DocketNumber： 589-594
Judges： Rowley, Wieand, Sole
Filed Date： 12/20/1985
Status： Precedential
Modified Date： 11/13/2024
In this action stating five separate claims for injuries allegedly sustained by five women against all pharmaceutical companies who allegedly manufactured diethylstilbestrol (DES), in which the women alleged that the drug had been ingested by their mothers (only one alleged that she had ingested the drug herself), the trial court granted complete or partial summary judgments in favor of twenty-six named defendants whose products could not have caused the injuries sustained by the plaintiffs designated in the defendants’ respective motions for summary judgment. In an appeal from these summary judgments, the plaintiff-appellants do not dispute that the defendant-appellees’ products could not have been ingested by them or their mothers, but they contend that there should be industry-wide liability for injuries caused by the ingestion of DES. We reject this
In separate actions against seventy-two pharmaceutical companies, four women alleged various physical disabilities which they attributed to the ingestion of DES by their mothers during pregnancies in the 1950’s. Another woman’s cause of action, i.e., that of Mrs. Stark, was based upon her own ingestion of DES. DES is a synthetic estrogen first synthesized in 1937 and frequently prescribed by physicians for various purposes, including deterrence of miscarriages. The complaints in this case did not contain averments regarding the identity of the manufacturer whose product had been ingested by the respective users. Plaintiffs concede that they cannot do so. Instead, their complaints contained averments that the defendant pharmaceutical companies were jointly and/or severally liable because, at the time of ingesting the drug, DES was being marketed in generic form.
On June 22, 1982, pursuant to an uncontested motion by Eli Lilly and Company, one of the defendants, the trial court issued an order relating to organization of the defendants and discovery. The order called for a “first stage” of discovery to end June 30, 1983. It said:
The Court recognizes that this is a complicated action which will require a considerable amount of discovery. The Court also recognizes that time and expense to all parties will be minimized if the first stage of such discovery is limited to the determination of which defendants are proper parties to this action. After a determination of the identity of the product ingested by the mothers of plaintiff daughters, some defendants may wish to file motions for relief by way of dismissal, summary judgment or otherwise____
(emphasis added). The court ordered further that first stage discovery should consist of depositions, interrogatories and requests for admissions of those who may aid in the determination of the proper parties to the action. Plaintiffs were given until September 1, 1982 to effectuate
Twenty-six of the forty remaining defendants thereafter filed motions for summary judgment. Each of these defendants argued that discovery proceedings had revealed that the plaintiffs named in its motion for summary judgment could not have been exposed to and injured by its product. The trial court, by orders dated April 11,1984 and April 13, 1984, granted partial or complete summary judgment in favor of the moving defendants as follows:
1) In favor of
Rexall Drug Company
Ulmer Pharmacal Company
Sandoz, Inc.
Dorsey Laboratories
The Wander Company
Smith-Dorsey Sterling Drug Company
Adria Laboratories
against all plaintiffs. (Appeal docketed at No. 590 Pittsburgh, 1984).
2) In favor of
Burroughs Wellcome Company
Premo Pharmaceutical Laboratories, Inc.
William Rorer, Inc.
Abbott Laboratories
Upjohn Company
Kremers-Urban Company
Armour Pharmaceutical Co.
Revlon, Inc.
Carnrich Laboratories
*272 Cole Pharmacal Company
Amfre-Grant, Inc.
Merck & Company
Merck, Sharp & Dohme
and against Donna and Miron Giordano and Nancy and Richard Stark. (Appeal docketed at No. 591 Pittsburgh, 1984).
3) In favor of
Merrell-Dow Pharmaceuticals
Richardson-Merrell, Inc.
William S. Merrell Company
The National Drug Company
Burroughs Wellcome Company
Armour Pharmaceutical Co.
Revlon, Inc.
and against Linda and Spencer Burnside and Carol Janoss. (Appeal docketed at No. 592 Pittsburgh, 1984).
4) In favor of
Physicians and Hospitals Supply Company
against all plaintiffs (Appeal docketed at No. 593 Pittsburgh, 1984).
5) In favor of
Warren-Teed Pharmaceuticals, Inc.
against all plaintiffs (Appeal docketed at No. 589 Pittsburgh, 1984).
The Court also entered summary judgment against Ann and Michael Lynch in favor of twenty-eight of the forty named defendants on the ground that the Lynchs’ action was barred by the statute of limitations.
I.
