¹ In 1947, the Food and Drug Administration [hereinafter FDA] approved a new drug application [hereinafter NDA] for DES for use in pregnancy complications. A drug may not be marketed until it receives its NDA. In order to obtain the NDA, pharmaceutical companies had to submit data to the FDA concerning the chemical identity of the drug, control data on methods of manufacture, and clinical studies. The FDA used this information to evaluate the safety of the drug. See Ferrigno v. Eli Lilly & Co., 175 N.J. Super. 551, 555, 420 A.2d 1305, 1311 (1980). Presently the FDA requires that information be submitted concerning both the safety and efficacy of drugs before it will grant an NDA. See 21 C.F.R. § 314.1 (1980).

² See Emons Indus., Inc. v. Liberty Mut. Fire Ins. Co. & Reserve Ins. Co., 481 F. Supp. 1022, 1023 (S.D.N.Y. 1979). The court in Lyons v. Premo Pharmaceutical Laboratories, 170 N.J. Super. 183, 191, 406 A.2d 185, 189 (1979), noted that in the early 1940's drug companies sought authorization to manufacture DES for four purposes: the treatment of post-menopausal symptoms, senile vaginitis, gonorrheal vaginitis in pre-pubertal girls, and suppression of lactation. At the same time medical research was being done concerning the use of DES for prevention of miscarriage and other pregnancy problems. In 1947, drug companies sought additional authorization to market DES in larger dosages to treat pregnancy complications.

³ In 1971, several professional papers reported a “statistically significant” correlation between DES and vaginal cancer. See Greenwald, Barlow, Nasca, & Burnett, Vaginal Cancer After Maternal Treatment with Synthetic Estrogens, 285 New Eng. J. Med. 390 (1971)CrossRefGoogle Scholar; Herbst, Ulfedker, & Poskanzer, Adenocarcinoma of the Vagina, 284 New Eng. J. Med. 878 (1971)CrossRefGoogle Scholar.

⁴ A study also has linked DES with causing infertility in sons of mothers who took DES during pregnancy. A Study Links DES and Male Infertility, Boston Sunday Globe, Oct. 12, 1980, at 5, col. 1. This Note does not address the problem of how statutes of limitations should be applied to sons. DES sons face causation problems not faced by DES daughters because of the limited amount of research done concerning the effect of DES on male offspring.

⁵ Many DES daughters have developed adenosis, which is abnormal, non-malignant cellular growth in the vagina. Some articles report that 30-35% of girls exposed to DES develop adenosis. See Benton, Stilbestrol and Vaginal Cancer, 74 Am. J. Nursing 900 (1974)Google Scholar; Elliot, Risk of Cancer, Dysplasia for DES Daughters Found ‘Very Low', 241 J.A.M.A. 1555 (1979)CrossRefGoogle Scholar. According to Barclay, Congenital Diethylstilbestrol-Associated Vaginal /Cervical Adenosis, 75 J. Ark. Med. Soc'y 451 (1979)Google Scholar, 75% of girls exposed to DES during the first eight weeks of pregnancy develop adenosis.

⁶ DES daughters is a term used to describe daughters of mothers who took DES during pregnancy.

⁷ Statutes of limitations are statutes which prescribe the number of years during which a suit can be brought after the right to bring the suit, that is, the cause of action, accrued. After the statutory period has expired, a court will not entertain a suit based on that cause of action. Black's Law Dictionary 1077 (rev. 4th ed. 1968).

⁸ See Martinez-Ferrer v. Richardson-Merrill, Inc., 105 Cal. App. 3d 316, 334, 164 Cal. Rptr. 591, 595 (1980) (cancer caused by DES is believed to strike after a minimum latent period of 10-12 years); Morrissy v. Eli Lilly & Co., 76 Ill. App. 3d 753, 394 N.E.2d 1369 (1979) (latent period of presently indeterminable length occurs between the genesis of carcinoma and the onset of clinically observable symptoms capable of being diagnosed V,1 and treated). Lanier, Noller, Decker, Elveback, & Kurland, Cancer and Stilbestrol, 48 Mayo Clinic Proceedings 793, 798 (1979)Google Scholar calculate the risk of developing cancer at less than 7 per thousand for daughters under age 13, 8 per thousand by age 16, 9 per thousand by age 19, and 22 per thousand by age 22. Barclay, supra note 5, at 451, states that the peak incidence of cancer is at age 19.

