MOLL v. ABBOTT LABORATORIES

CAVANAGH, C.J.

In these pharmaceutical products liability actions, we are asked to determine when a cause of action for latent toxic injuries accrues for statute of limitations purposes. We hold that the discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action. Thus, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff's action is barred by the statute of limitations is a question of law, to be determined by the trial judge.

I

A

HARRINGTON v ABBOTT LABORATORIES

Plaintiff Judith Harrington1 was born on August 5, 1955, in Detroit, Michigan. Her mother, Theresa Harrington, ingested DES2 during her pregnancy with Judith. Judith Harrington first became aware of her exposure to DES in utero in the latter part of 1974. At this time, Dr. Bryce, the Harrington family physician, informed Theresa Harrington by letter of her ingestion of DES and the associated reproductive problems found in DES daughters. The letter suggested that Judith Harrington consult a physician specializing in DES problems.

On the advice of Dr. Bryce, Judith visited Dr. Vakhariya on January 2, 1975, who informed her that she had a mosaic on her cervix, a precancerous condition. Although a biopsy revealed that the tissue was benign, Dr. Vakhariya recommended that Judith have semiannual checkups to monitor her condition.

In 1983, Judith Harrington consulted Dr. Laham because of her inability to conceive a child. Dr. Laham informed Judith of her mosaic cervix and advised her that this condition could be caused by DES exposure.3 The doctor also opined that Judith's difficulty in conceiving could be the result of DES exposure. Dr. Laham eventually referred Judith to a reproductive specialist, Dr. Stern, for an extensive examination of her uterus.

Dr. Stern performed a hysterosalpingogram (HSG)4 on December 27, 1983. On the same day, Dr. Stern apprised Judith of the test results, informing her that she had a bicornuate or T-shaped uterus, a condition that can result from DES exposure, and that could be the cause of her difficulty in conceiving.

In the early part of 1984, Judith became pregnant. Dr. Laham treated the pregnancy as highrisk because of her exposure to DES. The doctor placed various restrictions on Judith and her activities. Unfortunately, the precautions proved futile, and Judith miscarried in April of 1984. She learned from Dr. Laham that her uterine deformities caused her miscarriage. Believing that she would experience the same problem with future pregnancies, Dr. Laham advised her not to attempt another pregnancy.

On December 30, 1986, Judith, along with fourteen other named plaintiffs,5 filed suit against the defendants, manufacturers of DES.6 Defendant Eli Lilly & Company, on behalf of all of the defendants, motioned for summary disposition pursuant to MCR 2.116(C)(7), claiming that the three-year products liability, statute of limitations7 barred the plaintiff's suit. Following oral arguments and based upon the pleadings, interrogatory responses, and the sworn deposition of Judith Harrington, Wayne Circuit Court Judge James Mies granted the defendants' motion. Judge Mies concluded, as a matter of law, that Judith knew or should have known of her cause of action when Dr. Stern diagnosed her bicornuate or T-shaped uterus on December 27, 1983. The Court of Appeals affirmed in an unpublished per curiam opinion. We granted leave to appeal on November 2, 1992. 441 Mich. 878. We affirm.

B

MOLL v ABBOTT LABORATORIES

Plaintiff Jean Moll8 became aware of the irregularities in her cervix during a gynecological examination by Dr. Ulmer in April of 1975. Because of the condition of her cervix, Dr. Ulmer asked Jean if she had had an abortion.

In August of 1976, Jean visited another gynecologist, Dr. O'Campo, who informed her that she had a hood over her cervix. Dr. O'Campo indicated that Jean's condition could have resulted from exposure to DES in utero. Dr. O'Campo requested the medical records of Jean's mother.

Jean's mother, Shirley Petroff, recalled being hospitalized for a month during her pregnancy with Jean. She also recalled that her doctor, Dr. Brownell, had administered medication to prevent her unborn child from aborting. Mrs. Petroff, however, could not recall the name of the prescribed drug. Attempting to ascertain what drug Dr. Brownell had administered, Jean and her mother contacted Dr. Brownell's office to inquire about the needed medical records. Dr. Brownell's receptionist informed Mrs. Petroff that the records had been sent elsewhere. Further attempts to locate the records were unsuccessful.

In 1977, Dr. O'Campo advised Jean that her cervix "didn't look good" and that the problem "might be due to the DES that [her] mother had taken...." Following the doctor's recommendation, Jean submitted to another test, a colposcopy, which took place in January of 1978. Following the test, the doctor told Jean that "the results ... were ... fine" and "there was no cause for real concern at that time," but that she had an "incompetent cervix" and this type of problem could have been caused by exposure to DES. The doctor also told the plaintiff that exposure to DES could lead to cancer.

The plaintiff attempted to conceive a child in 1978. After approximately a year, she grew concerned over her inability to conceive and consulted Dr. O'Campo. In February of 1979, Dr. O'Campo told the plaintiff that the hood over her cervix could be preventing conception. Furthermore, the doctor informed Jean that her exposure to DES in utero possibly could have caused the hood on her cervix.

In May of 1980, Dr. O'Campo suggested that the Molls undergo a series of fertility tests because of their continued inability to conceive. These tests were never performed, however, because Jean did not consult Dr. O'Campo again until 1985. Jean was once again informed that the hood on her cervix was the probable cause of her infertility. The plaintiff also learned at the time that her incompetent cervix could cause difficulties in carrying a child to term.9

Jean Moll filed suit against the defendants, manufacturers of DES, on December 30, 1986.10 On July 8, 1988, Judge Mies granted Eli Lilly's11 motion for summary judgment pursuant to MCR 2.116(C)(10), because of the plaintiff's inability to prove that her mother ingested DES, a requirement for alternative liability.12 The court delayed entry of the order, however, until September 9, 1988, to allow Jean additional time to locate Mrs. Petroff's medical records. With the aid of a court order, Jean located Mrs. Petroff's medical records at the Highland Park City Clerk's office. The records confirmed that Dr. Brownell had administered DES to Mrs. Petroff.