The trial court explained that summary judgments had been granted because undisputed affidavits, together with other discovery documents, had shown that the companies excused from the action could not have manufactured the DES causally ingested. Appellants do not dispute the facts on which the trial court based its orders. Their sole contention on appeal is that summary judgment was improper
(1) Civil Conspiracy;
(2) Concerted Action under Section 876 of the Restatement (Second) of Torts; and
(3) Enterprise Liability.1
The trial court rejected these theories because appellants had not alleged facts sufficient to support causes of action. The court further determined that such theories would be of no avail to appellants because the manufacturers in whose favor summary judgment was being entered could not have caused appellants’ injuries. Appellants, although conceding that the products of these manufacturers did not directly cause the injuries of which they complain, argue nevertheless that industry-wide liability is a viable theory of recovery.
It is by now axiomatic that a motion for summary judgment may only be granted where there is no genuine issue
An essential element of any cause of action in tort is that there must be some reasonable connection between the act or omission of the defendant and the injury suffered by the plaintiff. Prosser and Keeton, Torts § 41, at 262 (5th ed. 1984); Annot., “Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Products Alleged to Have Caused Injury”, 51 A.L.R.3d 1344, 1349 (1973). Negligent conduct is not a ground for recovery unless it is a substantial factor in bringing about the plaintiffs injury. Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978); Heck v. Beryllium, 424 Pa. 140, 144, 226 A.2d 87, 90 (1966); Cuthbert v. City of Philadelphia, 417 Pa. 610, 614, 209 A.2d 261, 263 (1965); Harrison v. City of Pittsburgh, 353 Pa. 22, 24, 44 A.2d 273, 275 (1945); Ostrowski v. Crawford Door Sales Co. of Scranton, Pa., 207 Pa.Super. 424, 431, 217 A.2d 758, 762 (1966).
A majority of those courts which have considered DES claims have held that a cause of action does not exist unless the plaintiff can identify the manufacturer of the pills which caused injury. Martin v. Abbott Laboratories, 102 Wash.2d 581, 590, 689 P.2d 368, 375 (1984). See, e.g., Morton v. Abbott Laboratories, 538 F.Supp. 593 (M.D.Fla. 1982); Pipon v. Burroughs-Wellcome Co., 532 F.Supp. 637
The gravamen of the plaintiffs’ arguments under each theory of industry-wide liability is that the “[defendants are individually and/or jointly liable to Plaintiffs for their failure to exercise due care and reasonable care in marketing and promoting DES to prevent miscarriages between 1947 and 1971 without warnings of its experimental nature, without testing, when Defendant knew or should have known of its harmful effects.” Appellants’ Complaint, Paragraph 31 (emphasis added). Several of the defendants, however, clearly exculpated themselves from appellants’ basic contention. The following pharmaceutical companies have shown that they did not at any relevant time market
A complaint must, at a minimum, set forth the facts upon which a cause of action is based. Cianfrani v. Commonwealth, 505 Pa. 294, 304 n. 5, 479 A.2d 468, 473 n. 5 (1984). However, it is not necessary that a plaintiff identify the specific legal theory underlying the complaint. Weiss v. Equibank, 313 Pa.Super. 446, 453, 460 A.2d 271, 275 (1983). It is the duty of the court to discover from the facts alleged in a complaint the cause of action, if any, stated therein. Bartanus v. Lis, 332 Pa.Super. 48, 57, 480 A.2d 1178, 1182 (1984). A complaint must not only give notice to the defendant of the claim being asserted but it must summarize the facts essential to support the claim. Cianfrani v. Commonwealth, supra 505 Pa. at 304 n. 5, 479 A.2d at 473 n. 5; Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 298, 464 A.2d 1349, 1352 (1983); Weiss v. Equibank, supra 313 Pa.Super. at 453, 460 A.2d at 274-275. A plaintiff cannot escape this duty by a general averment that the facts are in the possession of the defendant. 2 Goodrich-Amram 2d § 1019:1 (1976).
Examination of the complaints and discovery proceedings now before this Court fails to disclose facts sufficient to sustain causes of action based upon (1) an industry-wide conspiracy; (2) concerted industry action; or (3) enterprise liability. We will examine more closely each of these theories advanced on appeal by the plaintiff-appellants.
A. Civil Conspiracy
To state a cause of action for civil conspiracy under Pennsylvania law, a complaint must allege the existence of all elements necessary to such a cause of action. Baker v. Rangos, 229 Pa.Super. 333, 351, 324 A.2d 498, 506 (1974). A cause of action for conspiracy requires that two or more persons combine or enter an agreement to commit an un
Our research discloses two DES cases in which the theory of civil conspiracy was alleged. See: Ryan v. Eli Lilly & Co., supra; Collins v. Eli Lilly & Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984), cert. denied sub nom., E.R. Squibb & Sons, Inc. v. Collins, — U.S. —, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984). It was rejected in both cases.
