under all the circumstances. Once the plaintiff
actually knows, or with the exercise of reasonable
diligence would have known of some injury, its cause-
in-fact, and some evidence of wrongdoing, then she is
bound to file her cause of action within the applicable
limitations period, measured from the date of her
acquisition of the actual or imputed knowledge.

There is no quarrel on Albers' part as to the satisfaction

of the first two components of the rule. To the contrary, as

Albers Mem. 10 acknowledges:

In 1991, Plaintiff Katherine Albers was diagnosed with
a T-shaped uterus and was told that this uterine
anomaly may have been related to her mother's ingestion
of DES when pregnant with her. Plaintiff does not
contest therefore that she knew more than three years
prior to filing suit that she.was injured as a result
of her in utero DES exposure.

But Katherine disclaims any reason to suspect any wrongful

conduct in that respect (the necessary third component of the

rule), stating in part that she never read any newspaper article

or magazine or viewed or listened to any television or radio show

about DES

That
insulated
discovery
suggested

knowledge

(Katherine's April 3, 2003 affidavit, Albers App. 23).
poses the question whether Katherine is completely
from the application of the third element of the

rule test by her asserted lack of information that
any wrongdoing. In terms. of the absence of any actual

on Katherine's part, this Court is required for Rule 56

purposes to take her word for it, even though it is almost

necessary

for a person to have been marooned on a desert island

{or to belong to some variant of the genus Struthio, sharing the



response. That response was in fact entirely silent (1) as to
the time-barring of Albers' strict liability claims under the
Illinois statute of repose and (2) as to James' inability to
maintain a claim for loss of consortium. In the absence of
anything at all having been submitted on those subjects from
Albers' point of view, those facets of Lilly's motion are also
granted.
Conclusion

There is no genuine issue of material fact as to the
untimeliness of this lawsuit in the sense taught by the District
of Columbia jurisprudence to which this Court must look on that
subject. Lilly is therefore entitled to a judgment as a matter
of law. Lilly's motion is granted on limitations grounds--and
because one strike suffices for this purpose, both Albers!

Complaint and this action are dismissed.

Cello O Sirol

Milton I. Shadur
Senior United States District Judge

Date: April 15, 2003



the District of Columbia, not only.at Bussineau and Diamond but

also at this year's decision in Doe v. Medlantic Healthcare
Group, Inc., 814 A.2d 939 (D.C. App. 2003).° Doe, id. at 945
does repeat the proposition that “when accrual actually occurred
in a particular case is a question of fact for the factfinder.”
But it does so in the context that the fact-bound inquiry
typically looks at situations in which there are disputed factual
issues, such as whether a defendant engaged in misrepresentations
(and the nature of such claimed misrepresentations), as well as
the reasonableness of a plaintiff's reliance on defendant's
conduct and misrepresentations (id.). And Doe, id. expressly
recognizes that “summary judgment on the issue of when accrual

. occurred may be granted in cases when there is no disputed. issue
of fact” (c£. also Jacobsen v. Oliver, 201 F.Supp.2d 93, 109-11
{(D. D.C. 2002)). As Doe, id. (emphasis added in part) has

restated the test set out in Bussineau and Diamond:

When the discovery rule applies, a cause of action
accrues when the claimant knows or by the exercise of
reasonable diligence should know of (1) the injury, (2)
its cause in fact, and (3) some evidence of wrongdoing.

5 Albers' attorneys have cited to the decision in Dawson v.
Eli Lilly & Co., 543 F.Supp. 1330 (D. D.C. 1982), in which he was
also counsel for plaintiffs (it is clear that counsel Aaron
Levine has pretty much made a career out of lawsuits involving
DES-occasioned claims). But Judge Joyce Hens Green's rejection
of summary judgment on statute of limitations grounds in Dawson
is two decades old, and the massive’ and highly publicized
developments that have taken place in the field in the interim
render that case's analysis of the due diligence issue very much
out of date (to make a bad pun, time-barred?) .