In December of 1988, the defendant Eli Lilly13 moved for summary judgment pursuant to MCR 2.116(C)(7). The defendant claimed that Jean Moll's suit was barred by the applicable three-year statute of limitations14 because she knew of a possible cause of action for more than three years before filing suit. On the basis of the pleadings, interrogatory responses, and the sworn deposition testimony of plaintiff Moll and her mother, Mrs. Petroff, Judge Mies denied the defendant's motion, finding that the plaintiff's claim did not accrue until she had proof that her mother ingested DES.

The Court of Appeals affirmed the denial of Eli Lilly's motion for summary disposition on different grounds. It rejected the trial court's contention that a cause of action does not accrue until the plaintiff could prove each element of her claim. The panel also rejected the line of cases holding that a plaintiff's cause of action accrues when she discovers or should have discovered the existence of a possible cause of action. 192 Mich.App. 724, 731; 482 N.W.2d 197 (1992). Instead, the Court held "that a plaintiff's cause of action does not accrue until the plaintiff discovers or through the exercise of reasonable diligence should have discovered that the plaintiff has been injured and what a likely cause of the injury was." The panel determined that a factual dispute existed regarding when Jean discovered that DES was the likely cause of her injuries. Accordingly, the trial court's denial of Lilly's motion was affirmed. We granted the defendants' application for leave to appeal on November 2, 1992. 441 Mich. 878. We reverse.

II

The applicable period of limitation for a products liability action is three years. MCL 600.5805(9); MSA 27A.5805(9). The limitation period begins to run on the date a claim accrues, which is controlled by statute:

In Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich. 146; 200 N.W.2d 70 (1972), we held that the term "wrong," as used in the accrual statute, specified the date on which the defendant's breach harmed the plaintiff, as opposed to the date on which the defendant breached his duty. Common sense dictated such an interpretation because, if the date of the defendant's breach designated the date of accrual, then the plaintiff's claim could be barred before a plaintiff suffers an injury.15 Similarly, our concern about barring a plaintiff's cause of action prematurely has led to our adoption of the discovery rule under the proper circumstances.

In Johnson v Caldwell, 371 Mich. 368, 379; 123 N.W.2d 785 (1963),16 this Court adopted the discovery rule for medical malpractice cases. In doing so, we noted: "[I]t would be `illogical and unintelligent' to require a patient to determine on the date he last consults a physician that malpractice has taken place, when he in fact relies upon the advice that constitutes the malpractice. So to hold would punish the patient who relies upon his doctor's advice and places a premium on skepticism and mistrust." We also adopted the discovery rule in negligent misrepresentation cases. "[I]s there a tort cause of action accruing before plaintiff has knowledge, or should have knowledge, of the negligent misrepresentation? We think not." Williams v Polgar, 391 Mich. 6, 25; 215 N.W.2d 149 (1974). Likewise, we have applied the discovery rule in products liability actions for asbestos related diseases, Larson v Johns-Manville Sales Corp, 427 Mich. 301; 399 N.W.2d 1 (1986).

In these consolidated cases, the plaintiffs argue that the discovery rule applies in pharmaceutical products liability claims. We agree.17 Similar to a plaintiff in an asbestos case, a plaintiff harmed by a prescribed medication is most often unaware of latent resulting injuries. If the three-year period of limitation began to run at the time of the defendant's breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks "to declare the bread stale before it is baked." Fleishman v Eli Lilly & Co, 96 A.D.2d 825, 826; 465 N.Y.S.2d 735 (1983) (Gibbons, J., concurring in part and dissenting in part).

Furthermore, the policies behind the statute of limitations do not preclude the use of the discovery rule in pharmaceutical products liability cases. This Court discussed the policies underlying the statute of limitations in Bigelow v Walraven, 392 Mich. 566, 576; 221 N.W.2d 328 (1974), where we stated:

Nevertheless, as properly noted by the Court of Appeals, application of the discovery rule is appropriate in pharmaceutical products liability cases.

Because the purpose of the statute of limitations is not offended by the application of the discovery rule in pharmaceutical products liability cases, and because adoption of the discovery rule will furnish a reasonable time for injured plaintiffs to seek legal redress for their injuries,18 we hold that the discovery rule governs the date of accrual for pharmaceutical products liability cases.

III

A cause of action for personal injuries accrues when a plaintiff can allege, in a complaint, each element of the asserted claim. Generally, a well-pleaded claim for personal injury must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, (3) the defendant's breach was the proximate cause of the plaintiff's injuries, and (4) damage. Connelly at 150. However, in a pharmaceutical products liability action, as in other cases in which we have applied the discovery rule, the defendant's duty and breach generally predate the plaintiff's awareness of an injury and of its cause. Accordingly, under the discovery rule, the plaintiff's claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered, the two later occurring elements: (1) an injury, and (2) the causal connection between plaintiff's injury and the defendant's breach. See, generally, Caldwell, Polgar, and Larson, supra.

A

At oral argument, the plaintiffs' counsel urged the Court to adopt a DES-specific discovery rule that would forestall the running of the applicable statute of limitations until the plaintiff perceived herself to be injured. Counsel reasoned that the proposed rule would promote the strong policies articulated in Abel and allow a totally blameless plaintiff to seek legal redress against a tortfeasor.