Applying the law of South Carolina, which is similar to the law in Pennsylvania, the United States District Court in Ryan v. Eli Lilly & Co., supra, held that in order to state and prove a cause of action for civil conspiracy, the plaintiffs were required to allege and prove that the defendant had entered into an unlawful agreement for the express purpose of committing either a criminal act or an intentional tort. Negligence, the court held, was insufficient. After reviewing the elements of civil conspiracy under South Carolina law, the court concluded that the plaintiff, as a matter of law, could not make out a cause of action for civil conspiracy.
Plaintiff has shown no meetings, no conferences, no telephone calls, no joint filings, no cooperation, no consolidation, no licensing — nothing that any two companies did together. Each company had its own distinct FDA filings, package literature, warnings, indications, manufacturing processes, trade names, and marketing practices. Here, as in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132 (1980), no evidence supports plaintiffs allegations of common efforts or concert*279 ed, conspiratorial action. In fact, all of the evidence proves that no defendant entered into any agreement or even cooperated with any other drug company in the licensing, manufacturing, marketing, or promotion of Stilbestrol [DES] for the use that plaintiff claims produced her injuries. On this state of the facts, summary judgment shall be entered, dismissing plaintiffs conspiracy claims.
Id. at 1014.
Similarly, the Supreme Court of Wisconsin held that conspiracy allegations of a DES daughter in Collins v. Eli Lilly & Co., supra, were inadequate to state a cause of action where the plaintiff had asserted “that the defendant drug companies formed and operated a conspiracy to gain FDA approval of DES in 1941 and carried the conspiracy into seeking FDA approval in 1947 and 1948 for use of DES in problem pregnancies.” Id. at 187, 342 N.W.2d at 47. The plaintiff had alleged further that “the drug companies used the fruits of their conspiracy, i.e., FDA approval to produce and market DES for pregnancy, to misrepresent to the public at large, including the plaintiffs mother, that DES was safe and efficacious.” Id. The Wisconsin court observed that although the plaintiff had pleaded parallel conduct by drug companies in 1941, such behavior alone was insufficient to establish a conspiracy. Id. at 188, 342 N.W.2d at 48. There was no averment that defendants had “either explicitly or tacitly collaborated to gain FDA approval so that they could in turn collaborate to misrepresent the safety and efficacy of DES for use in preventing miscarriages.” Id. The court rejected the argument of civil conspiracy, observing that many drug companies had entered the DES market long after FDA approval and should not be charged with participation in and knowledge of prior activity by pharmaceutical companies. Id.
Both Ryan and Collins are apposite to the instant case. The plaintiffs, in their complaint, alleged the following facts:
*280 Twenty-ninth: From 1947 through 1941 [sic] each of the Defendants, individually and in concert with each other, manufactured and marketed DES under various names but in an identical, generic formula, sold to the public, as a prescription drug to prevent miscarriages. Although defendants knew or should have known of the potential carcinogenic effects of DES, and its experimental status as a preventative for miscarriage, Defendants manufactured and marketed it without testing for teratogenic and carcinogenic effects; without warning for such potential effects, and without notice of the Food and Drug Administration’s approval for only experimental use in prevention of miscarriage.
The defendants conduct, they alleged, was “wrongful, reckless, careless, negligent and grossly negligent.” Appellants’ Complaint, Paragraph 32. The plaintiffs, however, have failed to aver those facts which are necessary to state a cause of action for conspiracy.
Like the DES daughters in Ryan and Collins, the plaintiffs in the instant case have failed to allege the manner in which a conspiratorial scheme was devised and carried out. The complaint contains no averments of meetings, conferences, telephone calls, joint filings, cooperation, consolidation, or joint licensing. The plaintiffs have alleged no more than a contemporaneous and negligent failure to act. This was insufficient to state either a conspiratorial agreement or the requisite intent to cause injury. Similarly, the completed discovery fails to demonstrate facts necessary to a cause of action for conspiracy. The trial court correctly held, therefore, that the appellees were not liable to the plaintiffs on a theory of civil conspiracy.