6



ostrich's proverbial head-in-the-sand proclivities) to have been
truly unaware of such an open and notorious fact as the many
claims of wrongdoing that have been (and continue to be) publicly
associated with DES.?

Those claims have manifested themselves in the filing of
thousands of cases over the years,,importantly including one that
produced a highly publicized multimillion dollar jury verdict
(over $42 million awarded to 11 woman plaintiffs) some three
years after Katherine had learned of her problem in 1991,‘ as
well as the clear indications of DES causation and of wrongdoing
on the part of Lilly and other drug manufacturers that were
invariably attached to those claims. Lilly has assembled at its
summary judgment Mem. 13-15, and this Court has attached to this
opinion, examples of the all-pervasive publicity as to DES, its
problems and those of the drug manufacturers, including several
highly publicized instances well after Katherine knew of her
problem and had every reason to be alerted to any discussion of
DES-related difficulties.

This Court has looked carefully at the operative caselaw in

> It is worth noting that Katherine is a college graduate,
having obtained a bachelor's degree in business (including a
course in business law) in 1977.

* Lilly refers to the coverage of that award in both the
Chicago Tribune and the Chicago Sun Times at a time when the
Albers were still living in Evanston, as well as to a Sun Times
article during the same time frame cautioning women about DES-~
caused problems.



are identical (Anderson v. Liberty Lobb’ Inc., 477 U.S. 242, 248
(1986)). And what has been said here comports fully with the
properly understood District of Columbia caselaw.

Here this Court must treat it as undisputed for Rule 56
purposes--because it is required to accept Katherine's assertion
notwithstanding any possible doubts on the subject-~that she had
no actual knowledge of possible fault associated with the DES
ingested by her mother. But there is also no disputed issue of
fact as to the matters adduced by Lilly. From the totality of
those undisputed facts, this Court concludes that the exercise of
reasonable diligence on Katherine's part required her to inquire
long before 1999--which was fully eight years after she learned
about her malformed uterus, about the fact that DES caused such a
condition and about the tragic impact on her child-bearing
ability--into matters that would unquestionably have afforded her
actual knowledge of the third component of the discovery rule (as
well as of the first two components) considerably more than three
years before she filed suit. No more than a review of the
quotations from Davis and the other cases referred to here is
needed. And that being the case, Lilly's Rule 56 motion based on
the untimeliness of this lawsuit is granted.

Just a few words should perhaps be said about the disparity,
referred to in n.2, between Lilly's six asserted grounds for

dismissal and Albers' having addressed just four grounds in their



J

b &
Minute Onder Forn (06/97)

United States District Court, Northern District of INinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Milton I. Shadur than Assigned Judge

CASE NUMBER 02 C 884 DATE 4/15/2003
CASE Katherine Albers, James Albers vs. Eli Lilly & Co.
TITLE ;
[In the Following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briey the nature

MOTION: of the motion being presented.)

DOCKET ENTRY: . _

(1) oO Filed motion of [ use listing in “Motion” box aboye.]

(2) Oo Brief in support of motion due

@) Qo Answer brief to motion due. . Reply to answer brief due

(4) a Ruling/Hearing on set for at

(5) Qo Status hearing{[held/continued to] (set for/re-set for] on set for at

(6) oO Pretrial conference{held/continued to} (set for/re-set for] on set for _ at .

(7) a Trial{set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) ClLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

(10) +i {Other docket entry} Enter Memorandum Opinion and Order. There is no genuine issue of material
fact as to the untimeliness of this lawsuit in the sense taught by the District of Columbia jurisprudence
to which this Court must look on that subject. Lilly is therefore entitled to a judgment as a matter of law.
Lilly’s motion is granted on limitations grounds - - and because one strike suffices for this purpose, both
Albers’ Complaint and this action are dismissed. (14-1)

ad) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

WY | Notices mailed by judge’s staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
SN deputy’s
initials

Lungs Ldtyisia sn
Seah)

Hd St a7 LU

., -Doeuinent
Number.