Certainly, adoption of a subjective test would give a plaintiff a greater opportunity to bring suit against an alleged wrongdoer. But this approach would also vitiate the statute of limitations as a defense.19 In enacting the three-year statute of limitations, the Legislature has provided a time limitation that in its judgment gives a plaintiff a reasonable opportunity to investigate a cause of action.20 This Court has recognized specific situations in which the discovery rule must be utilized to prevent unjust results. See Johnson, Polgar, and Larson, supra. While we have provided judicial relief to plaintiffs whose actions would be barred by the statute of limitations through no fault of their own, id., we will not encourage and cannot allow a plaintiff to sleep on an objectively known cause of action.

Adoption of a subjective test would allow a DES plaintiff to legally forestall suit until the time she is convinced that she is injured.

If the Legislature had deemed it appropriate to permit a plaintiff discretion to bring suit, it never would have enacted a statute of limitations or would have provided a specific exception for DES victims.

We have consistently held that under the discovery rule, a cause of action accrues when "the claimant knows or should have known of the disease [injury]...."21 While the term "knows" is obviously a subjective standard, the phrase "should have known" is an objective standard based on an examination of the surrounding circumstances. Consequently, we find that a plaintiff's cause of action accrues when, on the basis of objective facts, the plaintiff should have known of an injury, even if a subjective belief regarding the injury occurs at a later date. Such an interpretation leaves the statute of limitations as a viable defense and promotes the policies underlying the adoption of the statute of limitations.

Michigan jurisprudence compels not only the use of an objective standard for determining when an injury is discovered, but it also compels strict adherence to the general rule that "subsequent damages do not give rise to a new cause of action." Larson at 315. The discovery rule applies to the discovery of an injury, not to the discovery of a later realized consequence of the injury.

In Larson, we held that an action for the asbestos-related disease, asbestosis, accrues at the time a plaintiff knows or should have known of the disease, and not at the time of exposure to the asbestos. We also held that a plaintiff who develops cancer as a result of asbestos exposure may bring suit within three years of when the cancer was or should have been discovered, regardless of whether asbestosis had developed before the three-year limitation period, in cases where a prior action had not been brought.22 Larson at 304-305. We reasoned that deviation from the general rule was warranted because cancer and asbestosis are two distinct diseases that result from asbestos exposure. "`It is widely accepted by the scientific community that asbestosis and cancer are not medically linked, that is, cancer is not an outgrowth or complication of asbestosis.'" Id. at 315, n 6. We premised our decision in Larson on the independence of the asbestos-related diseases, and we specifically noted the narrow application of the exception to asbestos claims.

A review of the facts in Harrington clearly reveals that the plaintiffs' injuries, in the cases at bar, are not independent diseases warranting a departure from the general rule. Plaintiff Judith Harrington claims that her infertility is her injury and that until her miscarriage she was not aware of this injury. Judith Harrington confuses, however, her DES-related physical abnormality (her injury) with a later realized consequence of this physical abnormality. The exposure to DES in utero caused physical abnormalities in her uterus, namely, a bicornuate or T-shaped uterus. Because of this injury, she had difficulty conceiving and carrying a pregnancy to term. The full extent of Judith Harrington's injury and subsequent damage related to her physical abnormality (i.e., her infertility) was fully detectable at the time of initial discovery of her injury. Her infertility was an outgrowth of her deformed uterus.23 In order to promote finality and prevent overburdening of our judicial resources, we adhered to the general principle that the discovery of an injury commences the running of the statute of limitations.

Once a plaintiff discovers a DES injury, she has three years to consult with the legal and medical community about her claim and resulting damages. To hold that the statute of limitations did not begin to run until the plaintiff realized additional consequences of her physical abnormality24 would circumvent the clear intent of the Legislature to promote prompt resolution of claims.

B

The Court of Appeals panel in Moll rejected the discovery rule standard as set forth in Bonney, where the Court of Appeals stated:

In rejecting Bonney's characterization of the discovery rule, the Moll panel reasoned:

The Court of Appeals interpretation increases the period before which a plaintiff's claim accrues under the discovery rule because a "possible cause of action" generally will be discovered before a "likely cause" of injury. Because we find that such an interpretation upsets the balance sought between the judicially created discovery rule and the legislatively mandated statute of limitations, we hold that Bonney's characterization of the discovery rule is the proper standard.

The Moll panel's interpretation of the discovery rule raises the level of certainty with respect to causation. According to Black's Law Dictionary (6th ed), p 925, the term "likely" is defined as:

The term "possible," on the other hand, connotes a lesser standard of information needed to provide knowledge of causation. Black's Law Dictionary defines the term "possible" as:

When determining the appropriate standard for the discovery rule, we must keep in mind the policy reasons prompting the adoption of the statute of limitations, as well as the discovery rule, and choose the interpretation that best promotes both policies and does the least amount of damage to the respective principles of law.26 In Lothian v Detroit, 414 Mich. 160, 166-167; 324 N.W.2d 9 (1982), we articulated the policy considerations prompting the adoption of the statute of limitations:

As discussed earlier, this Court has adopted the discovery rule to prevent the barring of claims before the claimant's realization of a cause of action. See Johnson, Polgar, and Larson, supra.

While the Court of Appeals applicable test of a "likely cause" obviously addresses our concern against barring a plaintiff's cause of action prematurely, it also wreaks havoc with the legislative policies underlying the statute of limitations. The statute of limitations encourages claimants to investigate and pursue causes of action. It alleviates defendants' continued fear of litigation following a legislatively mandated time period.27 A "likely cause" standard is inapposite to such policies.