B. Concerted Action
The theory of concerted action is to be found in § 876 of the Restatement (Second) of Torts. That Section provides as follows:
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
*281 (a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
A cause of action for concerted activity under Section 876 of the Restatement (Second) of Torts has been recognized only recently by the courts in Pennsylvania. In Kline v. Ball, 306 Pa.Super. 284, 452 A.2d 727 (1982), a panel of this Court observed that in some situations Section 876 “might well prove applicable.” Id., 306 Pa.Superior Ct. at 287, 452 A.2d at 728. The Court held, however, that Section 876 did not apply to the facts of that case. The plaintiff in Kline had been injured when struck by a falling trash can which had been pushed from a school balcony by one of a group of boys. The plaintiff attempted to place liability also on the bystanders. However, he could not show that any one party or all of the bystanders had participated in encouraging the act. The Court refused to validate the plaintiff’s concerted action theory because the plaintiff had been unable to establish who among the bystanders had initiated the prank. The Court stated:
Tort liability must be founded upon some blameworthy conduct, or lack of due care resulting in the violation of a duty owing to others.
In Pennsylvania, the principle of liability without fault for injuries to the person has received scant consideration. The great body of our law of liability for personal injuries is that of liability through fault; liability based almost exclusively on wrongful conduct. Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 8 A.2d 302, 305 (1939).
A similar result was obtained in a products liability dispute in Cummins v. Firestone Tire & Rubber Co., supra. The plaintiff in Cummins alleged that he had been injured when a multipiece tire and rim assembly exploded as it was being inflated. However, he was not able to identify either the offending product or the manufacturer of the tire and rim assembly which had caused his injury. He argued that a cause of action for concerted activity could be maintained against any manufacturer without regard to direct identification of that particular defendant as the manufacturer of the injury-producing product. The Court said:
Appellant’s assertion cannot prevail. In order for this cause of action to be viable, there must be acts of a tortious character pursuant to a common design or plan. RESTATEMENT (SECOND) OF TORTS § 876 comment (b) (1977). In the alternative, a defendant must render substantial assistance to another to accomplish a tortious act. As specifically stated in comment (d) to § 876(b), “in determining liability, the factors are the same as those used in determining the existence of legal causation when there has been negligence____”
As seen above, appellant cannot establish a prima facie case of negligence against appellee Budd. Moreover, he has failed to aver that Budd has rendered substantial assistance to those manufacturers who have allegedly engaged in concerted tortious conduct.
Finally, this cause of action has not heretofore been recognized in this Commonwealth as a valid basis for imposing liability. In light of appellant’s failure to establish the requisite elements of this count, this case is an improper vehicle for the initial consideration of this cause of action by a court of this Commonwealth. To sustain a concert of action theory in the instant case would render*283 any manufacturer in Pennsylvania liable to any member of the public for the defects of his competitor’s products. Such a result is unconscionable.
Id., 344 Pa.Superior Ct. at 21-22, 495 A.2d at 969-970.
The concern that a manufacturer would become liable for defects in his competitor’s products is shared by an overwhelming majority of jurisdictions which have considered the concerted action theory. These courts have uniformly refused to apply the theory in DES cases. See, e.g., Morton v. Abbott Laboratories, supra; Ryan v. Eli Lilly & Co., supra; Payton v. Abbott Laboratories, 512 F.Supp. 1031 (1981); Sindell v. Abbott Laboratories, supra; Conley v. Boyle Drug Co., 477 So.2d 600 (Fla.Dist.Ct. App., 1985); Namm v. Charles E. Frosst & Co., supra; Ferrigno v. Eli Lilly & Co., 175 N.J.Super. 551, 420 A.2d 1305 (1980); Martin v. Abbott Laboratories, supra; Collins v. Eli Lilly & Co., supra. Contra: Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984), cert. denied sub nom., E.R. Squibb & Sons, Inc. v. Abel, — U.S. —, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984); and Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 436 N.E.2d 182, 450 N.Y.S.2d 776 (1982). We elect to follow the majority. In doing so, we adopt the reasoning set forth in Sindell v. Abbott Laboratories, supra, which is in harmony with Pennsylvania policies articulated in Cummins and Kline.
The gravamen of the charge of concert is that defendants failed to adequately test the drug or to give sufficient warning of its dangers and that they relied upon the tests performed by one another and took advantage of each other’s promotional and marketing techniques. These allegations do not amount to a charge that there was a tacit understanding or a common plan among defendants to fail to conduct adequate tests or give sufficient warnings, and that they substantially aided and encouraged one another in these omissions.