somber of sotoes

APR 17.2003

4146/2003

abo

date miled poties

SN

Dateftimerreceived-in
central Cletk’s Office

mailing deputy initials



appeals from Lilly and other DES manufacturers in New York market share cases); Women get
$42 million in DES drug case, Chicago Sun-Times, January 9, 1994, at 23 (reporting jury verdict
of $42.3 million for 11 women, eight of whom alleged reproductive problems caused by DES
exposure); $42 million awarded in drug lawsuit, The Chicago Tribune, January 9, 1994, at 16
(same); and History repeats itself... so know your medical background, Chicago Sun-Times,
August 21, 1994, at 51 (cautioning women exposed to DES that they may have infertility
problems). Similarly, by 1981, popular literature reported that “[c]urrently, there are more than

1,000 DES cases as of this writing pending in nearly every state in the country in varjous stages

of litigation.” Orenberg, Cynthia L., DES. The Complete Story (New York: St. Martin’s Press,
1981) at pp. 137, 143.

Beginning in the early 1970s, popular magazines reported extensively regarding
DES and injuries allegedly sustained by women exposed io DES in utero, including such
publications as Time, Ladies Home Journal, Good Housekeeping, Vogue, Glamour, Newsweek,
Mademoiselle, Ms., Family Circle, Harper's Bazaar, Redbook, and McCall's. (See Affidavit of
David W. Brooks, attached as Exhibit P to Lilly’s Statement of Undisputed Material Facts, at
94.) Beginning in the late 1970s continuing through the time that plaintiff believed she was
infertile due to her alleged DES exposure, popular magazines reported regarding allegations that
DES causes reproductive tract malformations, pregnancy difficulties and infertility, including
Reader’s Digest, Parade, McCalls, Good Housekeeping, Cosmopolitan, Newsweek, Woman’s
Day, People Magazine, and Ms. (Id. at | 4.)

Television has also featured numerous news reports and other broadcasts
regarding DES, injuries allegedly caused by DES and litigation involving DES. Such programs

include The ABC Evening News, The CBS Evening News, The NBC Evening News, Good

14
1210615vi



alleged wrongdoing. First, the simple and reasonable step of reviewing publicly available
sources, such as newspaper articles, woud have shown allegations of wrongdoing. In particular,
Chicago area newspapers frequently reported on DES and litigation involving DES. For
example, on October 19, 1991, an article appeared in The Chicago Tribune reporting that a
woman accepted a $4.25 million settlement in a case in which she claimed that DES caused her
to be infertile. (See untitled October 19, 1991 Chicago Tribune article attached as Exhibit N.)
Of note, this article was published just three weeks after plaintiff's HSG and just ten days afier
Dr. Miller wrote a Jetter, which plaintiff admitted she received, stating that plaintiff has a
T-shaped ulerus due to her DES exposure and is at risk for infertility. Additional examples of
articles published in Chicago newspapers, attached as Exhibit O, include: Woman wins in
appeal of ruling over pregnancy drug, The Chicago Tribune, October 10, 1985, at 17 (reporting
appellate victory of a plaintiff alleging that DES had caused her to have pregnancy. difficulties);
Drug firms settle lawsuits over DES, The Chicago Tribune, November 1, 1985, at 3 (reporting
settlement of allegations regarding reproductive dysfunction); Having a baby. when is the time
right in a woman's career? The Chicago Tribune, November 2, 1986, at 8 (xeporting that a “DES
daughter” had pregnancy complications); DES effects may pass to three generations, The
Chicago ‘Tribune, June 9, 1987, at 10 (reporting allegations of link between DES exposure and
reproductive problems); Unexplained infertility distresses couples, challenges doctors, The
Chicago Tribune, July 26, 1987, at 14 (reporting that “DES, a drug once given to pregnant
women to prevent miscarriages, is now belicved to be the cause of infertility in many of their
daughters”); Suit seeks to extend liability laws, The Chicago Tribune, September 18, 1989, at 1
(regarding DES case before I|inois Supreme Court); DES blamed for death of teenager, The

Chicago Tribune, March 12, 1990, at 3 (reporting that the U.S, Supreme Court refused to hear