We find that the best balance is struck in the use of the "possible cause of action" standard. This standard advances the Court's concern regarding preservation of a plaintiff's claim when the plaintiff is unaware of an injury or its cause, yet the standard also promotes the Legislature's concern for finality and encouraging a plaintiff to diligently pursue a cause of action. Once a claimant is aware of an injury and its possible cause, the plaintiff is aware of a possible cause of action. We see no need to further protect the rights of the plaintiff to pursue a claim, because the plaintiff at this point is equipped with sufficient information to protect the claim.28 This puts the plaintiff, whose situation at one time warranted the safe harbor of the discovery rule, on equal footing with other tort victims whose situation did not require the discovery rule's protection. This position is consistent with the jurisprudence of our state.

Additional support for our adoption of a "possible cause of action" standard29 is found in other cases applying the discovery rule.30

IV

The final question we must resolve is whether a plaintiff's request for a jury trial prohibits a trial judge from granting a motion for summary disposition based on the statute of limitations. We hold that in the absence of disputed facts, the question whether a plaintiff's cause of action is barred by the statute of limitations is a question of law to be determined by the trial judge.

We have long recognized that a jury is charged with resolving disputed facts. Kroes v Harryman, 352 Mich. 642, 648; 90 N.W.2d 444 (1958); Christiansen v Hilber, 282 Mich. 403, 407; 276 NW 495 (1937); Peoples Wayne Co Bank v Wolverine Box Co, 250 Mich. 273, 279; 230 NW 170 (1930). However, "[b]efore a jury is ever reached a preliminary decision must always be made, namely, whether or not there is anything to go to a jury." Kroes at 646. Where the facts of a case are uncontroverted and the only question left is what legal conclusions can be drawn from the facts, the question is for the court and not the jury. Kroes at 648; Coddington v Robertson, 160 Mich.App. 406, 410; 407 N.W.2d 666 (1987).

Both our court rules31 and case law recognize the desirability of allowing summary disposition, regardless of a jury request, when uncontroverted facts are presented to the court. This promotes efficiency and preservation of judicial resources.

While we do not tolerate usurping the province of the jury,32 we do permit courts to determine a case when only a question of law exists. We permit courts to act in this manner as seen in summary judgment proceedings pursuant to MCR 2.116(C)(1) through (10),33 a grant of a directed verdict,34 as well as a judgment notwithstanding the verdict.35

While a court must be cautious when dismissing a claim pursuant to summary disposition,36 it does not have to remain idle in the presence of undisputed, uncontroverted facts. In this situation, the only question remaining is what legal conclusion can be drawn from the facts. This question is to be decided as a matter of law by the trial judge.

V

On the basis of the foregoing principles, we hold that the statute of limitations bars Judith Harrington's and Jean Moll's lawsuits. The uncontroverted deposition testimony of Judith Harrington reveals that as of December 27, 1983, she knew of (1) her bicornuate or T-shaped uterus, and (2) the possible link between her DES exposure and the deformity of her uterus. She not only knew of her injury, but its possible cause. Accordingly, she knew or should have known of her possible cause of action on December 27, 1983. Consequently, she had until December 27, 1986, to consult with the legal and medical community in order to ascertain the full extent of her damages and to file suit. Her failure to file suit by December 27, 1986, compels us to hold that the statute of limitations bars her claim.

The uncontroverted deposition testimony of Jean Moll reveals that as of August 1976 she knew of (1) her hooded cervix, and (2) the possible link between DES exposure and her deformed cervix. She not only knew of her injury, but its possible cause. Accordingly, she knew or should have known of her possible cause of action no later than August of 1976. Consequently, she had until August 1979 to consult with the legal and medical community in order to ascertain the full extent of her damages and to file suit. Her failure to file suit by August 1979 compels us to hold that the statute of limitations bars her claim.

VI

The discovery rule controls the determination of when a cause of action accrues in a pharmaceutical products liability action. We hold that under the discovery rule, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action. Furthermore, we hold that in the absence of disputed facts, the question whether a plaintiff's action is barred by the statute of limitations is a question of law, to be determined by the trial judge.

The law imposes on a plaintiff, armed with knowledge of an injury and its cause, a duty to diligently pursue the resulting legal claim. Because neither Judith Harrington nor Jean Moll filed suit within three years of discovering their possible causes of action, the statute of limitations bars their suits.37

Accordingly, we affirm the Court of Appeals holding in Harrington and reverse the Court of Appeals holding in Moll.

BRICKLEY, RILEY, and GRIFFIN, JJ., concurred with CAVANAGH, C.J.

BOYLE, J. (concurring in part and dissenting in part).

I agree that the discovery rule applies in pharmaceutical products liability claims and with the Court's conclusion that plaintiff Harrington knew or should have known of her claim on December 27, 1983. I write separately because I disagree with the result in Moll, and because I am concerned that the Court's rationale unnecessarily restricts development of the discovery rule.

In my view, there is no difference between "possible" and "likely" as the quantum of fact that triggers the statute under the discovery rule. The concept of reasonable diligence is implicit in the discovery rule and the reasonable person test is sufficiently flexible to permit fact-specific application regarding whether a plaintiff knew or should have known of the fact of injury and a causal connection. Finally, because the statute of limitations is an affirmative defense, all inferences favor the nonmoving party. Applying this test, I believe that there is a question whether plaintiff Moll was reasonably diligent in discovering the operative cause of her injury. I would remand to the trial court for further proceedings.

The Court of Appeals in Moll correctly rejected the contention that the discovery rule is not triggered until plaintiff knows or should know of "all the elements of a cause of action," including the defendant's breach of duty. Bonney v Upjohn Co, 129 Mich.App. 18, 26-27; 342 N.W.2d 551 (1983).

