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Court of Appeal, First District, Division 4, California.

Esther POMERANZ et al., Plaintiffs and Appellants, v. ABBOTT LABORATORIES et al., Defendants and Respondents.


Decided: April 15, 1987

LeRoy Hersh, Dan Bolton, Hersh & Hersh, A Professional Corp., San Francisco, for plaintiffs and appellants. Gudmundson, Siggins, Stone & Skinner, Richard J. Siggins, William S. Ginsburg, San Francisco, Haight, Dickson, Brown & Bonesteel, Robert L. Dickson, Ralph A. Campillo, Robert L. Kaufman, William S. Hanssen, Santa Monica, Tarkington, O'Connor & O'Neill, John D. O'Connor, Patrick J. Hogan, Adams, Duque & Hazeltine, Robert D. Phillips, Jr., Richard T. Davis, Jr., Sedgwick, Detert, Moran & Arnold, Kevin J. Dunne, Michael F. Healy, Bruce A. Edwards, San Francisco, for defendants and respondents.

In this wrongful death action, plaintiffs Esther and Morris Pomeranz 1 appeal from a judgment entered pursuant to an order granting summary judgment.   A defense motion for summary judgment had been granted because the wrongful death action was barred by the applicable one-year statute of limitations.  (Code Civ.Proc., § 340, subd. (3).) 2

On March 20, 1981, appellant filed her complaint against numerous pharmaceutical companies, seeking damages for the 1971 death of her daughter, Sarah (hereafter decedent), which she alleged was caused by prenatal exposure to the prescription medication, diethylstilbestrol (DES).   After the complaint was amended, and answers were filed by various defendants, defendant Eli Lilly and Company filed a motion for summary judgment, on the grounds that the action was barred by the statute of limitations.   Several defendants, including respondents Abbott Laboratories;  E.R. Squibb & Sons, Inc.;   Emons Industries, Inc.;   Rexall Drug Company;  and The Upjohn Company (hereafter respondents), joined in the motion.   The motion was granted, and summary judgment was entered.   A timely notice of appeal was filed.


Decedent Sarah Pomeranz was born in October 1952 in Denver, Colorado.   Her mother, Esther Pomeranz, had ingested DES prior to decedent's birth.   In August 1970, decedent was diagnosed as having inoperable adenocarcinoma, a cancer of the female reproductive tract.   She died in Denver on January 9, 1971.

In answer to interrogatories and in her deposition testimony, appellant admitted that during the fall of 1970, she was told by Dr. Gottesfeld that decedent's adenocarcinoma was due to the mother's exposure to DES.   Dr. Gottesfeld, an associate of the doctor who had treated both appellant and decedent, mentioned to appellant a then-recent study described in The New England Journal of Medicine, in which it was found that an association existed between maternal ingestion of DES during early pregnancy and the development of adenocarcinoma in the offspring years later.   Appellant said she was surprised by what Dr. Gottesfeld had told her, and that she felt angry and bitter towards her doctor for having prescribed the DES.

Also during that first year after decedent's death, appellant read an article in Time, which similarly indicated there was an association between maternal ingestion of DES and the development of vaginal cancer.   On reading the article, she called her daughter-in-law, Dr. Ruth Krauss, an OB/GYN specialist.   Appellant told Dr. Krauss her feeling that “there may have been some connection with what she learned in the article and Sarah's death.”   After Dr. Krauss had read both the medical journal and magazine articles, she told appellant that if decedent's cancer was the type of cancer described in the articles, “there was a possible association” between Mrs. Pomeranz's use of DES and the cancer.

Sometime between 1974 and 1976, appellant saw her daughter-in-law again, but she did not ask her for any more information about DES.   Dr. Krauss testified that she would have researched the matter further, had she been asked.   Also, before coming to California in 1978, appellant did not discuss the matter with any attorneys.

Upon her arrival in California in 1978, appellant enrolled as a first-year law student at Hastings College of the Law.   Her first-year courses included torts and civil procedure.   While taking a litigation course during the winter semester of 1981, she mentioned to her instructor (her present attorney), that her daughter had died from cancer caused by DES, and she acknowledged that she knew or believed this as early as January 1971.   After consulting with her instructor, this action was filed on March 20, 1981.

In opposition to defendants' motion for summary judgment, appellant submitted a declaration, in which she stated that at no time was she ever told by a treatment doctor that her daughter's cancer was caused by or associated with her exposure to DES.   She further declared that she was mistaken about the date of her conversation with Dr. Gottesfeld, as the medical journal article he had cited was not published “until sometime after 1970.” 3


A. Applicability of Statute of Limitations

Appellant contends that the summary judgment should be reversed, since respondents did not demonstrate that appellant discovered, or should have discovered, a factual basis for a suit more than one year before the action was filed.   In support of the summary judgment, respondents argue that the undisputed facts show that appellant's cause of action accrued in 1972, nine years before her complaint was filed, and therefore her action is barred by the one-year statute of limitations set forth in section 340, subdivision (3).

