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Wetherill v. Eli Lilly & Co., 89 N.Y. 2d 506(Feb. 11, 1997).





Plaintiff Susan Wetherill began experiencing reproductive difficulties in 1978 or 1979. She suffered four successive miscarriages between 1980 and 1986. In 1988 plaintiff delivered a pre-term baby that did not survive. Plaintiff was diagnosed and treated for a variety of conditions including dysplasia, a misshapen uterus, and an incompetent cervix. Plaintiff first learned of the possibility that her mother may have taken DES during a telephone conversation with her sister in March of 1988. In 1989, after overhearing her doctor refer to her case as exhibiting the "classic symptoms of DES" plaintiff commenced this action for damages against a host of DES Manufacturers, including appellant, Emons Industries, Inc., on August 14, 1992. Defendants moved for summary judgment contending that the action was time barred by N.Y. Civ. Prac. L. & R.§ 214-c(2). N.Y. Civ. Prac. L. & R.§ 214-c(2) provides for a three year statute of limitations period for injuries resulting from exposure to harmful substances, beginning from the date the injury was discovered or should have been discovered with reasonable diligence. The Supreme Court granted Defendants' motion and dismissed the claim, reasoning that plaintiff knew of the physical conditions prior to 1989. The Appellate Division reversed, reasoning that a jury should decide factual questions relating to when plaintiff should have discovered that her injuries were attributable to DES. The Appellate Division also granted Emons Industries leave to appeal on the certified question of whether the Appellate Division's order, reversing the order of the Supreme Court, was properly made.



Whether for purposes of the statute of limitations under N.Y. Civ. Prac. L. & R. § 214-c(2) (McKinney 1990) a plaintiff's injury is discovered upon manifestation of physical symptoms or upon recognition of the connection between the symptoms and the plaintiff's exposure to a toxic substance.


For purposes of N.Y. Civ. Prac. L. & R. § 214-c(2), an injury is "discovered" and the statute of limitations begins to run, when the injured party manifests symptoms of the primary condition upon which a claim is based.


Cases Cited by the Court

Other Sources Cited by the Court

Sources Cited by the Dissent



State of the Law Before Wetherill.

In 1986 New York enacted N.Y. Civ. Prac. L. & R.§ 214-c(2), New York's toxic tort remedial Statue of Limitations. The legislation provides:
Notwithstanding the provisions of 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within the property must be commenced shall be computed from the date of the discovery of the injury by the plaintiff or from the date when a through the exercise of reasonable diligence, such injury should have been discovered by the plaintiff, whichever is earlier.
N.Y. Civ. Prac. L. & R. ]§ 214-c (McKinney 1990).

In DiMarco v. Hudson Valley Blood Serv's the Appellate Division interpreted N.Y. Civ. Prac. L. & R.§ 214-c(2) to include "contaminated blood" as a "substance" within the meaning of the statute. 147 A.D.2d 156 (N.Y. App. Div. 1989). The court determined the beginning of the limitations period to be the date that the plaintiff discovered he had been infected with Acquired Immune Deficiency Syndrome (AIDS), and reinstated the plaintiff's cause of action. Id. at 162.

Subsequently, the Court of Appeals in Jensen v. General Elec. Co., a case involving compensatory relief due to hazardous waste contamination to the plaintiff's property, held that the language of N.Y. Civ. Prac. L. & R. § 214-c(2) required that a plaintiff seek relief within three years of discovery of the "injury." The court rejected the plaintiff's contention that the statute coexisted with the common law rule of continuous injury to allow for claims to be filed beyond the three year period so long as the injury was continuing. Id. at 87. The court reasoned that "determining when limitations begin to run requires a balancing of policy considerations . . . . On one side of the scale are the interests of the injured parties . . . conversely the defendants are entitled to a fair opportunity to defend claims against them before their opportunity to do so has deteriorated . . . ." Id. (citing Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 435 (N.Y. 1992)).

The court described the legislative intent of the enactment of N.Y. Civ. Prac. L. & R. § 214-c(2) as remedying:

a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having opportunity to present their case in court . . [N.Y. Civ. Prac. L. & R.§ 214-c(2)] repeals th[e] archaic rule [that commenced the limitations period on the date the exposure occurred] and replaces it with a fair and simple rule which permits a person to discover his or her injuries before the statutory time period for suit begins to run.
Id. at 84.