What the complaint appears to charge is defendants’ parallel or imitative conduct in that they relied upon each*284 other’s testing and promotion methods. But such conduct describes a common practice in industry: a producer avails himself of the experiences and methods of others making the same or similar products. Application of the concept of concert of action to the situation would expand the doctrine far beyond its intended scope and would render virtually any manufacturer liable for the defective products of an entire industry, even if it could be demonstrated that the product which caused the injury was not made by the defendant.
Sindell v. Abbott Laboratories, supra 26 Cal.3d at 605, 607 P.2d at 932-933, 163 Cal.Rptr. at 141. To allow the plaintiffs to proceed on such a cause of action on the facts here shown would produce the inequitable result of exposing to liability those manufacturers who have already demonstrated that their products were not the cause of the plaintiffs’ injuries. We conclude, therefore, that the law of this Commonwealth forecloses the .assertion of a cause of action for concerted action where the plaintiff is unable to isolate a particular manufacturer as a causative agent of his injuries.
The plaintiffs in this case, as in Sindell, rely upon averments that the defendant manufacturers failed to test DES adequately and failed to give adequate warning of the risks inherent in its use as a miscarriage deterrent. Plaintiffs have not alleged either a tacit understanding or common design to market a defective product or that appellees rendered substantial assistance in causing injury to the plaintiffs. They have charged the defendants merely with “parallel and imitative” conduct. Moreover, the completed discovery does not support a cause of action for concerted activity. To sustain a cause of action for concerted tortious conduct under these circumstances would be to expand the doctrine of Section 876 of the Restatement beyond its intended scope and would render each manufacturer liable for the defective products of an entire industry even where it was shown that the product causing the injury had not been made or marketed by the defendant.
Enterprise liability exists where (1) the injury-causing product was manufactured by one of a small number of defendants in an industry; (2) the defendants had joint knowledge of the risks inherent in the product and possessed a joint capacity to reduce those risks; and (3) each of them failed to take steps to reduce the risk but, rather, delegated this responsibility to a trade association. This concept was articulated in Hall v. E.I. DuPont De Nemours Co., 345 F.Supp. 353 (E.D.N.Y.1972). See also: Conley v. Boyle Drug Co., supra. In Hall, the plaintiffs were thirteen children who had sustained injuries in separate incidents as a result of exploding blasting caps. Although they could not identify the particular manufacturers responsible for their individual injuries, the plaintiffs commenced an action against six blasting cap producers which comprised virtually the entire industry in the United States. There was evidence that these defendants had adhered to an industry-wide standard regarding safety features of blasting caps, and that they had delegated the responsibility for investigating safer product designs to their trade association. The court concluded that under these limited facts, the plaintiffs had sufficiently stated a cause of action. The defendants’ joint knowledge of the risks inherent in their product and a shared capacity to reduce those risks imposed upon them a duty to act, for the failure of which they could be made liable. The court cautioned: “[w]hat would be fair and feasible with regard to an industry of five or ten producers might be manifestly unreasonable if applied to a decentralized industry composed of thousands of small producers.” Id. at 378.
For this very reason the theory of enterprise liability has uniformly been rejected by courts considering DES related injuries. See, e.g., Morton v. Abbott Laboratories, supra; Ryan v. Eli Lilly & Co., supra; Sindell v. Abbott Laboratories, supra; Conley v. Boyle Drug Co., supra; Namm v. Charles E. Frosst & Co., supra; Martin v. Abbott Laboratories, supra; Collins v. Eli Lilly & Co.,
Our rejection of the enterprise liability concept is consistent with the law of Pennsylvania. In Cummins v. Firestone Tire & Rubber Co., supra, the court affirmed an order sustaining preliminary objections to a complaint which had purported to aver a theory of enterprise liability based on a bald averment that members of the tire and rim assembly industry had collaborated in the “intentional manufacture, promotion and distribution of a generically similar defective device with the knowledge that a safer device was available.” Id. 344 Pa.Super. at 23, 495 A.2d at 970. As in the instant case, the plaintiff in Cummins failed to establish that the named defendants constituted virtually the entire tire and rim assembly industry, and that the defendants had delegated safety functions to a trade association. Id. In addition to finding the complaint insufficient, the
D. Market Share Alternate Liability
After the trial court had entered the summary judgments from which the instant appeals were taken, the Supreme Court of Washington articulated a completely new concept for allowing recovery in DES cases. See: Martin v. Abbott Laboratories, supra. This theory has not been adopted by the courts of Pennsylvania. We consider it here to determine whether the facts in this case would support such a cause of action. Because the facts alleged and shown during discovery are insufficient to sustain a cause of action as stated by the Washington court, we find it unnecessary to decide whether such a theory should be adopted in Pennsylvania.
