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

Roberta Zucker MERTAN, Plaintiff and Appellant, v. E.R. SQUIBB & SONS, INC., et al., Defendants and Respondents.

Civ. 63611.

Decided: March 29, 1983

Schlifkin & Papell, Robert S. Schlifkin and Steven J. Kleifield, Los Angeles, for plaintiff and appellant. Haight, Dickson, Brown & Bonesteel, Robert L. Dickson, Roy G. Weatherup, Ralph A. Campillo, Los Angeles, and Joseph R. Zamora, Rosemead, for E.R. Squibb & Sons, Inc., defendant and respondent. Memering & DeMers, and Louis A. DeMers, Sacramento, for Upjohn Co., defendant and respondent.

Plaintiff, Roberta Zucker Mertan, suffering from cancer allegedly caused by prenatal exposure to diethylstilbestrol, appeals from a jury verdict in favor of defendants, E.R. Squibb & Sons, Inc., and The Upjohn Company, pharmaceutical corporations.   We have concluded that plaintiff should have been allowed to amend her complaint prior to trial to state a Sindell 1 cause of action.   Had such an amendment been allowed, it is reasonably probable that the trial would have produced a more favorable result for plaintiff.   Therefore, the judgment must be reversed.

Plaintiff filed suit against the drug manufacturing defendants on January 10, 1975.   Following several successful demurrers, plaintiff's fourth amended complaint alleged that defendants Eli Lilly and Co. (Lilly), E.R. Squibb & Sons, Inc. (Squibb), The Upjohn Company (Upjohn) and Boyle and Company 2 manufactured and marketed the synthetic estrogen diethylstilbestrol, commonly known as DES.   The complaint alleged that those defendants manufactured and distributed the drug for use in the prevention and control of complications of pregnancy.   Plaintiff's mother purchased DES on prescription of her physician in 1954 and, in 1973, plaintiff contracted cancer of the vagina and cervix.   The complaint contained causes of action for negligence, breach of express and implied warranties, and strict liability.

The matter was originally set for trial on December 11, 1979, within the five-year statute of limitations established by Code of Civil Procedure section 583, subdivision (b).   Thereafter, a motion for continuance was granted, and all parties waived the provisions of Code of Civil Procedure section 583, subdivision (b) to and including June 1, 1980, pending a decision by the Supreme Court in Sindell v. Abbott Laboratories.3  The trial was continued to April 22, 1980.

The pretrial motions for summary judgment brought by defendants alleged that the plaintiff could not identify the particular supplier of the DES which her mother had ingested.   The motions were denied on the ground that plaintiff might be able to identify the particular supplier by the time of trial.

On March 20, 1980, the Supreme Court issued its opinion in Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.   That case, based on facts similar to the instant proceedings, held that a plaintiff may recover even if she is unable to identify the manufacturer of the DES consumed by her mother.   The court held that if the plaintiff establishes that the named defendants in her action manufactured a substantial share of the DES taken by her mother, the burden of proof shifts to the defendants to establish that they could not have made the product which caused the plaintiff's injuries.  (Id., at pp. 610–612, 163 Cal.Rptr. 132, 607 P.2d 924.)

At the time of the Sindell decision, plaintiff herein had not established, and could not establish, which of the named defendants had in fact produced the drug ingested by her mother.   On April 4, 1980, plaintiff filed a motion seeking to amend her complaint to include a fifth cause of action, alleging a claim incorporating the theory of recovery propounded by the Sindell court.   Defendants argued that the addition of the “market share liability” allegations would require the striking of the at-issue memorandum and a continuance to conduct additional discovery which would be impossible due to the running of the five-year mandatory dismissal provisions of Code of Civil Procedure section 583, subdivision (b).

 The motion came on for hearing on April 11, 1980.   The court stated that plaintiff could amend her complaint as requested on condition that the at-issue memorandum be stricken to enable defendants to conduct further discovery.   Recognizing that the five-year statute of limitations would compel dismissal of the action within two months, plaintiff withdrew her motion to amend the complaint,4 and proceeded to trial without the advantage of having stated a Sindell cause of action.

Additionally, most of the theories upon which plaintiff had intended to proceed, including joint and concerted action by the defendants and a theory of enterprise liability, were rejected by the Supreme Court in Sindell.   The plaintiff, therefore, proceeded on a theory of licensing.   That theory may be briefly summarized as follows:

In 1939, these defendants were two of 12 drug companies that applied to the Food and Drug Administration (FDA) for permission to market DES in the United States.   The FDA rejected those applications and requested that the 12 companies form a committee to collect and organize all clinical data available on the drug and submit it jointly for the creation of a master file.   When applications were resubmitted by them in 1941, the FDA requested the applying companies to give permission to all future applicants to rely on the data contained in the master file in their applications.

Plaintiff argued that defendants, in compiling the research, were licensors of all manufacturers of DES in the United States.

Plaintiff's jury trial, which began on May 8, 1980, established that plaintiff's mother took 25 milligrams of DES every four hours for four to five months during her pregnancy.

