, 250 Mich 273, 279; 230 NW 170 (1930). However, "[b]efore a jury is ever reached a preliminary decision must always be made, namely, whether or not there is anything to go to a jury.” Kroes at 646. Where the facts of a case are uncontroverted and the only question left is what legal conclusions can be drawn from the facts, the question is for the court and not the jury. Kroes at 648; Coddington v Robertson, 160 Mich App 406, 410; 407 NW2d 666 (1987).

Both our court rules³¹ and case law recognize the desirability of allowing summary disposition, regardless of a jury request, when uncontroverted facts are presented to the court. This promotes efficiency and preservation of judicial resources.

The summary judgment law provides a speedy method of determining whether there are any issues of fact in causes arising upon contract, judgment, or statute. If there are such issues of fact, the motion for summary judgment is denied, and the issues are left for a jury to determine; if there are no questions of fact, the judge applies the law in accordance with the admitted facts as disclosed by the affidavits. [Peoples Wayne Co Bank at 277-278. Emphasis added.]

While we do not tolerate usurping the province of the jury,³² we do permit courts to determine a case when only a question of law exists. We permit courts to act in this manner as seen in summary judgment proceedings pursuant to MCR 2.116(C)(1) through (10),³³ a grant of a directed verdict,³⁴ as well as a judgment notwithstanding the verdict.³⁵

While a court must be cautious when dismissing a claim pursuant to summary disposition,³⁶ it does not have to remain idle in the presence of undisputed, uncontroverted facts. In this situation, the only question remaining is what legal conclusion can be drawn from the facts. This question is to be decided as a matter of law by the trial judge.

v

On the basis of the foregoing principles, we hold that the statute of limitations bars Judith Harrington’s and Jean Moll’s lawsuits. The uncontro-verted deposition testimony of Judith Harrington reveals that as of December 27, 1983, she knew of (1) her bicornuate or T-shaped uterus, and (2) the possible link between her des exposure and the deformity of her uterus. She not only knew of her injury, but its possible cause. Accordingly, she knew or should have known of her possible cause of action on December 27, 1983. Consequently, she had until December 27, 1986, to consult with the legal and medical community in order to ascertain the full extent of her damages and to file suit. Her failure to file suit by December 27, 1986, compels us to hold that the statute of limitations bars her claim.

The uncontroverted deposition testimony of Jean Moll reveals that as of August 1976 she knew of (1) her hooded cervix, and (2) the possible link between des exposure and her deformed cervix. She not only knew of her injury, but its possible cause. Accordingly, she knew or should have known of her possible cause of action no later than August of 1976. Consequently, she had until August 1979 to consult with the legal and medical community in order to ascertain the full extent of her damages and to file suit. Her failure to file suit by August 1979 compels us to hold that the statute of limitations bars her claim.

vi

The discovery rule controls the determination , of when a cause of action accrues in a pharmaceutical products liability action. We hold that under the discovery rule, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff’s action is barred by the statute of limitations is a question of law, to be determined by the trial judge.

The law imposes on a plaintiff, armed with knowledge of an injury and its cause, a duty to diligently pursue the resulting legal claim. Because neither Judith Harrington nor Jean Moll filed suit within three years of discovering their possible causes of action, the statute of limitations bars their suits.³⁷

Accordingly, we affirm the Court of Appeals holding in Harrington and reverse the Court of Appeals holding in Moll.

Brickley, Riley, and Griffin^ JJ., concurred with Cavanagh, C.J.

1 This action was originally filed under the plaintiff’s married name Judith Wrook. Mrs. Wrook’s husband, Kenneth, joined in the original claim. On February 3,1989, Judge Mies granted Mrs. Wrook’s motion to amend the caption, to Judith Harrington. Additionally, Mr. Wrook was dismissed as a plaintiff. This opinion will refer to the plaintiff by her maiden name, Judith Harrington.