To the extent that Bonney suggested in dicta that the statute does not begin to run until the plaintiff discovers "each element of his cause of action," id. at 24, that suggestion is incorrect. As the Court of Appeals observed in Moll, quoting from United States v Kubrick, 444 U.S. 111; 100 S.Ct. 352; 62 L Ed 2d 259 (1979), adoption of a standard that deferred accrual until plaintiff knew, or could reasonably be expected to know, of the defendant's breach of duty, or until the plaintiff had reason to suspect, or was aware of facts that would have alerted a reasonable person to the possibility, that a legal duty to him had been breached, "`would go far to eliminate the statute of limitations as a defense separate from the denial of a breach of duty.'" 192 Mich.App. 734. In short, a plaintiff need not know she has suffered an invasion of a legal right before a cause of action accrues.

It is one thing, however, to say as the majority does that the discovery rule is triggered when a plaintiff knows of the fact of an injury and a causal connection, and another to say there is a distinction between "possible" and "likely" as the quantum of fact triggering the discovery rule. Indeed, in Kubrick itself, the Court, narrowly interpreting the government's waiver of immunity under the Federal Tort Claims Act, held that plaintiff's claim accrued when he learned it was "highly possible" that his hearing loss was the result of neomycin treament. 444 U.S. 114. To be sure, the notice of cause cannot await subjective belief in the linkage between injury and cause in fact. To delay operation of the discovery rule to this point would emasculate the diligence requirement of the rule. Nor, for the same reason, is it necessary that the plaintiff have a definitive professional opinion regarding the injury or its cause. Kroll v Vanden Berg, 336 Mich. 306, 311; 57 N.W.2d 897 (1953).

Beyond these observations, it is, in my judgment, unwise to introduce a new battleground, i.e., the distinction between whether the cause-in-fact connection is "possible" or "likely" into the statute of limitations arena. In fact, courts using the "likely" cause formulation have relied on testimony that plaintiff was told of the "possibility" of the causal connection. Fidler v E M Parker Co, Inc, 394 Mass. 534; 476 N.E.2d 595 (1985). In my view, common sense and reason dictate that the limitation period does not begin to run until a plaintiff knows he has been injured and can reasonably determine what or who hurt him. Bayless v Philadelphia Nat'l League Club, 579 F.2d 37 (CA 3, 1978). As in Bayless, Moll involves the question of someone's wrongdoing, not in the sense of a known breach of a legal duty, but whether there is a connection between plaintiff's condition and some causal factor. Thus, if there were evidence in the record in Moll to suggest that plaintiff could have learned of defendant's responsibility had she exercised due diligence, summary judgment would be appropriate.

With the doctrine of reasonableness as a constant and the standard of due diligence as a guide, courts are able to determine when a plaintiff knew or should have known of an injury and its possible or likely cause, as well as whether there is a disputed issue of fact that requires jury resolution. Without a flexible approach, the purpose of adopting the discovery rule for latent injuries, as well as the procedural presumption favoring the nonmoving party on summary disposition, will be undermined.

The discovery rule is applied to a growing variety of situations in which the nature of the injury and the difficulty of discovering its cause pose inherent difficulties calling for amelioration of the harsh consequences of the accrual rule. The nature of the information necessary and the quality of the requisite knowledge will vary from case to case and "more than that, from type of case to type of case." Vispisiano v Ashland Chemical Co, 107 N.J. 416, 434; 527 A.2d 66 (1987). As the court in DuBose v Kansas City S R Co, 729 F.2d 1026, 1031 (CA 5, 1984), stated, whether a "plaintiff may be charged with awareness that his injury is connected to some cause should depend on factors including how many possible causes exist and whether medical advice suggests an erroneous causal connection or otherwise lays to rest a plaintiff's suspicion regarding what caused his injury." See also Errichiello v Eli Lilly & Co, 618 F.Supp. 484 (D Mass, 1985).

Whether it can be said as a matter of law that a plaintiff has exercised reasonable diligence turns on the nature of the injury, its symptoms, and available medical knowledge. Where a plaintiff experienced bleeding between periods, nausea, and diarrhea, but was told by her physician that she was asymptomatic and that she did not have pelvic inflammatory disease, began her lawsuit within three years of consulting another doctor who removed her IUD and told her she probably had PID, the court found that the plaintiff could not be expected as a matter of law to "personally diagnose her condition or consult with a physician more frequently than she did." Hansen v A H Robins, Inc, 113 Wis.2d 550, 561; 335 N.W.2d 578 (1983). Illustrating the same principle in the context of the latent injury of asbestosis, the court in Morgan v Johns-Manville Corp, 354 Pa.Super. 58; 511 A.2d 184 (1986), held that summary judgment was properly granted regarding one shipyard worker who had been informed by a physician that he had asbestosis, but had improperly granted the motion regarding another shipyard worker who had been informed only that an x-ray showed pleural thickening. With regard to the latter plaintiff, the court stated:

In Moll, the issue is not the injury, but who or what hurt plaintiff and whether, as a matter of law, plaintiff should have discovered the cause of the injury. I would remand Moll, not for the determination ordered by the Court of Appeals, i.e., whether DES was a "likely" cause of her hooded cervix, but rather for a determination whether, given the circumstances presented, a plaintiff exercising due diligence would have discovered the operational cause of the injury. If, from the facts presented, a jury could reasonably conclude that plaintiff acted diligently in pursuing who or what caused her injury, summary judgment should be denied. MCR 2.116(I).

I acknowledge that in the only case found on point in which the plaintiff had no confirmation of the diagnosis that her mother had taken DES, the majority upheld the granting of summary judgment. See O'Brien v Eli Lilly & Co, 668 F.2d 704 (CA 3, 1981). In my view, the better approach is that pointed out by Judge Higginbotham in dissent in O'Brien:

MALLETT, J. (dissenting).