⁹ Bridgford v. United States, 550 F.2d 978, 981-82 (4th Cir. 1977) (until claimant has a reasonable opportunity to discover all the essential elements of the cause of action—duty, breach, causation, and damages—the claim does not accrue).

¹⁰ See note 1 supra and accompanying text.

¹¹ See Sheiner, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L. Rev. 963, 964 (1978)Google Scholar. See also McCreery v. Eli Lilly & Co., 87 Cal. App. 3d 77, 80, 150 Cal. Rptr. 730, 732 (1978) (142 drug companies manufactured DES). The New York Times stated that “some 200 companies manufactured DES during the 30 years the drug was on the market.” High Court Refuses to Bar DES Suit, N.Y. Times, Oct. 15, 1980, at D3, col. 1.

¹² One source estimated the number to be four million. A Study Links DES and Male Infertility, Boston Sunday Globe, Oct. 12, 1980, at 5, col. 3. Another source estimated the number to be three million. High Court Refuses to Bar DES Suit, N.Y. Times, Oct. 15, 1980, at D3, col. 1. See also Sheiner, supra note 11, at 964.

¹³ See note 2 supra and accompanying text.

¹⁴ Before DES daughters came to the attention of the medical profession, no patient under 30 years old had ever been diagnosed as having clear cell adenocarcinoma of the vagina. Barclay, supra note 5, at 451.

¹⁵ See note 3 supra and accompanying text.

¹⁶ See, e.g., Benton, Stilbestrol and Vaginal Cancer, 74 Am. J. Nursing 900 (1974)Google Scholar: Nordquist, Fidler, Woodruff, & Lewis, Clear Cell Adenocarcinoma of the Cervix and Vagina, 37 Cancer 858 (1974)Google Scholar.

¹⁷ Sheiner, supra note 11, at 964-65.

¹⁸ Articles in medical journals originally calculated the risk that a girl exposed to DES would develop cancer at approximately 9 per thousand. See Lanier, Noller, Decker, Elveback, & Kurland, Cancer and Stilbestrol, 48 Mayo Clinic Proceedings 793, 798 (1974)Google Scholar; Vaginal Adenocarcinomas and Maternal Oestrogen Ingestion, 1974 The Lancet 250 (1974)Google Scholar. More recently, in Barclay, supra note 5, at 451, the risk was calculated at between .14 to 1.4 per thousand. In addition, a recent article in the Journal of the American Medical Association stated that the risk of cancer is lower than was previously thought—about 1 per several thousand. Elliot, Risk of Cancer, Dysplasia for DES Daughters Found ‘Very Low', 241 J.A.M.A. 1551 (1979)Google Scholar.

¹⁹ Sheiner, supra note 11, at 965. See also note 5 supra and accompanying text.

²⁰ Hew is now called the Department of Health and Human Services.

²¹ The bulletin stated:

c. The labeling for all diethylstilbestrol preparations, as well as closely related congeners (including dienestrol, hexestrol, benzestrol, and promethestrol), must contain the following as a Contraindication:

Contraindication.

36 Fed. Reg. 21,538 (1971). The required warning was amended in 1975 to include a warning that DES can cause vaginal adenosis. 40 Fed. Reg. 32,773 (1975).

²² It is interesting to note that DES is still used today. One court noted that “it is presently approved for use as an estrogen replacement in cases of hormone deficiency; therapy for menopausal symptoms; treatment of some cases of cancer, and suppression of lactation. It is also the major ingredient in the ‘morning after’ pill, a post coital contraceptive.” Lyons v. Premo Pharmaceutical Laboratories, Inc., 179 N.J. Super. 183, 191-92, 406 A.2d 185, 189 (1979).