In order to state a cause of action for market share alternate liability, according to the Supreme Court of Washington, a DES plaintiff must allege the following elements:
... the plaintiff need not prove that a defendant produced or marketed the precise DES taken by the plaintiff’s mother. Rather, the plaintiff need only establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., dosage, color, shape, markings, size or other identifiable characteristics) of DES taken by the plaintiffs mother; the plaintiff need not allege or prove any facts related to the time or geographic distribution of the subject DES.
Id. (emphasis added). After the plaintiff has made out a prima facie case, the burden will then shift to the defendants to establish their freedom from liability.
Individual defendants are entitled to exculpate themselves from liability by establishing, by a preponderance of the evidence, that they did not produce or market the particular type [of] DES taken by the plaintiff’s mother; that they did not market the DES in the geographic area of the plaintiff mother’s obtaining the drug; or that it did not distribute DES in the time period of plaintiff mother’s ingestion of the drug.
Id.
In the instant case, the defendants, in whose favor summary judgments were entered, established during discovery that they could not be held liable on this theory. They exculpated themselves by facts which appellants accept without dispute. Several defendants showed that they had never manufactured or marketed DES as a miscarriage preventative. Others demonstrated that they had not manufactured DES during the period in which plaintiffs’ mothers used the drug. Still others showed that they had never
II.
The judgment entered in favor of Warren-Teed Pharmaceuticals, Inc. was based on the fact that it had been a successor corporation to Warren-Teed Products Company and had not existed when its predecessor manufactured and sold DES in Pennsylvania. Appellants argue that liability of Warren-Teed Pharmaceuticals, Inc. can be found to exist by application of the “product line exception” to the general rule that a successor corporation is not liable for its predecessor’s acts.
“The general rule is that when one company sells or transfers all of its assets to a successor company, the successor does not acquire the liabilities of the transferor corporation merely because of its succession to the transfer- or’s assets.” Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 18, 434 A.2d 106, 107 (1981). See also: Husak v. Berkel Inc., 234 Pa.Super. 452, 456, 341 A.2d 174, 176 (1975). To this general rule this Court, in Dawejko v. Jorgensen Steel Co., supra, adopted the “product line exception” as articulated by the Supreme Court of New Jersey in Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981):
[W]here one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for*290 injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor.
Id. at 358, 431 A.2d at 825 (emphasis added). See: Dawejko v. Jorgensen Steel Co., supra 290 Pa.Super. at 23, 434 A.2d at 110-111. See also: Amader v. Pittsburgh Corning Corp., 546 F.Supp. 1033, 1036 (E.D.Pa.1982).
Warren-Teed Pharmaceuticals, Inc. was organized in 1963 as a wholly owned subsidiary of Rohm and Haas Company. It acquired the assets of Warren-Teed Products Company, which had existed as an independent corporate entity prior to July 19, 1963. The Corporate Secretary of Rohm and Haas Company demonstrated by affidavit that Warren-Teed Pharmaceuticals, Inc. had never manufactured, promoted or marketed DES at any time in its history. Appellants have not challenged this fact. Indeed, the record suggests an absence of any dispute that Warren-Teed Pharmaceuticals, Inc. has not “undertaken essentially the same manufacturing operation” as its predecessor, Warren-Teed Products Company. The new corporation did not continue to manufacture or distribute DES as its predecessor allegedly had done. Since plaintiffs’ mothers and Mrs. Stark all had discontinued usage of DES long before 1963, and since Warren-Teed Pharmaceuticals, Inc. did not continue the allegedly defective product line maintained by its predecessor, Warren-Teed Pharmaceuticals, Inc. cannot be liable for the injuries of any appellant. The product line exception does not apply.
III.
The summary judgment entered in favor of all defendant-manufacturers of DES and dismissing the claims of Ann S. Lynch and Michael P. Lynch was premised upon a two year statute of limitations applicable to causes of action for personal injuries. See: 42 Pa.C.S. § 5524.
Pennsylvania courts, in an effort to ameliorate the sometimes harsh effect of the statute of limitations have adopted what has come to be known as the “discovery rule.” See: Anthony v. Koppers Co., 284 Pa.Super. 81, 425 A.2d 428, rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). “Where this rule is applied, the statute of limitations will not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury.” Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135-136, 471 A.2d 493, 500 (1984). See also: Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 438, 471 A.2d 1233, 1236 (1984). “[T]he statute of limitations begins to run in ‘creeping disease’ cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Cathcart v. Keene Industrial Insulation, supra 324 Pa.Super. at 136-137, 471 A.2d at 500 (footnote omitted).