Plaintiff, apparently healthy at birth, began hemorrhaging at age 19.   Examinations disclosed a condition known as clear-cell adenocarcinoma, cancer of the vagina and cervix.   She immediately underwent surgery followed by radiation therapy.   Four years later, a recurrence of the cancer was diagnosed, and she underwent radical surgery, removing all tissue in her pelvis, including her bladder, rectum, and the remainder of her vagina.

Expert testimony was introduced concerning the relationship between the ingestion of DES by mothers and the tragically commonplace incidence of adenocarcinoma in their daughters.

On August 15, 1980, the jury returned a defense verdict which was a general verdict, unaccompanied by any special interrogatories.   Although unexplained in the record, it may be assumed that the jury was not persuaded to impose liability upon defendants as licensors of all DES manufacturers.

Plaintiff contends that she should have been allowed to amend her complaint to state a cause of action under Sindell.   We agree.

Although the five-year statute of limitations found in Code of Civil Procedure section 583, subdivision (b) is often referred to as mandatory, this plaintiff falls comfortably within the judicial exception which permits a trial beyond the five-year period where it is impracticable or futile to bring the case to trial earlier.  (See General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 94, 52 Cal.Rptr. 460, 416 P.2d 492.)

Here, trial was delayed while the parties awaited a decision from the California Supreme Court.   Although we have found no case precisely on these facts, it is irrefutable that these were circumstances beyond plaintiff's control, as discussed in General Motors Corp. v. Superior Court, supra, 65 Cal.2d 88, 52 Cal.Rptr. 460, 416 P.2d 492.

All parties to the instant lawsuit recognized the significance of the anticipated Sindell decision.   Earlier, they had stipulated to a continuance pending this critical decision.   Without Sindell, plaintiff was forced to proceed to trial against several named defendants, unable to prove that anyone of them had in fact caused her injury.   Prior to Sindell, no recovery under those circumstances was permissible.

The existence of problems beyond a plaintiff's control was discussed by the Supreme Court in Hocharian v. Superior Court (1981) 28 Cal.3d 714, 720, 170 Cal.Rptr. 790, 621 P.2d 829:  “ ‘It is the policy of the law, as declared by the courts, that when a plaintiff exercises reasonable diligence in the prosecution of his action, the action should be tried on the merits.   This policy is counter-balanced, however, by the policy declared by the Legislature and the courts that when a plaintiff fails to exercise reasonable diligence in the prosecution of his action it may be dismissed by the trial court.’   (Italics added.)”  (Quoting Black Bros. Co. v. Superior Court (1968) 265 Cal.App.2d 501, 505, 71 Cal.Rptr. 344.)  “Thus, the idea of reasonable diligence has been the cornerstone of statutory analysis of section 581a.  [Citations.]”  (Hocharian v. Superior Court, supra, 28 Cal.3d at p. 720, 170 Cal.Rptr. 790, 621 P.2d 829;  italics in original.)

The Hocharian court discussed the statute's exceptions and concluded:  “In applying any of these exceptions to a given factual situation, the critical question is whether a plaintiff used reasonable diligence in prosecuting his or her case.   The particular factual context or cause of the noncompliance should not be determinative;  rather, the primary concern must be the nature of the plaintiff's conduct.”  (Hocharian v. Superior Court, supra, 28 Cal.3d at p. 722, 170 Cal.Rptr. 790, 621 P.2d 829;  fns. omitted.   To the same effect see Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 550, 86 Cal.Rptr. 297, 468 P.2d 553;  Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 546, 105 Cal.Rptr. 339, 503 P.2d 1347, disapproved on other grounds in Hocharian v. Superior Court, supra, 128 Cal.3d at p. 722, 170 Cal.Rptr. 790, 621 P.2d 829.)

It is impossible to identify every situation in which a mechanical application of Code of Civil Procedure section 583 is likely to produce injustice.

 As the Supreme Court has stated in an earlier decision, the statute's application must be evaluated in light of all the circumstances presented in each case.  (Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 168 P.2d 665.)

 It should therefore be understood that by this decision we are not enunciating any new principle with regard to the effect of pending court decisions on Code of Civil Procedure section 583.   We have simply concluded that under the circumstances here presented plaintiff could not have reasonably been expected to amend her complaint at any earlier time.   She filed to shorten time and amend her complaint within days after the Supreme Court decision was rendered and before it had become final.   The magnitude of this decision was such that the granting of her motion should have been considered paramount to the limitations of Code of Civil Procedure section 583.

We reject defendants' contention that plaintiff should have anticipated the Sindell decision and filed her amended complaint well in advance of the running of the five-year statute.   Requiring of litigants this kind of prescience exceeds the Supreme Court's criterion of reasonable diligence.   This is particularly true where the Sindell decision implies that its theory of recovery was neither pleaded nor asserted by the plaintiffs in that case.   (See Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 594, 595, 598, 163 Cal.Rptr. 132, 607 P.2d 924.)