²³ “There are at least 150 lawsuits pending in courts around the country against companies that made DES.” N.Y. Times, Oct. 15, 1980, at D3, col. 1. The suits generally raise three theories of liability, including negligence, breach of warranty, and strict products liability. See, e.g., Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert, denied, 101 S. Ct. 285 (1980); Diamond v. E.R. Squibb & Sons, Inc., 366 So. 2d 1221 (Fla. 1979). Although plaintiffs plead these theories of liability, courts have not treated each theory separately for statutes of limitations purposes. Goodman v. Mead Johnson & Co., 534 F.2d 566, 570 (3rd Cir. 1976), cert, denied, 429 U.S. 1038 (1977); Hornung v. Richardson-Merrill, Inc., 317 F. Supp. 183, 184 (D. Mont. 1970).

²⁴ See McCreery v. Eli Lilly & Co., 87 Cal. App. 3d 77, 150 Cal. Rptr. 739 (1978). To satisfy her prima facie case, the plaintiff must prove that the defendant's product caused the injury.

²⁵ See, e.g., Morrissy v. Eli Lilly & Co., 76 Ill. App. 3d 753, 394 N.E.2d 1369 (1979) (class action suit denied). Potential DES class action suits have had difficulty meeting the requirement of predominance of common questions. See Fed. R. Civ. P. 23(b)(3).

²⁶ See Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert, denied, 101 S. Ct. 285 (1980).

²⁷ The joint enterprise theory allows DES plaintiffs to bring suit even though they cannot identify the manufacturer of the particular DES that their mothers took. The theory is that the drug companies acted in concert, by pooling their research, in producing DES, and that thus, they are jointly liable for the plaintiffs’ injuries. If a jury were to award damages, the damages could be apportioned according to the market share each drug company had at the time the mothers took the drug. See Sheiner, supra note 11, for a more extensive discussion of the joint enterprise theory.

²⁸ See Payton v. Abbott Laboratories, 86 F.R.D. 351 (D.C. Mass. 1980). For a discussion of the court's decision in Payton, see Note, Payton v. Abbott Laboratories: An Analysis of the Massachusetts DES Class Action Suit, 6 AM.J.L. & Med. 243 (1980)Google Scholar.

²⁹ See Thomas v. Ferndale Laboratories, Inc., 97 Mich. App. 718, 296 N.W.2d 160 (1980) (the court agreed with the defendants and held that the statute of limitations barred the action). Ferrigno v. Eli Lilly & Co., 175 N.J. Super. 551, 420 A.2d 1305 (1980) is on appeal and the parties have argued the statutes of limitations questions. In Payton v. Abbott Laboratories, 86 F.R.D. 351 (D.C. Mass. 1980), the court in the order for notice to class members stated that 13 issues would be resolved in the class action suit, including whether and for what periods claims of plaintiff class members are barred by the statutes of limitations.

³⁰ Cristiani v. City of Sarasota, 65 So. 2d 878 (Fla. 1953) (statute of limitations begins to run at time of accident or misfortune even though the injury may not materialize until later).

³¹ See, e.g., Daniels v. Evans, 107 N.H. 407, 224 A.2d 63 (1966).

³² There are many medical malpractice cases in which the patient did not discover the doctor's negligence until long after the negligent treatment. See, e.g., Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964) (physician operated on patient in 1946 and left sponge in body; plaintiff did not discover existence of sponge until 1961); Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974) (negligent tubal ligation was not discovered until patient became pregnant nearly four years later). There are also many cases in which people took drugs which caused injuries years after the ingestion of the drug. See, e.g., Raymond v. Eli Lilly & Co., 412 F. Supp. 1392 (D.N.H. 1976), aff'd, 556 F.2d 628 (1st Cir. 1977) (plaintiff took oral contraceptives which caused her blindness years after she began taking the pills); Gilbert v. Jones, 523 S.W.2d 211 (Tenn. 1974) (plaintiff developed heart disease as a result of taking birth control pills for years before the injury developed).

³³ See, e.g., Raymond v. Eli Lilly & Co., 412 F. Supp. 1392 (D.N.H. 1976), aff'd, 556 F.2d 628 (1st Cir. 1977); Hornung v. Richardson-Merrill, Inc., 317 F. Supp. 183 (D. Mont. 1970); Schenebeck v. Sterling Drug, Inc., 291 F. Supp. 368 (E.D. Ark. 1968), aff'd, 423 F.2d 919 (8th Cir. 1970); Yoshizaki v. Hilo Hosp., 50 Hawaii 150, 433 P.2d 220 (1967).