2 Diethylstilbestrol (des) is a synthetic estrogen which was prescribed by doctors to pregnant women who had a history of miscarriages or were otherwise at risk in carrying their pregnancy to term. . . . While the mother is exposed to des during pregnancy, cancer and other genital abnormalities will not be manifested until the des daughter (or, in some cases, son) reaches adolescence or early twenties. [Glessner, Torts — Limitations statutes — Application of the Pennsylvania statute of limitations discovery rule in DES cases—O’Brien v Eli Lilly & Co, 668 F2d 704 (CA 8, 1981), 55 Temple L Q 1149, n 3 (1982).]

3 According to the plaintiff, every doctor she consulted, informed her of her mosaic cervix, that this was a precancerous condition, and that it could have been caused by her exposure to des in útero.

4 An hsg involves the injection of dye into the uterus and fallopian tubes to enable a physician to view the structure of the uterus. Sloane-Dorland Annotated Medical Legal Dictionary, West, p 362.

5 The original complaint named fifteen plaintiffs, including plaintiff Moll and her husband, as well as over two hundred defendants. Pew v Abbott Laboratories, Wayne Circuit Court Docket No. 86-636745-NP, filed December 30, 1986. Judge Mies severed the plaintiffs’ claims into separate lawsuits in response to E. R. Squibb’s motion to sever. The date of filing the separate actions continued to be the date of filing the original complaint: December 30, 1986.

6 Various defendants have been dismissed from the cases because of the impossibility that they provided the des ingested by the plaintiffs’ mothers.

7 MCL 600.5805(9); MSA 27A.58O50).

8 Michael Moll joins his wife, Jean Moll, as plaintiffs. Because Mr. Moll’s loss of consortium claim is derivative and dependent on Mrs. Moll’s claim, and to avoid confusion, we shall refer only to the plaintiff, Jean Moll, throughout this opinion.

9 The plaintiff testified that she received additional information on des and its accompanying physical complications from magazine and newspaper articles.

10 See n 5.

11 The other defendants concurred in Eli Lilly’s motion.

12 Abel v Eli Lilly & Co, 418 Mich 311; 343 NW2d 164 (1984).

13 The other defendants concurred in Eli Lilly’s motion.

14 MCL 600.5805(9); MSA 27A.5805©).

15 "Except in topsy-turvy land, you can’t die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of legal 'axiom,’ that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e., before a judicial remedy is available to the plaintiff.” [Patterson v Her Majesty Industries, Inc, 450 F Supp 425, 428, n 5 (ED Pa, 1978), quoting Dincher v Marlin Firearms Co, 198 F2d 821, 823, n 5 (CA 2, 1952) (Frank, J., dissenting).]

16 Superseded by statute as stated in Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 428, n 2; 329 NW2d 729 (1982) ("Dyke [v Richard, 390 Mich 739; 213 NW2d 185 (1973)], entitled a plaintiff to a two-year extension on the limitations period from the time of discovery of malpractice. 1975 PA 142 has since reduced the extension to six months from the time of discovery or two years from last treatment, whichever is greater”).

17 While Abel, n 12 supra, did not specifically address the applicability of the discovery rule in des cases, our holding implicitly approved of the application.

18 The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. ... It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought and a statute that fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law. [Price v Hopkin, 13 Mich 318, 324-325 (1865). Citations omitted.]

19 It has . . . come to be recognized that the statute of limitations is not a disfavored plea but a perfectly righteous defense .... [Bigelow at 570.]

20 See Price, n 18 supra at 324-325.

21 Larson at 304.

22 In Larson, we emphasized the limited scope of our holding:

[W]e are not deciding in this case whether a claimant who did file a suit to recover for asbestosis may file a second suit for cancer at a later date. [Id. at 305, n 1. Emphasis in original.]

23 Because neither plaintiff advances a claim for cancer, and thus the record provides no evidence of a link between the physical abnormalities a des daughter may experience and clear cell adenocarcinoma, a DES-related cancer, we do not resolve: (1) Whether a des daughter’s cause of action for cancer is barred by earlier knowledge of a DES-related physical abnormality, or (2) whether a des daughter’s cause of action for cancer is barred by an earlier suit for a DES-related physical abnormality.