Having concluded that the failure of plaintiff to amend her complaint earlier was due to circumstances beyond her control, we hold that the trial court should have authorized the amendment of the complaint and tolled the provisions of Code of Civil Procedure section 583, subdivision (b), to allow all parties adequate time to prepare for trial.   Having found error, we have analyzed the record of the trial in order to determine whether that error was prejudicial to plaintiff.   We have concluded that it was.

Defendants argue in their briefs that they successfully established at trial that they did not supply, and could not have supplied, the DES which was ingested by plaintiff's mother;  that the jury must have concluded that the only liable drug supplier was Lilly, no longer a party to the action.   The record does not support so broad a conclusion.

The evidence introduced on the issue of the identity of the supplier of the drugs established that they were purchased in 1954 at either White Oak Pharmacy, Thrifty Drug Store, Sav-On Drugs, or Oakdale Pharmacy, all located in Reseda, California.   Plaintiff's father testified that shortly after his daughter contracted cancer, he visited all of the pharmacies which had dispensed the drug;  none kept records which were more than three years old, and therefore no verification could be obtained.

With respect to each of these pharmacies, the following evidence was introduced:

 White Oak Pharmacy:

Plaintiff's mother testified that most of the prescriptions were filled at White Oak.   Plaintiff's father testified that he began filling the DES prescriptions there, but had a disagreement with the pharmacist over a prescription for Maalox some time in 1954, and thereafter switched to Rexall and Sav-On to fill prescriptions.

Maurice Solomon, the pharmacist at White Oak Pharmacy from 1951 on, testified that through 1955, he carried only Lilly DES;  he never carried Upjohn or Squibb.   On cross-examination, he admitted that, if a patient's doctor prescribed DES by a brand name, for example, Upjohn DES, he would either get the doctor's permission to give Lilly or order the brand prescribed.   A minimum order of DES was 100 tablets;  if any were left over, he might dispense them to another customer who brought in a generic prescription.

 Thrifty Drug Store:

The defense established, by certification from the California Board of Pharmacy, that this Thrifty Drug Store did not open until 1956.

 Sav-On Drugs:

Plaintiff's mother testified that her prescriptions for DES in 1954, were sometimes purchased at that drug store.   Plaintiff's father offered the same testimony.   In answers to interrogatories, plaintiff stated that her mother purchased the drug at three pharmacies, including Sav-On in Reseda.

No testimony was offered concerning the brand of DES dispensed by this pharmacy in 1954.

 Oakdale Pharmacy:

Plaintiff's father testified that he sometimes filled DES prescriptions at this pharmacy in 1954.   Neither plaintiff, in her answers to interrogatories, nor plaintiff's mother, listed this pharmacy as one at which prescriptions were filled.

Mr. Wishni, the pharmacist at Oakdale Pharmacy from 1953 to 1977, testified that he carried only Lilly and APC Brand DES.   He never carried Squibb or Upjohn.   He testified that Lilly DES tablets were either white or red.   Plaintiff's mother testified that she could not recall the color or description of the pills she took, but her impression was that she took red pills and white pills.

 This evidence, if believed by the jury, could support a finding that plaintiff's mother purchased either Squibb or Upjohn DES in 1954 from White Oak or Sav-On Drugs.

We need not reach the issue of whether allowing the testimony of Tobias Klinger, as an expert witness without prior notice to plaintiff, was in violation of Code of Civil Procedure section 2037.   If error was committed, it was harmless.   The testimony which was presented to the jury, as distinguished from the testimony at the Evidence Code section 402 hearing, consisted of a recitation of the procedures followed in submitting a new drug application, the requirements of the FDA for approval, and subsequent application requirements when a modification was sought.   It was not, as perceived by plaintiff, an explanation of the law of license.

Plaintiff will be given an opportunity on retrial to attempt to established that defendants distributed a substantial share of DES on the market in 1954.

The judgment is reversed.


1.   Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. den., 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140.

2.   Plaintiff settled with Lilly in January 1980, prior to trial, and with Boyle and Company during trial.   The actions involving these defendants were dismissed;  therefore, they are not parties to this appeal.

3.   Squibb correctly contends that the record does not reflect this reason for the continuance and waiver.   However, Upjohn in its brief admits that the parties sought the continuance “[b]ecause of the pending Supreme Court decision in Sindell ․”

4.   Defendants argue that the record is inadequate to permit the court to reach this issue.   No reporter's transcript of the hearing is available, and therefore the court's ruling is not detailed in the record.   The clerk's transcript reflects simply that plaintiff's motion was withdrawn by counsel.   The briefs of plaintiff and of Upjohn, however, contain detailed statements of what transpired at that hearing.   Further, counsel for Squibb explained to the trial court, during a hearing on the motion for judgment on the pleadings, what had transpired at that earlier hearing.   We are persuaded that the recitation of the sequence of events set out hereinabove is an accurate one and that this court need not treat the withdrawal of plaintiff's motion to amend as a voluntary act from which no appeal could be taken.

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.