 A motion for summary judgment must be granted if all the affidavits, declarations, and other supporting papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  (§ 437c, subd. (c);  see Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 781–782, 205 Cal.Rptr. 62).

To support their position that the facts are undisputed, respondents cite appellant's verified response to an interrogatory in which she stated that in the fall of 1970, “DR. GOTTESFELD told [her] that her daughter had adenocarcinoma due to DES exposure as cited in a New England article that had come out at that time.”   Similar admissions were made by Mrs. Pomeranz at her deposition.   Appellant's daughter-in-law, Dr. Krauss, confirmed during her deposition that appellant was aware of the possible role of DES in her daughter's death no later than in 1971.

Appellant contends that a triable issue of fact was created by her declaration in opposition to the motion for summary judgment, to the effect that no treatment doctor had ever told her of the association between DES and her daughter's cancer, and that she was mistaken as to the date of her conversation with Dr. Gottesfeld.

 In examining the sufficiency of the declarations and other supporting papers filed in connection with a motion for summary judgment, we consider the respondents' papers strictly to determine if they establish their right to judgment by conclusively negating a necessary element of appellant's cause of action, and we normally construe appellant's declarations liberally to determine if appellant has established the existence of triable issues of facts.  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20, 112 Cal.Rptr. 786, 520 P.2d 10;  Lucchesi v. Giannini & Uniack, supra, 158 Cal.App.3d at p. 782, 205 Cal.Rptr. 62.)   Doubts as to the propriety of granting the motion are resolved against the moving party.  (Ibid.)  Further, the moving party has the burden of proving the absence of any triable issue of fact even though the burden of proof as to the particular issue may rest with the resisting party at the trial.  (Ibid.)  Finally, when discovery procedures, properly used, make it perfectly plain that there is no substantial issue to be tried, summary judgment is available for prompt disposition of the case.  (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 21, 112 Cal.Rptr. 786, 520 P.2d 10.)

 Appellant's declaration in opposition to the motion for summary judgment falls short of denying the material admissions made by her during discovery.   In view of those earlier admissions, the rule of liberal construction normally applied loses its efficacy and the granting or denial of the motion for summary judgment depends on issues of credibility.  (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 21, 112 Cal.Rptr. 786, 520 P.2d 10;  Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382, 121 Cal.Rptr. 768.)   Accordingly, when defendants can establish their defense with the plaintiff's admissions sufficiently to pass the strict construction test imposed on the moving party, the credibility of the admissions are valued so highly that the controverting affidavits or declarations may be disregarded as irrelevant, inadmissible or evasive.  (Ibid.)

In circumstances such as this, a trial court is free to accept a reliable admission against interest made during discovery and to reject a position taken later.   This choice is particularly called for where, as here, appellant waited from October 1982 until January 1985 to make changes in her testimony, when she was apparently inspired to do so by pressures of the pending motion for summary judgment.  (See Gray v. Reeves (1977) 76 Cal.App.3d 567, 574, 142 Cal.Rptr. 716.)   Thus, the trial court could properly reject the contents of appellant's declaration and find that the evidence was undisputed that she knew or should have known all facts necessary to commence the running of the statute of limitations at least one year before filing of the complaint in this action.

To avoid this result, appellant seeks to rely on Kensinger v. Abbott Laboratories (1985) 171 Cal.App.3d 376, 217 Cal.Rptr. 313, another DES case decided by division one of this court, in which it was concluded that the one-year statute of limitations in section 340, subdivision (3) begins to run “only when the plaintiff discovers or with reasonable diligence should have discovered the drug manufacturer's wrongful conduct.”  (Id., at p. 386, 217 Cal.Rptr. 313.)

 The Kensinger holding is a departure from prior law (see, e.g., Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897–899, 218 Cal.Rptr. 313, 705 P.2d 886;  Braham v. Sorenson (1981) 119 Cal.App.3d 367, 373, 174 Cal.Rptr. 39), and we are aware of no subsequent published case in California that has followed it.   As the Kensinger court itself acknowledged (id., 171 Cal.App.3d at p. 383, 217 Cal.Rptr. 313), the “established rule” in California is that the statute of limitations is not tolled by belated discovery of legal theories, as distinguished from belated discovery of facts.   It is the occurrence of a cognizable event rather than knowledge of its legal significance that starts the running of the statute of limitations.  (Id., at pp. 383–384, 217 Cal.Rptr. 313.)   Moreover, once a person becomes aware of facts which would make a reasonably prudent person suspicious, that person has a duty to investigate further, and is charged with knowledge which would have been revealed by such an investigation.  (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875, 191 Cal.Rptr. 619, 663 P.2d 177.)