³⁴ Lewey v. H.C. Frick Coke Co., 166 Pa. 536, 31 A. 261 (1895). Lewey, the defendant, dug a shaft beneath the plaintiff's land and began to mine the plaintiff's coal. The plaintiff could not have discovered the trespass, but became aware of it 7 years later and brought the action. The defendant raised the statute of limitations as a defense, claiming that the statute of limitations began to run when the trespass first occurred. The court stated that to hold that the statute of limitations began to run at the date of the trespass would “take away the remedy of the injured party before he can know that an injury has been done to him. A result so absurd and so injust ought not to be possible.” Id. at 546, 31 A. at 263. The court held that the statute of limitations runs only from the discovery of the injury or from a time when the plaintiff might have discovered the injury. The court, looking to the purpose behind the statute of limitations, said that the “mischief that the statute was intended to remedy was delay in the assertion of a legal right which it was practicable to assert.” Id. at 542, 31 A. at 262.

³⁵ 166 Pa. 536, 31 A. 261 (1895).

³⁶ Id. at 547, 31 A. at 263.

³⁷ 337 U.S. 163 (1949).

³⁸ Urie v. Thompson, 337 U.S. 163 (1949). The defendant claimed that the plaintiff, having been exposed to silica dust for more than thirty years, must have contracted silicosis years ago, and that his cause of action, therefore, accrued more than three years (the statutory period) before he brought the suit. The Supreme Court held that Urie's cause of action should not be barred because there was no suggestion that he should have known he had silicosis at any earlier date.

³⁹ The Court in Urie stated that the traditional purpose of statutes of limitations is to require the assertion of claims within a specified period of time after notice of the invasion of legal rights. Id. at 170.

⁴⁰ Id. at 169.

⁴¹ Id.

⁴² Among the most common of the medical malpractice cases in which the discovery rule has been applied are cases in which a physician leaves an instrument in the patient's body after surgery which the patient does not discover until after the statutory period would have expired. See, e.g., Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 497-98, 389 P.2d 224, 232 (1964) (doctor left sponge in plaintiff's body; court held cause of action accures when patient learns, or should have learned, of the presence of the foreign object); Fernandi v. Strully, 35 N.J. 434, 450, 173 A.2d 277, 286 (1961) (doctor left wing nut in plaintiff's body after performing hysterectomy; court held that the cause of action accrues when the plaintiff has reason to know about the presence of the foreign object). Other medical malpractice cases in which the discovery rule has been applied include cases where surgery was performed negligently. See, e.g., Lipsey v. Michael Reese Hosp., 46 Ill. 2d 32, 40, 262 N.E.2d 450, 455 (1970) (court held that cause of action accrued when patient discovered that hospital negligently performed a biopsy and told patient that the tumor was benign when in fact it was malignant).

⁴³ See Hendrickson v. Sears, 495 F.2d 513, 514 (1st Cir. 1974) (cause of action against attorney for erroneous title certification accrues when plaintiff reasonably should have discovered error).

⁴⁴ See, e.g., Cannon v. Sears Roebuck & Co., 374 Mass. 739, 374 N.E.2d 582, 584 (1978) (defective ladder bought 9 years before it collapsed and caused injuries; court held that statute of limitations runs from time of injury, not time of manufacture or sale, so as not to bar suits before facts arose on which plaintiff could assert claim for relief). The discovery rule also has been applied in drug cases where the injury caused by the drug did not develop until years later. See, e.g., Schenebeck v. Sterling Drug, Inc., 291 F. Supp. 368, 375-76 (E.D. Ark. 1968), aff'd, 423 F.2d 919 (8th Cir. 1970) (the drug Aralen caused permanent eye damage years after the drug was first taken; the court held that the cause of action accrues when the plaintiff has awareness of both the injury and the causal connection between the injury and the drug).

⁴⁵ See, e.g., Portis v. United States, 483 F.2d 670 (4th Cir. 1973); Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973).

