Wood v. Eli Lilly and Company

United States Court of Appeals,
Eleventh Circuit.
No. 95-4924.
Susan F. WOOD, individually and as Personal Representative of the
Estate of Bettie W. Wood, and Jonathan H. Wood, Jr., Plaintiffs-
Appellants,
v.
ELI LILLY AND COMPANY, a New Jersey corporation, and Upjohn
Company, Inc., a Delaware corporation, Defendants-Appellees.
Feb. 26, 1997.
Appeal from the United States District Court for the Southern
District of Florida (No. 89-6255-CIV-JAG); Jose A. Gonzalez, Jr.,
Judge.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge and COHILL*,
Senior District Judge.
PER CURIAM:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA PURSUANT TO
ARTICLE V. SEC. 3(b)(6) OF THE FLORIDA CONSTITUTION
TO THE SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:
It appears to the United States Court of Appeals for the
Eleventh Circuit that this case involves an unanswered
question of Florida law that is determinative of this appeal.
Therefore, we certify the following questions of law, based on
the background recited below, to the Supreme Court of Florida
for instructions.
The original complaint in this case was filed in the Broward
County, Florida, Circuit Court on March 1, 1988, Case No. 88-5578-
CS. The named plaintiffs were Bettie W. Wood, Susan Wood and
Jonathan H. Wood, Jr. Bettie W. Wood died in 1991, and her estate
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
was substituted as a party plaintiff.
Defendants removed the action to the United States District
Court for the Southern District of Florida. The gravamen of the
complaint is that the plaintiffs were exposed to the drug
diethylstilbestrol ("DES") in utero because their mother ingested
DES during her pregnancies with the three plaintiffs, and that each
subsequently suffered illnesses allegedly related to DES.
By order dated September 19, 1989, the district court
dismissed the action because of the inability of the plaintiffs to
identify the manufacturer, or manufacturers, of the DES ingested by
their mother.
The plaintiffs appealed to this court, and while the appeal
was pending, the Florida Supreme Court rendered its opinion in
Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990) which held that
a market share theory of liability could be used in DES cases to
apportion liability. This theory permits a plaintiff to bring an
action in such cases without requiring the plaintiff to allege or
prove that a particular defendant produced or marketed the precise
DES taken by (in that case) the plaintiff's mother. Id. at 282.
In an unpublished opinion, on May 3, 1991, this court vacated
the order of the district court and remanded for reconsideration in
light of Conley.
On December 8, 1994, the district court granted the
defendants' motions for summary judgment against Bettie and Susan
Woods on the grounds that their claims were barred by the
applicable statute of limitations—four years.
In this case, the plaintiffs' mother ingested DES during her
pregnancies between April and November, 1956; February and
November, 1958; and July 1961 and March, 1962. The original
complaint in this case was filed March 1, 1988.
In August, 1978, Bettie Wood was diagnosed with clear cell
adenocarcinoma. She underwent surgery followed by yearly medical
examinations with no indication of a recurrence of the cancer until
she was notified on March 2, 1984, that the cancer had recurred.
She died in 1991, and her estate was substituted as a party.
There has never been a diagnosis of cancer for Susan Wood,
although in 1978 she was diagnosed with vaginal adenosis. In
January, 1987, Susan Wood had an ectopic pregnancy and therapeutic
abortion, which she alleges was related to the ingestion of DES by
her mother.
The issue of when the statute of limitations began to run is
now before this court.
The defendants contend, and the district court held, that the
statute of limitations began running more than four years before
the filing of the complaint on March 1, 1988. Bettie Wood was
diagnosed with clear cell adenocarcinoma in 1978 and advised that
there might be a connection between her condition and the DES taken
by her mother.
Susan Wood was diagnosed with vaginal adenosis in 1976 and
told that this condition was often associated with DES exposure.
The plaintiffs argue that no cause of action arose for statute
of limitations purposes until the Florida Supreme Court's decision
in Conley, supra, and that application of the statute of
limitations in this case would deprive the plaintiffs of their
right to access to the courts under the Florida Constitution, Art.
1, Section 21.
The district court specifically rejected plaintiffs'
contentions and entered summary judgment in favor of the defendants
and against Susan F. Wood individually and as Personal
Representative of the Estate of Bettie W. Wood. The action
involving Jonathan H. Wood, Jr. is apparently still pending in the
district court.
The parties in this appeal have raised an issue of first
impression under Florida law. No Florida court has addressed the
question of whether the date of the decision in Conley v. Boyle
Drug Company, 570 So.2d 275 (Fla.1990) is the benchmark for the
commencement of the running of the statute of limitations in a
negligence action such as this where the plaintiffs are relying on
the market share theory of liability and the Florida Constitution
in order to gain access to the courts despite the fact that the
alleged acts of negligence, or the knowledge thereof, occurred more
than four years prior to that decision.
Accordingly, we respectfully certify the following question to
the Supreme Court of Florida.
IN A NEGLIGENCE ACTION CONCERNING THE DRUG DIETHYLSTILBESTROL
("DES") IN WHICH A PLAINTIFF RELIES ON THE MARKET SHARE THEORY OF
LIABILITY TO RECOVER FROM THE DEFENDANTS, AS DESCRIBED IN CONLEY V.
BOYLE DRUG CO., 570 SO.2D 275 (FLA.1990), DOES THE STATUTE OF
LIMITATIONS COMMENCE RUNNING ON THE DATE THAT CONLEY WAS ISSUED OR
ON THE DATE THAT THE PLAINTIFF KNEW, OR REASONABLY SHOULD HAVE
KNOWN, OF HER INJURY?
Our statement of the question is not meant to limit the scope
of inquiry by the Florida Supreme Court. On the contrary, the
particular phrasing used in the certified question is not to
restrict the Supreme Court's consideration of the problems involved
and the issues as the Supreme Court perceives them to be in its
analysis of the record certified in this case. This latitude
extends to the Supreme Court's restatement of the issue or issues
and the manner in which the answers are to be given. Martinez v.
Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir.1968). The entire
record in this case, together with copies of the briefs of the
parties, is transmitted herewith.
QUESTION CERTIFIED.