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Court Asked to Extend Deadline on Filing DES Suits

May 09, 1987|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — The state Supreme Court was asked Friday to expand a landmark 1980 decision and further ease the way for cancer victims to pursue lawsuits against makers of the now-banned drug DES.

The lawyer for a Los Angeles woman who claims that she suffered cancer from the drug said victims should be allowed to bring suit up to one year after the ruling, even if that was long after they first suspected harm from DES.

Before the 1980 decision, there was little reason for victims to believe that they could win when they could not identify the drug maker, attorney Patricia J. Van Horn of Palo Alto told the court.

Argue for Limitation

But lawyers defending drug companies said such suits should be limited to those filed within a year after victims first suspected injury from DES. Allowing the 1980 decision to revive outdated suits would breed confusion in the legal system, they said.

"Can defendants who suffered setbacks under previous law also get a second shot?" asked Atty. Robert L. Kaufman of Santa Monica, representing E. R. Squibb & Sons. "If we do this, we open up a can of worms that may never be closed."

The outcome of the dispute heard before the justices could effect many of the approximately 150 DES cases pending in California, attorneys said. Thus far, appellate courts have been divided on where to draw the line on who is entitled to sue.

Diethylstilbestrol, or DES, was an anti-miscarriage "wonder drug" that was taken off the market in 1971 after being linked to cancer in daughters of the women who took the drug. But by that time, millions of women in the nation already had used DES.

Remove Major Obstacle

The court removed a major obstacle to lawsuits over the drug with its 1980 holding in the case of Sindell vs. Abbott Laboratories. The court said that victims who, as in many cases, could not identify the specific maker of the product that affected them could instead sue all major manufacturers of the drug and collect damages based on their share of the market.

The case now before the court centers on how to apply a state statute that requires personal injury suits to be filed within a year after injury occurs or is discovered. At issue is whether an exception should be made to permit suits filed within a year of the 1980 ruling by victims who previously suspected the drug but, because of the state of the law, did not bring a claim.

Under review is a case brought in 1981 by Christine M. Jolly, now a 35-year old social worker, who suffered a malignancy she believes resulted from DES given her mother during pregnancy.

Jolly said she had suspected the drug long before 1980 but thought she had no legal recourse because she could not identify its manufacturer. She said she had not even consulted an attorney until after the 1980 ruling.

Her subsequent lawsuit against a group of manufacturers was dismissed in San Francisco Superior Court on the ground that it was filed more than a year after she suspected DES. But a state Court of Appeal overturned that decision in 1986, saying that Jolly should have a "fair opportunity" to pursue her suit.

'Fairness and Justice'

Van Horn argued Friday that Jolly was not asking the court for an "open-ended, all-encompassing" revision of the statute of limitations on personal injury suits--but merely "fairness and justice" for herself and other DES victims.

Nonetheless, several members of the Supreme Court seemed reluctant to open the prospect of reviving outdated legal claims. "Individuals cannot sleep on their rights," Justice Edward A. Panelli remarked. "The law requires them to take action."

Peter W. Davis of Oakland, representing Eli Lilly & Co., noted that over the years the court had made other major rulings changing the law of personal injury but had not permitted old lawsuits to be revived as a result.

A one-year deadline for suits, starting from the time victims know or should know that they may have grounds to sue, "strikes a balance that is fair to both plaintiffs and defendants," he said.

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