Although I concur with the majority's analysis, I dissent from the majority's holding that Judith Harrington's suit is barred by the statute of limitations. The majority holds that in a pharmaceutical products liability action, the statute of limitations commences when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered the injury and the causal connection between plaintiff's injury and defendant's breach. Applying this standard, the majority concludes that Jean Moll knew or should have known of her possible cause of action no later than August 1976. Since evidence of her condition and the possible cause thereof was overwhelming, I agree that Jean Moll's suit is barred by the statute of limitations.

However, I dissent from the majority's conclusion that Judith Harrington knew or should have known of her injury on December 27, 1983. On December 27, 1983, Dr. Stern informed her that a possible cause of her inability to conceive was her bicornuate uterus, that may have been caused by exposure to DES. In early 1984, only a few weeks after Dr. Stern's diagnosis, Judith Harrington became pregnant. As a result, she achieved that which her injury was to ultimately prevent. Her injury did not manifest itself until April 1984, when she miscarried. Therefore, because the consequences of her injury did not manifest itself until April 1984, the statute of limitations did not preclude her suit until April 1987.

The majority's unforgiving application of the discovery rule ignores the objective reality of Judith Harrington's circumstances. The record does not contain Dr. Stern's exact statements to her. Without this imperative information, it is impossible to confidently determine what she knew or should have known. If Dr. Stern unequivocally informed her that because of her exposure to DES she could never carry a child to term, I could concur with the majority's conclusion that the statute of limitations was triggered on December 27, 1983. However, without the record indicating otherwise, I assume that Dr. Stern's message was typically ambiguous and qualified. Consequently, her suit is not barred by the statute of limitations.

LEVIN, J. (dissenting).

These cases, consolidated on appeal, concern the application of the discovery doctrine to causes of action claiming injury as a result of DES1 exposure.

In Moll v Abbott Laboratories, the Court of Appeals affirmed a denial of the defendants' motion for summary judgment on the ground that the statute of limitations did not begin to run until Moll learned that she likely had a cause of action. I would vacate that decision and remand for trial on the issue whether Moll acted with reasonable diligence in discovering that DES exposure was a cause of her hooded cervix and infertility.

In Harrington v Abbott Laboratories, the Court of Appeals affirmed the circuit court's grant of summary disposition in favor of Abbott Laboratories on the ground that the statute of limitations began to run when Harrington learned of an abnormality of her uterus. I would vacate the decision of the Court of Appeals and remand for trial on the issue whether Harrington should have discovered that she was injured by DES exposure before she learned of her infertility.

I

Jean Moll has an "incompetent cervix," and for that reason is unable to carry a pregnancy to term. Because her cervix appeared irregular, her gynecologist, in 1975, asked her if she had had an abortion. She had not, and the gynecologist said that she had nothing to worry about regarding her cervix. Another gynecologist, in 1977, told her that she had a "hood over [her] cervix," asked her if her mother had taken DES while she was pregnant with Moll, and asked that she obtain her mother's medical records. That physician also told her that her cervix "didn't look good," that the condition might be related to exposure to DES, and that her difficulty conceiving might be related to DES. The physician added that DES exposure could lead to some forms of cancer. The physician also advised her to have a fertility test. Moll did not have the test at that time because she was "too chicken" and preferred to continue attempting to conceive.

By 1985, Moll, not having become pregnant, had the fertility test. After the test, her physician identified the hooded cervix as the probable cause of her inability to conceive.

This action was commenced on December 30, 1986, seeking damages for injuries from in utero exposure to DES. Abbott Laboratories filed a motion for summary disposition, asserting that Moll's mother had not ingested DES. The motion was granted, but entry of the order was stayed until Moll could complete her search for her mother's medical records.

In October, 1988, Moll obtained medical records establishing that her mother had taken DES. Abbott Laboratories then moved for summary disposition, asserting that Moll's claim was barred because more than three years had elapsed since she knew or should have known that her injuries may have been caused by in utero exposure to DES.

The circuit judge denied the motion. The Court of Appeals affirmed, but remanded for a finding when a reasonable person in Moll's circumstances would have concluded that her mother's ingestion of DES was a likely cause of her hooded cervix.

A

The issue is whether Moll exercised reasonable diligence in discovering that DES exposure had caused her cervical condition and inability to conceive.2 I agree with my dissenting colleague3 that in assessing the reasonableness of Moll's delay in commencing this action, one should consider a number of factors including whether Moll sought to learn whether her mother had ingested DES, had informed herself through medical advice or lay literature of the potential connection between DES and reproductive problems, or sought to verify that DES, rather than another element, was a cause of her inability to conceive.4

In the DES context, the concept of reasonable diligence should take into account that when a reasonable woman learns that she may be afflicted with a serious reproductive disorder, she may initially take steps to address her medical problem in light of the available medical information and the course of treatment prescribed by her physician. Such a reasonable woman may reasonably continue to focus on the healing or diagnostic process until she has reasonable confidence that her condition has been correctly diagnosed or is under control. Reasonable diligence should include as a factor that a woman anxious to have children may, although advised that she may be a victim of defective drugs, be more concerned about her health and achieving conception than abandoning those efforts in favor of recourse to the courts.5

B

The record on appeal is sparse. We are therefore not in a good position to evaluate comprehensively the reasonableness of Moll's behavior in delaying the commencement of this action.6 We do not have the full depositions either of Moll or her mother. The small bit of evidence that the parties have chosen to include in the record is sufficient, however, to lead me to conclude that the issue of Moll's diligence should not have been decided summarily.