The court stated that the statute provides enhanced protections for plaintiffs by allowing them, if they act within the three year period, to recover for all injuries regardless of the lapse of the time between exposure and discovery. Id. at 88. The court rejected any exception to the coverage of N.Y. Civ. Prac. L. & R.§ 214-c(2) for claims based in common law and stated that "there would be no Statute of Limitations, and never any repose even against parties who choose to sit interminably on known rights before bringing suit. The Legislature could not have intended or effected such a substantial, self-defeating and self-contradictory exercise that functionally excises the three year period." Id. at 89.

The Appellate Division in Scherrer v. Time Equities, Inc., 218 A.D.2d 116 (N.Y. App. Div. 1st Dept. 1995) and the Federal District Court for the Eastern District of New York in Braune v. Abbott Lab., 895 F. Supp. 530 (E.D.N.Y. 1995) both interpreted N.Y. Civ. Prac. L. & R.§ 214-c(2) to allow a plaintiff to consider the statue of limitations period to begin when the plaintiff knew that the injury resulted from exposure to a foreign substance. In Scherrer, the court held that there remained triable issues of fact as to when the plaintiffs' discovered or in the exercise of reasonable diligence should have discovered latent injuries. Scherrer, 218 A.D.2d at 124. This holding denied defendants summary judgment and required a trial to determine whether N.Y. Civ. Prac. L. & R. § 214-c(2) would toll the statue of limitations to allow the plaintiffs recovery. Id. Similarly in Braune, the federal district court, applying New York law, interpreted N.Y. Civ. Prac. L. & R. § 214-c(2) broadly. The court held that in the context of a products liability action based on the exposure to DES, the statute of limitations does not begin to run until the plaintiff discovers the injury. Braune, 895 F. Supp at 543. The discovery of the "injury" is not only an awareness of a medical problem but also requires that the connection be made that the difficulty resulted from some toxic exposure and not merely natural causes. Id.

Effect of Wetherill on Current Law

The majority holds that a plaintiff must commence an action brought pursuant to N.Y. Civ. Prac. L. & R. § 214-c(2) within three years of the discovery of an injury caused by the latent effects of a toxic substance. The majority determined that the limitations period for N.Y. Civ. Prac. L. & R. § 214-c(2) begins to run upon the discovery of the injury caused by the toxic substance and not upon the discovery of the connection between the toxic substance and the injury. N.Y. Civ. Prac. L. & R. § 214-c(4) extends the limitations period to five years after the discovery of the injury in situations where technical, scientific, or medical knowledge necessary to detect the cause of the injury has not been discovered. N.Y. Civ. Prac. L. & R. § 214-c (McKinney 1990). Since the connection between DES, the alleged cause of plaintiff's injuries, and the type of reproductive injuries complained of by the plaintiff has been known for nearly twenty years, N.Y. Civ. Prac. L. & R. § 214-c(4) does not apply.

Plaintiff argued that for purposes of the statute "discovery of the injury" means not merely the discovery of the symptoms, but also the discovery that those symptoms stem from exposure to a hazardous substance. Plaintiff wanted to draw a distinction between situations "in which only the precise toxic substance that caused the injury is unknown" and those in which the injured party is not even aware that the injury stems from a non-biological cause. If the court allowed the latter construction, Plaintiff's action would not be time barred since it would fall within the three-year period allowed by N.Y. Civ. Prac. L. & R.§ 214-c(2).

The majority finds that the Legislature enacted N.Y. Civ. Prac. L. & R. § 214-c to nullify the effect of a line of cases holding that the limitations period in toxic tort cases begins to run upon exposure to the harmful substance whether or not any symptoms had manifested. The majority holds that the Legislature intended to distinguish between exposure to a toxic substance and the manifestation of the injuries caused by that exposure. Since N.Y. Civ. Prac. L. & R. § 214-c(4) provides for the situation in which the cause of the injury is undiscoverable because of lack of technology, the majority reasons that if the underlying cause is medically or scientifically discoverable, N.Y. Civ. Prac. L. & R. § 214-c(2) applies, and the limitation period starts running upon discovery of the injury. The majority declines to accept Plaintiff's argument and finds that under that interpretation when the limitation period begins to accrue would depend on "fortuitous circumstances" like the plaintiff's medical knowledge and his or her physician's ability to diagnose the problem.