What is or is not reasonable diligence under the circumstances of a particular case requires an evaluation of the plaintiffs’ actions to determine whether he or she exhibited “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.” Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982), quoting Restatement (Second) of Torts § 283, comment b. “The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. It is a community standard. It is sufficiently flexible, however, to take into account differencefs] between persons, their capacity to meet certain situations and the circumstances confronting them at the time in question.” Petri v. Smith, supra, 307 Pa.Superior Ct. at 271-272, 453 A.2d at 347. We evaluate the plaintiff’s conduct in terms of what he should have known at a particular time by following a course of reasonable diligence. If a party has the means of discovery within his power but neglects to use them, his claim will still be barred. De Martino v. Albert Einstein Medical Center N.D., 313 Pa.Super. 492, 508, 460 A.2d 295, 303 (1983). However, where the issue involves a factual determination regarding what is a reasonable period of time for a plaintiff to discover his injury and its cause, the determination is for the jury. Cf. Smith v. Bell Telephone Co., 397 Pa. 134, 142, 153 A.2d 477, 481 (1959). Only where the facts are undisputed and lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable may the question be decided as a matter of law on summary judgment. Anthony v. Koppers Co., supra 284 Pa.Super. at 110-111, 425 A.2d at 443.
In August, 1979, Ann Lynch was told by Dr. Thomas Allen, an obstetrician-gynecologist, that she had a cervical stenosis. This condition manifested itself in a tightness of
Three months later, in February, 1980, Ms. Lynch watched a local television show which contained a discussion of DES related health problems. One problem named was the occurrence of abnormal skin growths. The television program referred persons with questions about DES to local health clinics. Recalling the polyp which she had had removed six years earlier, Ms. Lynch contacted the Pittsburgh Free Clinic, one of the health centers recommended by the program. She talked with Paul Puntari, a medical social worker, who suggested to her that her problem might well have been DES related. He advised her to
The trial court held as a matter of law that Ms. Lynch knew, or reasonably should have known by September or November of 1979, more than two years prior to the initiation of her action on January 19, 1982, that her abnormalities were DES related. Appellants argue, however, that Ms. Lynch reasonably could not have known that a causal connection existed prior to February of 1980. Only after viewing the television program and consulting with Puntari, Ms. Lynch contends, did she become aware that her condition might be DES related. We agree.
Undoubtedly, the plaintiff was aware of her physical abnormalities prior to September, 1979. It is not clear, however, that she knew or had reason to know that they had been caused by the DES which had been ingested by her mother. Two physicians had told her that neither the polyp nor the cervical stenosis had been caused by the DES. Under these circumstances, the application of the statute of limitations was for the jury. Whether the plaintiff acted reasonably when she decided to forego immediate, additional investigation or professional consultation after having been reassured in November, 1979 that her condition was not DES related was an issue of fact.
The appellee drug companies argue that summary judgment was supported by the decision of the Court of Appeals for the Third Circuit in O ’Brien v. Eli Lilly & Co., 668 F.2d 704 (3d Cir.1981). There, the Court, applying Pennsylvania
These facts are readily distinguishable from the facts of the instant case. The missing information as to the cause of Ann Lynch’s condition could not have been acquired by a telephone call. Appellant already knew that her mother had taken DES. The hiatus in Ms. Lynch’s knowledge was created by opinions of two physicians who told her that her medical problems were not related to the ingestion of DES by her mother. Ms. O’Brien’s doctor, by contrast, had informed her that her injuries possibly were linked to DES.
The factual circumstances in Barshady v. Schlosser, 226 Pa.Super. 260, 313 A.2d 296 (1973) are analagous to the facts in the instant case. In April of 1961, Barshady underwent surgery to cure a disease of her middle ear. Immediately after the operation, she complained of pain and numbness in various parts of her face. The defendant-surgeon assured her that the pain was caused by an emotional reaction to the surgery, and that it was only temporary. She continued to obtain treatment from the defendant-physician for several years. During this time, the defendant reassured her that the pain was temporary. He did so as late as March of 1963, nearly two years after the operation had taken place. When the symptoms failed to subside, the plaintiff consulted another physician. He informed her that
In an opinion in support of reversal, Judge Hoffman articulated the discovery rule and concluded that the plaintiffs delay in bringing suit had not been unreasonable in light of the circumstances:
The appellant confronted her surgeon with her symptoms and ailments immediately after the operation. Having absolute confidence in the judgment of her physician, as is the case in many physician-patient relationships, she believed the appellee’s statement that the pain was an emotional reaction to surgery and the numbness would be temporary. So confident was she, that despite the ongoing nature of her symptoms appellant continued her treatments with the appellee until March, 1963. We believe that appellant’s delay in seeking other medical advice was a reasonable one, prompted by her faith in her physician.