 In this case, appellant was aware of medical journal and magazine articles concerning the association between DES and cancer as early as 1970 or 1971.   She discussed the matter with her daughter-in-law, Dr. Krauss, an OB–GYN specialist, and had opportunities over the next several years to pursue additional information regarding the possible connection between DES and her daughter's death.   Appellant acknowledged feelings of anger and bitterness over the situation at the time.   Despite this, appellant did nothing further to learn who was responsible for her daughter's death until she took a third-year law school litigation course from her present attorney in 1981.   Even if we applied the more liberal standard set forth in Kensinger, appellant had opportunities to, but did not, act with due diligence to discover the drug manufacturer's wrongful conduct several years previously.   The trial court therefore ruled correctly when it granted defendants' motion for summary judgment because the action was barred by the one-year statute of limitations.

B. Non-Revivability Doctrine

 Appellant admits that a cause of action previously barred by the statute of limitations is not revived when a prevailing and contrary rule of law is overturned and a new legal theory is established.  (Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, 99 Cal.Rptr. 129, 491 P.2d 1105.)   Yet she argues that the non-revivability doctrine has no application to DES litigation in the aftermath of the Supreme Court's decision in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.   Since her suit was filed within one year of that decision, she maintains her action is timely.

 A footnote from the Monroe decision seems applicable here:  “[Appellant] has not identified any civil case, and our independent research has disclosed none, in which the retroactive operation of a judicial decision—even a constitutional one—has been held to revive old causes of action on which the statute of limitations had already run.”  (Monroe v. Trustees of the California State Colleges, supra, 6 Cal.3d at p. 406, fn. 3, 99 Cal.Rptr. 129, 491 P.2d 1105.)   Absent any binding authority to the contrary, we must follow the Monroe decision.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

C. Doctrine of Equitable Tolling

 Appellant next contends that fundamental fairness and the absence of prejudice to respondents justifies applying the “equitable tolling” doctrine to this action.   Under that doctrine, a plaintiff may be relieved from the bar of a limitations statute “when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.”  (Addison v. State of California (1978) 21 Cal.3d 313, 317, 146 Cal.Rptr. 224, 578 P.2d 941.)   Applicability of the doctrine requires timely notice, lack of prejudice to the defendant, and reasonable and good faith conduct on the part of the plaintiff.  (Id., at p. 319, 146 Cal.Rptr. 224, 578 P.2d 941.)   The doctrine has been applied when, in lieu of filing a claim in a California court, the plaintiff has pursued a timely filed federal suit subsequently dismissed for lack of jurisdiction (ibid.), a workers' compensation claim (Elkins v. Derby (1974) 12 Cal.3d 410, 115 Cal.Rptr. 641, 525 P.2d 81), or an administrative remedy (Dillon v. Board of Pension Commrs (1941) 18 Cal.2d 427, 116 P.2d 37).

 As appellant has not shown that she pursued any alternative remedies, nor how she gave timely notice of her claim to respondents within the original statutory period, the doctrine is inapplicable to their case.

D. Action Not Tolled by Sindell

Finally, appellant contends the statute of limitations was tolled from August 1976, when the class action was filed in Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.   She relies on American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713, in which it was held “that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.”  (Id., at p. 554, 94 S.Ct. at p. 766.)

 In Sindell, the class consisted of “girls and women who are residents of California and who have been exposed to DES before birth and who may or may not know that fact or the dangers” to which they were exposed.   (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 593, fn. 1, 163 Cal.Rptr. 132, 607 P.2d 924, emphasis added.)   First, this action was not brought by the daughter who had been exposed to DES before birth, but by her parents in the form of a wrongful death action.   Appellant frankly concedes that as a wrongful death action, this suit does not strictly fit within the class definition of Sindell.   Moreover, neither decedent nor her parents were residents of California when the Sindell action was filed.   Indeed, decedent was never a resident of California, as she was conceived, born, grew up, treated, and died in Colorado.   Appellant did not move to California until 1978, seven years after decedent's death and two years after the Sindell class action was filed.   Thus, appellant could not have asserted that she was a class member who would have been a party had the Sindell matter been continued as a class action.  (American Pipe & Construction Co. v. Utah, supra, 414 U.S. at p. 554, 94 S.Ct. at p. 766.)   This claim is therefore without merit.


The judgment is affirmed.

Since the lead opinion correctly—in my view—determines that appellant does not come close to fitting under the protective umbrella of Kensinger v. Abbott Laboratories (1985) 171 Cal.App.3d 376, 217 Cal.Rptr. 313, I see no reason to examine whether that umbrella has holes.   Therefore I express no opinion concerning the correctness of my colleagues' position with respect thereto except that it is not the law of this case and is unnecessary.   In all other respects I join in the lead opinion and concur fully.


1.   Although Morris Pomeranz is a party to this appeal, for convenience, references hereafter will be made only to appellant Esther Pomeranz.

2.   All section references are to the Code of Civil Procedure.

3.   At plaintiff's request, we take judicial notice that the article in question was published on April 22, 1971.  (See 284 The New England Journal of Medicine 878 (1971).)

CHANNELL, Associate Justice.

ANDERSON, P.J., concurs.