The dissent argues that the Legislature was concerned with an injured person's lack of awareness of the possibility of a link between abnormal physical conditions and a particular harmful substance. The majority's approach no longer allows for the factual inquiry required by N.Y. Civ. Prac. L. & R. § 214-c(2) into the reasonableness and diligence of an injured party's search for the cause of his or her injuries. Once the scientific or medical community has established a link between a substance and a physical condition, the majority's approach imputes that knowledge to the layperson as a matter of law, no matter the number of possible underlying causes.

This decision establishes that a plaintiff has only three years from the discovery of an injury caused by a toxic substance to commence an action, regardless of whether the plaintiff is aware of the connection between the injury and the toxic cause. The dissent notes that this decision draws the focus away from the reasonableness and diligence of the plaintiff's search for the cause of his or her injury. The sole factor in determining the time from which the limitations period begins is the time of discovery of physical symptoms of injury.

If medical science has discovered a connection between a particular substance and a type of injury, then for purposes of N.Y. Civ. Prac. L. & R. § 214-c the limitations period begins to run upon discovery of any physical symptoms possibly caused by that substance. No matter how diligently they search for the underlying cause, injured persons still have only three years from the discovery of their symptoms to commence an action.

Unanswered Questions

The court's decision raises several new issues. The first arises in the scenario where, as here, a patient's physician correctly attributes a condition to external, non-biological sources but fails to identify the specific known external agent within the time allowed by N.Y. Civ. Prac. L. & R. § 214-c(2). In such a case, the court's ruling would bar the patient from bringing a cause of action against the manufacturer of the external agent. Would the plaintiff then have an action in negligence against the physician who failed to identify the responsible external agent? In other words, could a patient file a claim against the physician in a case such as this where the statute of limitations for medical malpractice has also already run. Medical malpractice statute of limitations is two years under N.Y. Civ. Prac. L. & R. § 214-a (McKinney 1990).

The second issue addresses an ambiguity of N.Y. Civ. Prac. L. & R. § 214-c(4). When has the "toxic etiology" of a given condition or class of conditions become "discovered" for the purposes of § ; 214-c(4), thus extending the time in which a plaintiff may bring an action against the manufacturer? The court suggests that there is an objective standard for when such knowledge is to be imputed to an injured party but fails to articulate any such standard. The court's reliance on the "technical knowledge of the medical and scientific community" does nothing to answer this issue, since medical and scientific progress proceeds erratically, and new "discoveries" are frequently discarded or revised.

Survey of the Law in Other Jurisdictions

The Federal District Court for the Eastern District of Pennsylvania applied Pennsylvania state law in Snyder v. Claridge at Park Place, Inc., 1990 WL 127769 (E.D. Pa. 1990) (unpublished). The court held the plaintiff, who was suing for injury caused by exposure to harmful fumes, to a reasonable person standard in determining when the plaintiff should have realized the connection between the symptoms allegedly caused by the toxic exposure and the defendant's allegedly negligent conduct. Id. at 8. The court found that since the plaintiff had gone to the hospital as a direct result of the symptoms later alleged to have been caused by the defendant's negligent conduct and had been informed during that hospital visit of a heart problem, that a reasonable person should have known the connection between the two. Id. The fact that the plaintiff's doctor did not inform her of the probable connection between the injury and the conduct was, according to the court, not a dispositive factor in this case. Id.

The Federal District Court for the Southern District of West Virginia, applying West Virginia state law, time-barred a plaintiff's products liability claim when it determined that the plaintiff had actual notice of the connection between her symptoms and the drug L-tryptophan when she viewed a NBC Nightly News television report covering an investigation by federal health officials and warning viewers not to use the drug. Sayre v. General Nutrition Corp., 867 F. Supp. 431 (S.D.W. Va. 1994).

In contrast, the Court of Appeals for the state of Ohio refused to grant a summary judgment motion to the defendant, instead holding that the statute of limitations on the plaintiff's products liability cause of action did not begin to run until his doctor had made a firm diagnosis connecting the injury to the defendant's conduct. Venham v. Astrolite Alloys, 596 N.E.2d 585 (Ohio App. 1991). The fact that the plaintiff had been experiencing the symptoms for several years and had read magazine articles informing him of the connection was not enough to keep the plaintiff's cause of action from going to trial. Id.

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