During the two years following surgery, the appellant who had been under the continuous treatment of the appellee could not reasonably have been expected to ascertain the cause of her symptomology. Instead, she could only conclude, based on the appellee’s assurances, that her maladies were temporary and would disappear with time.
While the appellant was symptomatic since 1961, and while physical examination would have determined the extent of injury as early as 1961, to compute the running of the statute of limitations from that date simply is not the law. Because of appellant’s reasonable reliance on appellee’s representations, we conclude that the statute was tolled until March, 1963, at which time appellant was first able to ascertain the cause of her injury. Ayers v.*297 Morgan, supra. In our opinion that was the crucial factor. Logic and judicial fairness compel no other result.
Barshady v. Schlosser, supra, 226 Pa.Superior Ct. at 264-265, 313 A.2d at 298, 299. We adopt this reasoning and apply it to the facts of the instant case.
It cannot be said as a matter of law that Lynch’s acceptance of the opinions of two trusted physicians was unreasonable. In the face of these expert opinions, she could not be expected to know, or so a jury could find, that her physical difficulties were related to the DES which had been ingested by her mother. See also: De Martino v. Albert Einstein Medical Center, N.D., supra 313 Pa.Super. at 504, 460 A.2d at 301. Cf. Petri v. Smith, supra (in medical malpractice action, held that plaintiff was not unreasonable in failing to seek cause of her newborn son’s retardation where her physicians had informed her that “these things happen” and that it was a one time thing that probably would never happen again). We conclude, therefore, that it was error to hold as a matter of law that the Lynch claim was barred by the statute of limitations.
The orders granting summary judgments and appealed from at Nos. 589, 590, 591, 592, 593 Pittsburgh, 1984 are affirmed. The order granting summary judgment against Ann Lynch and Michael Lynch and in favor of all remaining defendants (appeal docketed at No. 594 Pittsburgh, 1984) is reversed, and that claim is remanded for further proceedings not inconsistent with this opinion. Jurisdiction is not retained.
. Appellants also argued to the trial court that summary judgment should not have been granted because issues of fact remained as to appellees' liability under Section 433B(3) of the Restatement (Second) of Torts. However, appellants have abandoned this argument on appeal and rely exclusively upon the other three theories of liability.
The theory of alternative liability nevertheless would not have benefitted the plaintiffs under the facts of this case. Although one Pennsylvania court has accepted the theory of alternative liability in a DES case, it indicated that such liability cannot attach where the defendant-manufacturers have exculpated themselves. See: Erlich v. Abbott Laboratories, 5 Phila. 249, 255 (1981). In Erlich, several defendants were dismissed from the action because they demonstrated either (1) that they could not have manufactured the DES ingested by the plaintiff’s mother; or (2) that they did not market DES in Pennsylvania; or (3) that they did not market it until after the relevant time period; or (4) that they did not market DES at all, even though licensed to do so, or (5) that they did not market it in the form of a small white pill in the dosage prescribed for the plaintiffs mother. Id. Instantly, each of the defendants in whose favor summary judgment has been granted has demonstrated one or more of the exculpatory factors delineated in Erlich. Thus, even if the plaintiffs continued to assert the theory of alternative liability, it would not be available to them here. Accord: Ferrigno v. Eli Lilly & Co., 175 N.J.Super. 551, 571, 420 A.2d 1305, 1316 (1980).
. For reasons not here relevant, the trial court did not enter summary judgments relieving all such manufacturers from the claims of all plaintiffs. See court order appearing at pp. 270 and 272, supra.
. We discuss in Part II of this opinion the appellants’ assertion that Warren-Teed Pharmaceuticals is liable as a successor corporation.
. If the claim of Ann Lynch is barred by the statute of limitations, the claim of her husband for loss of consortium is barred as well.
. The Supreme Court’s recent opinion in Pocono International Raceway v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983), effected no change in the application of the "discovery rule” in "creeping disease” cases. See: Powell v. Johns-Manville Corp., 342 Pa.Super. 544, 549, 493 A.2d 724, 727 (1985).