Moll's testimony shows a woman confused about her condition, unable to obtain her mother's medical records, and fearful of a fertility test. Moll was receiving mixed signals from her physicians, who appear to have sought to alert her to the possibility of DES exposure without unduly frightening her. For instance, as the majority notes, in 1978 Moll was informed that the results of her colposcopy "were ... fine" and also that "there was no cause for real concern at that time," but also that her cervical condition could indicate DES exposure which could lead to cancer.

After receiving these mixed signals about her health and the warnings about possible DES exposure, Moll did make an attempt to locate her mother's medical records in 1979. Her mother's records had been stored at the Highland Park General Hospital, which had since closed because of fire, and Moll was unable to obtain the records. Moll's physician then made an unsuccessful attempt to locate the missing records. That, too, failed. Moll decided to focus her energies on conceiving a child to determine if the DES exposure had truly left her unable to bear children. She did not pursue the medical records again until after this action was commenced. Even then, Moll was able to find and obtain the records only pursuant to a court order. The records finally confirmed that Moll's mother had been treated with DES during Moll's gestation.

C

The majority concludes, as a matter of law, that Moll did not exercise due diligence in attempting to discover the cause of her medical problems. However, before 1985, Moll's physicians were only able to speculate about a possible link between her health problems and her mother's ingestion of DES. No doctor told her with a fair degree of certainty that her condition was caused by DES.7

The consultations with her physicians concerning her possible DES exposure came while Moll was undergoing examination and treatment for ailments such as excess vaginal discharge and infertility. The trier of fact could reasonably conclude that during this period Moll was reasonably justified in focusing on solving her medical problems rather than immediately searching to discover whether DES was a cause of those problems.

In all events she made a good-faith attempt to discover whether DES was a cause, without success. Moll and her physician each made attempts to find her records in the late 1970's, but failed to do so. A reasonable trier of fact could conclude that due diligence required no more.

D

In holding that the statute of limitations begins to run as soon as a woman, situated as was Moll, discovers a "possible cause of action," the majority places all such women in an untenable dilemma. If Moll had commenced an action when she was able to allege only a "possible" link between DES exposure and her injury, she very well may have suffered summary disposition. The majority's approach thus effectively may deprive women like Moll of a meaningful opportunity to commence an action and recover for their injuries.

The Ohio Supreme Court recently struck down a DES-specific statute of limitations — which mirrored the Court's approach in this case — because the statute did not afford DES-exposed women a reasonable opportunity to bring a claim for their injuries. Burgess v Eli Lilly & Co, 66 Ohio St.3d 59; 609 N.E.2d 140 (1993). The statute at issue in Burgess provided that a cause of action for DES-related injuries accrues "upon the date on which the plaintiff learns from a licensed physician that he has an injury which may be related to such exposure, or upon the date on which by the exercise of reasonable diligence he should have become aware that he has an injury which may be related to such exposure...." Id. at 61. In the Ohio court's words, the statute of limitations "is triggered when the plaintiff learns that she possibly has a DES-related injury." Id.

In a well-reasoned opinion, the court explained why the statute was unreasonable:

The "possible" claim approach was seen as unreasonable8 by the Ohio Supreme Court because it deprived plaintiffs of "an opportunity for remedy at a meaningful time or in a meaningful manner." Id. at 63. The majority's approach deprives women of remedies for DES-related harms in much the same way as the Ohio statute in Burgess.

II

Judith Harrington was exposed to DES in utero. She became aware of her DES exposure in January, 1975, and, between 1975 and 1983, saw several physicians who informed her that she exhibited certain abnormalities associated with DES exposure, including having a mosaic on her cervix. In 1983, because she was having difficulty becoming pregnant, she had an HSG test — an x-ray of the uterus and fallopian tubes. On December 27, 1983, her physician informed her of the results of the test — that she had a bicornuate uterus, and that it might also be abnormally T-shaped, which could cause difficulty in conceiving or carrying a pregnancy to term — and he scheduled additional tests, including a D and C.9

During that office visit the physician told Harrington, however, that while some DES exposed daughters have difficulty conceiving and carrying a pregnancy to term, he was optimistic it would not be the case with her.10

Harrington became pregnant in January or February, 1984, and miscarried in March 1984. Her physician then performed a D and C and informed her that after a better look at her uterus, he found that it was too small to permit her to carry a pregnancy to term. The physician advised her not to become pregnant again.

Harrington filed this action on December 30, 1986.

The circuit judge granted Abbott Laboratories' motion for summary disposition on the basis that, pursuant to the discovery rule set forth in Larson v Johns-Manville Sales Corp, 427 Mich. 301, 309; 399 N.W.2d 1 (1986), the three year statute of limitations began to run on December 27, 1983 — when Harrington learned of the result of the HSG test and knew that she had suffered "some damage" in the form of a misshapen uterus. The Court of Appeals affirmed.

A

The issue is when Harrington "knew" or "should have known" that she was "injured." Larson, supra at 309. I would hold that considering the unique nature of DES-related harms, a reasonable trier of fact could conclude that Harrington should not have known that she was injured before she learned of her infertility.

Exposure to DES can have multiple effects — some of which will develop into compensable injuries — including cancer, uterine abnormalities, and difficulty with conception and then carrying a pregnancy to term. Not all the effects caused by DES exposure are in fact "harms" or "injuries" at the instant that the DES effect is discovered.

Harrington's physician told her that DES exposure might have caused the development of her abnormal uterine condition. He also told her that this condition could cause difficulty in conceiving and carrying a child to term, but he was optimistic that would not be the case with her.11 At the same time, her physician advised her that many DES-exposed daughters do not have difficulty bearing children. The trier of fact could reasonably conclude that when Harrington first learned of her uterine condition it was not causing her any harm, and that she was reasonably justified in not considering it to be a present injury.