13
12106151



See Bussineau_v. President and Dirs. of Georgetown
College, 518 F.2d 423, 435 (D.C. 1986). “The law of
limitations requires only that the plaintiff have
inguiry notice of the existence of a cause of action.”
Hendel v. World Plan Executive Council, 705 A.2d 656,
661 (D.C. 1997). We have explained that a cause of
action accrues for statute of limitations purposes when
the plaintiff is deemed to be on inquiry notice,
“because if she had met her duty to act reasonably

under the circumstances in investigating matters
affecting her affairs, such an investigation, if

conducted, would have led to actual notice.” Diamond
v. Davis, 680 A.2d 364, 372 (D.C. 1996) (pex curiam).
Thus, inquiry notice is “that notice which a plaintiff
would have possessed after due investigation.” Id.
(emphasis added

Reasonableness is of course a wholly objective standard, not
a function of the idiosyncrasies of any particular individual.
And in those objective terms, it must be concluded that it was
unreasonable to do what Katherine did (or more accurately did not
do) for years: She engaged in no, follow-up inquiry at all into
DES, into why it caused the serious deleterious effects that it
did, into why in light of those effects it had still been
prescribed and into whether there was anything untoward in all of
this. Even the most modest of such inquiries (in lay, not
professional, terms) would quickly have put Katherine onto
information that clearly would have satisfied the third prong of
the discovery rule as to actual (not simply imputed) knowledge
and would have started the three-year limitations clock ticking.

Indeed, if any jury were to conclude otherwise, its
determination would have to be overturned under Rule 50--and it

is black letter law that the standards under Rule 50 and Rule 56



As it develops, Albers' extensive submission has identified
enough in the way of material (that is, potentially outcome-
determinative) facts to cause the rejection of any early summary
disposition based on issues (1), (2) and (4) listed by Lilly.

But the third issue--the time-bar question--requires substantial
discussion and analysis.

District of Columbia law, as exemplified in Bussineau v.
President and Directors of Georgetown Coll., 518 A.2d 423 (D.C.
App. 1986) and then reconfirmed per curiam in the lengthy opinion
in Diamond v. Davis, 680 A.2d 364 (D.C. App. 1996), applies.a
“discovery rule” to determine when the statutory three-year
limitations clock begins to tick--a modification of the usual
rule that the accrual of a cause of action takes place when the
plaintiff sustains injury. Bussineau, 518 A.2d at 425 stated the
discovery rule requirements in this way:

We hold that for a cause of action to accrue where the

discovery rule is applicable, one must know (or by the

exercise of reasonable diligence should know[)] (1) of

the injury, (2) [of] its cause in fact and (3) of some

evidence of wrongdoing.

Diamond, in which the same court was later called upon to decide
whether different variants of those requirements were called for
in different classes of cases (for example, where fraud and
fraudulent concealment were involved), announced the universality
of the criteria (680 A.2d at 381):

In every case, the plaintiff has a duty to investigate
matters affecting her affairs with reasonable diligence



Fed. R. Civ. P. (“Rule”) 56 on a host of grounds that its counsel
gets out at page 1 of its motion:

Specifically, Lilly is entitled to summary judgment
because (1) plaintiffs cannot prove that she was
exposed to DES in utero; (2) plaintiffs cannot identify
Lilly as the manufacturer of the DES to which plaintiff
was allegedly exposed, as required under applicable
Illinois law; (3) plaintiffs' claims are time-barred;
(4) plaintiff cannot prove causation; (5) plaintiffs'
strict liability claims are time-barred by the Illinois
statute of repose; and (6) plaintiff James Albers
cannot maintain a claim for loss of consortium because
he was not married to plaintiff at the time of her
alleged injury.

In turn, Albers' counsel have begun their responsive legal
memorandum in this fashion (Albers Mem. 1):

Without confidence in any single one of their
arguments, Defendant proposes four different ones for
depriving Ms. Albers of her day in Court, hoping that
one will find its mark. Ms. Albers will thwart each
seriatim.? . aoa

Although Lilly's reply memorandum is not yet due, the head-on
confrontation to this point permits its Rule 56 motion to be

dealt with now.