24 “A later injury from the same tortious act does not restart the running of the statute.” The only thing that has changed [by the adoption of the discovery rule] is that accrual of a cause of action occurs at the time of discovery of the injury rather than at the time of injury. [Keith-Popp at 1483, quoting Segall v Hurwitz, 114 Wis 2d 471, 482; 339 NW2d 333 (1983).]

25 In both the trial court, as well as the Court of Appeals, plaintiff Jean Moll argued "that because ingestion of des by her mother is an essential element of her cause of action, accrual did not occur until she found the hospital records that proved ingestion.” 192 Mich App 729. (Emphasis added.) While the trial court agreed with this reasoning, the Court of Appeals rejected the argument, stating that the plaintiff need not be able to prove her cause of action before the statute of limitations begins to run. The question when a cause of action accrues for statute of limitations purposes is not whether the plaintiff has knowledge of sufficient facts to prevail on a claim, but whether the plaintiff has knowledge of sufficient facts to cause a reasonable person to pursue an investigation that could uncover the evidence needed to lead to an ultimate victory. Because the plaintiff failed to cross-appeal this part of the Court of Appeals decision, and because we discern no need to act sua sponte on this issue, that portion of the Court of Appeals decision will not be disturbed.

26 See, generally, Yustick v Eli Lilly & Co, 573 F Supp 1558, 1566 (ED Mich, 1983).

27 The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to he free of stale claims in time comes to prevail over the right to prosecute them. [Order of It Telegraphers v Railway Express Agency, 321 US 342, 349; 64 S a 582; 88 L Ed 788 (1944).]

28 Contrary to the dissent’s claim, the majority’s approach does not advocate prematurely filing suit, instead it advocates, in harmony with the statute of limitations, diligently pursuing and investigating a possible cause of action, once the plaintiff’s cloak of ignorance is swept away. A des plaintiff is then similarly situated with other tort victims who have three years to investigate and bring suit. The majority’s approach provides the plaintiff with the opportunity to bring suit while simultaneously recognizing the Legislature’s desire, as announced in the statute of limitations.

29 In Bowen v Eli Lilly & Co, Inc, 408 Mass 204, 207; 557 NE2d 739 (1990), the Massachusetts Supreme Judicial Court addressed the "level of notice of causation a plaintiff must have to trigger the running of the statute of limitations.” The court characterized the standard as a "likely standard,” yet required a lesser quantum of information than "likely” to commence the running of the statute of limitations. The court itself specifically found that the "likely standard” did not require a finding of probability on the issue of causation.

The plaintiff argues that the reference to "notice of likely cause” in the quoted language means that a plaintiff must have probable cause to believe that the defendant’s acts were the cause of her physical injuries before the statute begins to run. There is no Massachusetts case law in support of this view. The Court of Appeals opinion does not adopt that position. Our Appeals Court did not read the Court of Appeals opinion as the plaintiff claims when it said: "Massachusetts does not require discovery of each of the elements of the cause of action — duty, breach, causation, and damages before the limitation clock in [Mass Gen Laws, ch 260, §4] starts ticking. . . . Rather, the three-year limitations period commences to run when a reasonably prudent person (in the tort claimant’s position), reacting to any suspicious circumstances of which he might have been aware (what the Court of Appeals in Fidler called 'likely cause’), should have discovered that he had been harmed by his physician’s treatment. . . .” Malapanis v Shirazi, 21 Mass App 378, 382-383 [487 NE2d 533] (1986). We do not require that a plaintiff have notice of a breach of a duty before a cause of action may accrue, but we do require that a plaintiff have (1) knowledge or sufficient notice that she was harmed and (2) knowledge or sufficient notice of what the cause of harm was. [Id. at 208. Emphasis added.]