⁴⁶ The following state statutes apply discovery rules in medical malpractice cases: Ala. Code Tit. 6, § 5-482 (1975); Colo. Rev. Stat. § 13-80-105 (Cum. Supp. 1979); Conn. Gen. Stat. Ann. § 52-584 (West Cum. Supp. 1980); Ill. Ann. Stat. ch. 83, § 22.1 (Smith-Hurd 1980); Mo. Ann. Stat. § 516.105 (Vernon 1976). See also Leech v. Bralliar, 275 F. Supp. 897 (D. Ariz. 1967); Huysman v. Kirsch, 6 Cal. 2d 302,'57 P.2d 908 (1936); Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944); Layton v. Allen, 246 A.2d 794 (Del. 1968); City of Miami v. Brooks, 70 So. 2d 306 (Fla. 1954); Yoshizaki v. Hilo Hosp., 50 Hawaii 150, 433 P.2d 220 (1967); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 223 (1964); Charischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94 (1967); Tomlinson v. Siehl, 459 S.W.2d 166 (Ky. 1970); Perrin v. Rodriguez, 153 So. 555 (La. 1934); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Franklin v. Albert, 49 U.S.L.W. 2310 (Mass. S.J.C. 1980); Dyke v. Richard, 360 Mich. 739, 213 N.W.2d 185 (1973); Johnson v. St. Patrick's Hosp., 148 Mont. 125, 417 P.2d 469 (1966), aff'd, 152 Mont. 300, 448 P.2d 729 (1968); Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962); Brown v. Mary Hitchcock Memorial Hosp., 117 N.H. 739, 378 A.2d 1138 (1977); Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961); Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 242 N.E.2d 871, 301 N.Y.S.2d 23 (1967); Seitz v. Jones, 370 P.2d 300 (Okla. 1961); Berry v. Branner, 245 Or. 307, 422 P.2d 996 (1966); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968); Gilbert v. Jones, 523 S.W.2d 211 (Tenn. 1974); Ohler v. Tacoma Gen. Hosp., 92 Wash. 2d 507, 598 P.2d 1358 (1979); Morgan v. Grace Hosp. Inc., 149 W. Va. 783, 144 S.E.2d 156 (1965) (cases applying discovery rules in medical malpractice cases).

⁴⁷ The following courts have applied a discovery rule in products liability actions: G.D. Serale & Co. v. Superior Ct., 49 Cal. App. 3d 22, 122 Cal. Rptr. 218 (1975); Creviston v. General Motors, 225 So. 2d 331 (Fla. 1969); Williams v. Brown Mfg. Co., 45 Ill. 2d 418, 261 N.E.2d 305 (1970); Louisville Trust Co. v. Johns-Manville Prod. Corp., 580 S.W.2d 497 (Ky. 1979); Harig v. Johns-Manville Prod. Corp., 284 Md. 70, 394 A.2d 299 (1978); Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170 (1977); Burd v. New Jersey Co., 76 N.J. 284, 386 A.2d 1310 (1978); Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978); McCroskey v. Bryant Air Conditioning, 524 S.W.2d 487 (Tenn. 1975); Ohler v. Tacoma Gen. Hosp., 92 Wash. 2d 507, 598 P.2d 1358 (1979).

⁴⁸ See Thrift v. Tenneco Chem., Inc., 381 F. Supp. 543 (N.D. Tex. 1974); Lipsey v. Michael Reese Hosp., 46 Ill. 2d 32, 262 N.E.2d 450 (1970). See also note 33 supra.

⁴⁹ See Schenebeck v. Sterling Drug, Inc., 291 F. Supp. 368 (E.D. Ark. 1968), aff'd, 423 F.2d 919 (8th Cir. 1970); Hornung v. Richardson-Merrill, Inc., 317 F. Supp. 183 (D. Mont. 1970).