2 {Footnote by this Court] It is of course simply wrong to

say that if a party's lawyer believes that the client has
multiple grounds for relief, the advancement of those several
grounds somehow reflects a lack of confidence in any one of them.
Albers! counsel gains nothing by advancing such patently
incorrect advocacy--indeed, lawyers often fail to recognize that
urging a frivolous position can taint otherwise colorable
arguments by creating questions as to counsel's credibility.
This Court will not, however, visit any such consequence on
Albers or their counsel. As for the disparity between Lilly's
enumeration of six arguments and Albers' reference to just “four
different ones,” this opinion will briefly refer to that subject
later.



IN THE UNITED STATES, DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

7

KATHERINE M. ALBERS and , "
Aki ¢ 72093,

JAMES G. ALBERS,

Plaintiffs,
Vv. No. 02 C 884

ELI LILLY AND COMPANY,

)

)
)
“yy
)
)
2
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Katherine and James Albers’ originally filed their six-count
Complaint against Eli Lilly and Company (“Lilly”) in the United
States District Court for the District of Columbia, advancing a
number of claims that stemmed from the ingestion of diethyl-
stilbestrol (“DES”) by Katherine's mother Mary Murphy while she
was pregnant with Katherine some 48 years ago. By mutual consent
the action was then transferred to this judicial district, where
it was assigned at random to this Court's calendar. Because the
District of Columbia treats statute of limitations issues as
procedural, and because the procedural law of the transferor
forum continues to apply after transfer, the parties have also
agreed that this Court should look to District of Columbia law on
that subject.

At this point Lilly has moved for summary judgment under

1 For convenience, those husband-and-wife plaintiffs will
be veferred to individually by their first names and collectively

as “Albers.” b



Morning America, The Today Show, CNN Special Report, and The MacNeil/Lehrer Newshour.
(Exhibit N at 75.) Severa) local television broadcasts were also run in Chicago regarding DES,
including March 13, 1979 reports on WBBM and WMAQ regarding the Needham DES case,
and an October 30, 1983 report on WITW. (Jd. at ]5.) Likewise, numerous radio broadcasts
were run regarding DES, injuries allegedly caused by DES and litigation involving DES,
including a six-part radio broadcast on WIND in Chicago. (/d.)

Second, an investigation into publicly available court documents and reported
court opinions would have revealed that other plaintiffs had filed lawsuits related to their DES
exposure, Specifically, plaintiff would have discovered that litigation regarding injuries

allegedly sustained as a result of in utero exposure to DES has been ongoing in Wlinois since at

Jeast the mid-1970s. See, ¢.g., Mink v. University of Chicago, 460 F. Supp. 713 (N.D. Ill. 1978);
Morrissy v. Eli Lilly and Company, 394 N.E.2d 1369 (Il App. Ct. 1979) (opinion does not
indicate when claim was filed, but refers to November 1976 order denying class certification).
Numerous IIlinois state and federal court decisions and opinions regarding DES litigation have
been published. See, e.g., Needham v. White Labs., Inc., 639 F.2d 394 (7th Cir. 1981); Wetherill
v. University of Chicago, 570 F. Supp. 1124 (N.D. Ill, 1983) McMahon y. Eli Lilly and
Company, 774 F.2d 830 (7th Cir. 1985); Smith v. Eli Lilly and Company 560 N.E.2d 324
(Ill. 1990); Sparapany v. Rexall Corp., 618 N.E.2d 1098 (Ill App. Ct. 1993); Zimmerman v.
Abbott Labs., Inc., 545 N.E.2d 547 (Ill. App. Ct. 1989); and Millar-Mintz v. Abbott Labs.,
645 N.E.2d 278 (Ill. App. Ct. 1994). The Illinois Supreme Court observed in 1990 that
“(beginning in the 1970s, hundreds of Jawsuits were filed against manufacturers of DES by

daughters of women who took the drug while pregnant.” Smith v. Eli Lilly and Company,

560 N.E.2¢ at 328.

15
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