Thus, the Court of Appeals reliance on Bowen to justify abandoning the Bonney "possible cause of action” standard is misplaced. Not only did the Bowen court explicitly acknowledge that a lesser quantum of information causes a claim to accrue, but the application of the discovery rule to the Bowen facts reveals a standard more analogous to Michigan’s "possible cause of action” standard.

30 See also Kullman v Owens-Corning Fiberglas Corp, 943 F2d 613, 616 (CA 6, 1991) (the United States Court of Appeals for the Sixth Circuit, in construing Michigan law, held that a plaintiff’s claim for asbestos-related lung disease accrued when the plaintiff was aware of his injury, that it was caused by dust, and that the dust in his work environment contained asbestos; the court rejected the plaintiff’s claim that the cause of action did not accrue until a definite diagnosis of asbestosis had been rendered); Fidler v Eastman Kodak, 714 F2d 192, 200 (CA 1, 1983) (the court held that a plaintiff’s cause of action accrued when she learned of information that "was enough to lift the issue of causation out of the realm of the 'inherently unknowable’ wrong”); Grigsby v Sterling Drug Inc, 428 F Supp 242, 244 (D DC, 1975) (the court held that the plaintiff’s claim accrued when her doctor informed her that there was "a possibility” that the medication manufactured by the defendant caused her hearing loss),

31 See, generally, MCR 2.116(0(1) through (10).

32 "At best any standard describes an approach or judicial attitude. The dominant characteristics of the approach or attitude in Michigan are that the right to trial by jury must be preserved, and that directed verdicts are drastic steps which should not be taken unless reasonable men could not differ on each and every element of the party’s claim.” [Napier v Jacobs, 429 Mich 222, 232; 414 NW2d 862 (1987), quoting Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), R 2.515, § 5, p 229.]

33 DiFranco v Pickard, 427 Mich 32, 54; 398 NW2d 896 (1986) (when there is no genuine issue with respect to any material fact and reasonable minds could not differ regarding the legal conclusions to be drawn from the facts, summary judgment is appropriate).

34 Gooch v Wachowiak, 352 Mich 347, 351; 89 NW2d 496 (1958) ("When the undisputed facts or all the testimony, construed in the light most favorable to plaintiff, fail to show want of probable cause a verdict for defendant should be directed”).

35 Cunningham v Garber, 361 Mich 90, 94; 104 NW2d 746 (1960). ("There being no dispute of facts on the controlling issues and no inferences or version of the facts possibly favorable to plaintiff, it was, therefore, the duty of the court to enter judgment non obstante veredicto for defendants.”) See also May v William Beaumont Hosp, 180 Mich App 728; 448 NW2d 497 (1989).

36 "In deciding motions for and reviewing orders granting or denying, summary disposition, directed verdict and judgment notwithstanding the verdict, the court must view the evidence in the light most favorable to the nonmoving party . . . DiFranco, n 33 supra at 38. If reasonable minds could disagree about the conclusions to be drawn from the facts, a fact question exists that must be presented to the jury. When there is no genuine issue with respect to any material fact and reasonable minds could not differ regarding the legal conclusions to be drawn from the facts, summary judgment can be granted without violating the right to a jury trial. Id. at 54.

In the cases at bar, reasonable jurors could not differ regarding when the plaintiffs knew, or with reasonable diligence should have known, of their possible causes of action. The undisputed facts reveal the dates when the plaintiffs became aware of their injury and its suspected cause, the facts that provide the basis of their possible causes of action. The law does not oblige a trial judge to sit idle and present the issue to a jury when the undisputed facts support but one conclusion. It is imperative to recognize, however, that a contrary scenario would command strict adherence to the recognized right of trial by jury. See MCR 2.116(I)(3).

37 "It would have been an idle ceremony, under the evidence, to have submitted the case to the jury, for the direct, positive and uncontradicted evidence presented an issue of law for the court and not an issue of fact for the jury.” [Christiansen at 407. Citations omitted.]