The Court errs in defining Harrington's initial uterine condition as her injury and in defining the infertility as mere "additional consequences" of her "physical abnormality." Ante at 20. Harrington's physical abnormality was not, in itself, clearly an injury that would cause her any sort of distress. Only after Harrington discovered that the physical abnormality would indeed prevent her from conceiving and carrying a child to term did she know that she had been truly harmed.12

The majority's approach places plaintiffs like Harrington in an untenable position in much the same way as the majority placed plaintiffs like Moll in an untenable position. The majority would have had Harrington file her action before she learned whether the uterine condition would truly be a problem. If she would have filed an action when she first learned of her uterine condition, before she knew whether the condition would cause infertility or other health problems, her action would probably have been dismissed on a motion for summary disposition. At that juncture, Harrington would not have been able to show how she had been harmed by DES. Her own physicians were telling her that they were optimistic that she could have children even with the uterine condition. Harrington would not have been able to identify any harm she was then suffering from the DES exposure, nor could she have carried the burden of showing that it was reasonably certain that her DES-related condition would eventually develop into a compensable injury. See Larson.13 A reasonable trier of fact could conclude that Harrington acted with reasonable diligence in waiting until 1986 to conclude that she had suffered an injury.

III

The majority also errs in holding that a circuit judge should decide, on a motion for summary judgment, whether Moll and Harrington exercised due diligence in discovering the nature and extent of their injuries. The majority states that a circuit judge "does not have to remain idle in the presence of undisputed, uncontroverted facts" where "the only question remaining is what legal conclusion can be drawn from the facts." Ante at 27-28.

It is well settled as a matter of both Michigan and federal civil procedure that it is for the trier of fact, generally the jury, to decide where reasonable persons can draw different inferences from undisputed facts. In DiFranco v Pickard, 427 Mich. 32, 54; 398 N.W.2d 896 (1986), this Court said, "where there is no material factual dispute, a motion for summary disposition (as well as directed verdict and judgment notwithstanding the verdict) should not be granted if the facts can support conflicting inferences." See also Windsor Securities, Inc v Hartford Life Ins Co, 986 F.2d 655, 659 (CA 3, 1993) ("Summary judgment may not be granted, however, where there is disagreement over the inferences that can be reasonably drawn from the facts even if the facts are undisputed"); Webb v Allstate Life Ins Co, 536 F.2d 336, 339 (CA 10, 1976) ("Where different ultimate inferences may properly be drawn, the case is not one for summary judgment").

The undisputed facts in both Moll and Harrington are subject to conflicting inferences. Reasonable minds could differ concerning when Harrington knew or should have known that she sustained a compensable injury: was the key event the discovery of the misshaped uterus or the discovery that the consequence of that uterine condition would be infertility? Reasonable minds could also differ whether Moll acted with due diligence in pursuing the DES exposure issue. The answers to the questions posed by these factual situations are far from clear. Thus, judgment as a matter of law is appropriate in neither, and both Moll and Harrington are entitled to a determination by the constitutionally ordained trier of fact, a jury.

In a closely related discovery case, also involving a claim for DES-caused injuries and in which there was "no dispute between the parties as to the essential evidentiary facts, but only as to the ultimate conclusion to be drawn from those facts," the United States District Court for the District of Massachusetts held that the resolution of the question "whether, under all the circumstances, [the plaintiff] reasonably should have discovered the cause prior to" the running of the statute of limitations "requires a determination of the reasonableness of plaintiff's conduct," and therefore did "not lend itself to determination as a matter of law." Errichiello v Eli Lilly & Co, 618 F.Supp. 484, 487 (D Mass, 1985) (emphasis added).14

IV

Neither of the primary justifications for applying the statute of limitations — the barring of stale claims and providing the defendant reasonable notice of potential claims — is served by closing the courthouse door to Moll and Harrington and their DES sisters.

As the Rhode Island Supreme Court observed, allowing plaintiffs such as Moll and Harrington to bring DES claims long after their mothers ingested the drug does not unfairly "`force an unfresh claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses.'" Anthony v Abbott Laboratories, 490 A.2d 43, 47 (RI, 1985). Rather, in DES cases:

See also Raymond v Eli Lilly & Co, 117 N.H. 164, 174; 371 A.2d 170 (1977) (noting that extending the statute of limitations against drug companies is equitable, inter alia, because "unlike the situation in most cases, the passage of time in a drug case is likely to increase both the amount and the accuracy of the evidence"). Indeed, "because this product [DES] usually affects a different generation from that which received the product, plaintiffs and not defendants would be most prejudiced by faded memories, misplaced records, or deceased witnesses." Anthony, 490 A.2d 47. Thus, the claims in the instant cases are hardly "stale," and the passage of time has not deprived the pharmaceutical companies of relevant evidence that would support a defense.

Allowing Moll and Harrington to proceed would not force the pharmaceutical companies to defend against wholly unexpected claims. Indeed, since well before the landmark case of Sindell v Abbott Laboratories, 26 Cal.3d 588; 163 Cal.Rptr. 132; 607 P.2d 924 (1980) (approving the market-share basis of liability for DES manufacturers), the pharmaceutical companies who manufactured DES have had actual notice that potentially thousands of so-called "DES daughters" would have possible causes of action.

The hundreds of reported DES cases against these pharmaceutical companies suggest that in all likelihood they have legal counsel well experienced in litigating DES suits. Against this dense background of DES litigation, the majority's concern about "`put[ting Lilly and Abbott] on notice'" that they may face additional DES claims rings hollow. Ante at 23, n 27.

I would remand the cases for trial.