⁵⁰ Bridgford v. United States, 550 F.2d 978, 981-82 (4th Cir. 1977) (until claimant has a reasonable opportunity to discover all the essential elements of the cause of action—duty, breach, causation and damages—the claim does not accrue). See also Fox v. Passaic Gen. Hosp., 135 N.J. Super. 108, 342 A.2d 859 (1975), aff'd, 71 N.J. 122, 363 A.2d 341 (1976) (cause of action will not accrue until plaintiff discovers basis for his claim). The court in Bonney v. Upjohn Co., 487 F. Supp. 486 (W.D. Mich. 1980), recently extended the discovery rule to toll the statute of limitations not only until discovery of the injury and its causal elements, but also until the plaintiff has some reason to believe that the defendant acted negligently.

⁵¹ See Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973) (before the discovery rule is applied, courts must consider all the relevant facts and circumstances, such as the nature of the injury, the availability of witnesses, the time elapsed, and whether the delay was deliberate or intentional).

⁵² Comment, Developments in the Law—Statutes of Limitations, 63 Harv. L. Rev. 1178, 1185 (1950)Google Scholar.

⁵³ Id. at 1185.

⁵⁴ Id.

⁵⁵ Birnbaum, “First Breath's” Last Gasp: The Discovery Rule in Products Liability Cases, 13 Forum 279, 290 (1978)Google Scholar, citing Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170 (1977).

⁵⁶ See Nelson v. Volkswagon of Am. Inc., 315 F. Supp. 1120 (D.N.H. 1970) (the repose of the manufacturer must give way to the welfare of the public even if this results in liability in perpetuity for the manufacturer).

⁵⁷ Drug companies should reasonably expect that harmful effects of their drugs will not become apparent for years. Birnbaum, supra note 55, at 290.

⁵⁸ See note 50 supra and accompanying text.

⁵⁹ See W. Prosser, The Law of Torts § 102 (4th ed. 1971).

⁶⁰ There is no actionable claim for personal injury until there is an injury or damage. Duke v. Housen, 589 P.2d 334 (Wyo. 1979), cert, denied, 444 U.S. 863 (1980).

⁶¹ See note 8 supra.

⁶² See note 5 supra.

⁶³ Memorandum Supporting Certification of the Plaintiff and Defendant Class Actions at 9, Payton v. Abbott Laboratories, 86 F.R.D. 351 (D.C. Mass. 1980). The plaintiffs in Payton have not yet developed cancer. They are suing for mental suffering and to recover economic losses.

⁶⁴ Many courts require that there be some physical impact before the plaintiff can recover for mental suffering. The courts, however, have found the required impact in minor contacts. W. Prosser, The Law of Torts § 54 (4th ed. 1971). The precancerous abnormalities that many DES daughters develop should be sufficient evidence of physical impact to allow recovery for mental suffering.

⁶⁵ Duke v. Housen, 589 P.2d 334 (Wyo. 1979), cert. denied, 444 U.S. 863 (1980).

⁶⁶ Id.

⁶⁷ See Martinez-Ferrer v. Richardson-Merrill, Inc., 105 Cal. App. 3d 316, 164 Cal. Rptr. 591 (1980).

⁶⁸ Id. at 324, 164 Cal. Rptr. at 595.

⁶⁹ Id.

⁷⁰ In Martinez-Ferrer, the plaintiff developed cataracts as a result of taking MER/29 and brought suit. However, 16 years before he developed cataracts, the plaintiff developed dermatitis and minor eye problems (which cleared up) which subsequently were linked to MER/29 use. The defendant claimed that the plaintiff's cause of action accrued when the plaintiff first suffered injuries caused by MER/29. The court said that the plaintiff should not be barred from suing for serious injuries. Id. at 321-27, 164 Cal. Rptr. at 593-97. See also Nelson v. Volkswagon of Am., Inc., 315 F. Supp. 1120 (D.N.H. 1970) (the repose of the manufacturer must give way to the welfare of the public, even if this results in perpetual liability for the manufacturer).

⁷¹ See, e.g., Raymond v. Eli Lilly & Co., 412 F. Supp. 1392 (D.N.H. 1976), aff'd, 556 F.2d 628 (1st Cir. 1977); Hornung v. Richardson-Merrill, Inc., 317 F. Supp. 183 (D. Mont. 1970); Schenebeck v. Sterling Drug, Inc., 291 F. Supp. (E.D. Ark. 1968), aff'd, 423 F.2d 919 (8th Cir. 1970).

⁷² See Martinez-Ferrer v. Richardson-Merrill, Inc., 105 Cal. App. 3d at 325, 164 Cal. Rptr. at 595.

⁷³ This Note does not deal with what would happen if a plaintiff sued for minor injuries and then later, but still within the statutory period, developed cancer, because of the unlikelihood that such a situation would occur.

⁷⁴ See note 3 supra and accompanying text.

⁷⁵ N.Y. Times, Oct. 15, 1980, at D3, col. 1. See also McCreery v. Eli Lilly & Co., 87 Cal. App. 3d 77, 150 Cal. Rptr. 730 (1978).

⁷⁶ The court in Thomas v. Ferndale Laboratories, Inc., 97 Mich. App. 718, 296 N.W.2d 160 (1980) held that the plaintiff's cause of action accrued in 1973 when the plaintiff was informed by a physician that she had developed adenosis which was caused by DES. However, the court also said that it would not postpone the running of the statute of limitations until the date that the plaintiff became aware of the identity of the drug manufacturer. The plaintiff in Thomas originally brought suit against Eli Lilly & Co., but subsequently was informed by her physician (who was also her mother's obstetrician) that the DES that her mother took was made by Ferndale. The plaintiff apparently made no showing as to why there was a delay in the identification of Ferndale as the manufacturer of the DES and the court held that her suit was barred. Possibly, if the plaintiff could have shown that she could not reasonably have identified Ferndale earlier, the court would not have barred the suit.

⁷⁷ Littell, A Comparison of the Statutes of Limitations, 21 Ind. L.J. 23, 25 (1945)Google Scholar.

⁷⁸ See, e.g., Alaska Stat. § 09.10.140 (Cum. Supp. 1979):

See also Ark. Stat. Ann. § 37-226 (1962); Del. Code Ann. tit. 10, § 8116 (1974).

⁷⁹ See, e.g., Colo. Rev. Stat. § 13-80-116 (West Cum. Supp. 1979) (“[i]f any person entitled to bring any action mentioned in this article is under the age of eighteen years …such person may bring said action within the time in this article respectively limited after the disability is removed.“). See also D.C. Code § 12-302 (1973); Utah Code Ann. § 78-12-36 (1953); Vt. Stat. Ann. tit. 12, § 551 (1973); Va. Code § 8.01-229 (Cum. Supp. 1980).

⁸⁰ See, e.g., Alaska Stat. § 09.10.140 (Cum. Supp. 1979); Ariz. Rev. Stat. Ann. § 12-502 (1979); Colo. Rev. Stat. § 13-80-116 (West Supp. 1979).

⁸¹ The North Carolina statute has been construed in Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964), to mean that the statute of limitations begins to run against an infant plaintiff who has a general guardian who could or should bring the action at the time the cause of action accrues. N.C. Gen. Stat. § 1-17 (1970).

⁸² see e.g., Ala. Code tit. 6, § 32-8 (1975) (statute of limitations will not be extended beyond twenty years from the time the cause of action accrued).

⁸³ See Littell, supra note 77.

⁸⁴ See Diamond v. E.R. Squibb & Sons, Inc., 366 So. 2d 1221 (Fla. 1979); Omni Flying Club v. Cessna Aircraft Co., 366 Mass. 154, 315 N.E.2d 885 (1974).

⁸⁵ See Bergstreser v. Mitchell, 577 F.2d 22 (8th Cir. 1978) (infant with action for preconception injuries entitled to benefit of tolling provisions).

⁸⁶ See Schenebeck v. Sterling Drug, Inc., 291 F. Supp. 368 (E.D. Ark. 1968), aff'd, 423 F.2d 919 (8th Cir. 1970); Hornung v. Richardson-Merrill, Inc., 317 F. Supp. 183 (D. Mont. 1970).

⁸⁷ See note 3 supra.

⁸⁸ See Lyons v. Premo Pharmaceutical Laboratories, Inc., 170 N.J. Super. 183, 406 A.2d 185 (1979) (the court stated that few malignancies were observed in girls of 14 to 22). See also note 7 supra.

⁸⁹ See note 3 supra.