On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Matthews, Furman and Havey. The opinion of the court was delivered by Havey, J.A.D.
The question raised by this appeal, on leave granted,*fn1 is whether New Jersey, as the forum State, should apply its statute of limitations and "discovery rule" to a tort action when the underlying wrongful act occurred in the state of New York, while plaintiff was a New York domiciliary, but who, after the New York statute of limitations had run, established a New Jersey domicile and thereafter instituted this suit.
On appeal, defendant drug companies challenge the trial court's application of our statute of limitations and "discovery rule" and consequent denial of their motions for summary judgment, arguing that the trial court should have "borrowed" New York's limitations statute which would have time-barred plaintiff's action, since the "discovery rule" is not recognized in that state.
We affirm the trial court's denial of summary judgment. Accepting the legitimacy of plaintiff's assertion that he was a New Jersey domiciliary when this action was instituted, we hold that New Jersey has a sufficient state governmental interest in the compensation of its domiciliaries to apply its statute of limitations and "discovery rule." We conclude that the threshold question of plaintiff's domicile must be addressed and, accordingly, remand for that purpose.
The record before the trial court on the summary judgment motion disclosed the following facts which were accepted as true. Because of episodes of bleeding during her early pregnancy with plaintiff, plaintiff's mother was hospitalized in April 1953 and was administered the drug Diethylstilbestrol (DES). Thereafter, from time to time during her pregnancy, she ingested the drug prescribed to her by her treating physician.
Plaintiff was born in September 1953 in Brooklyn, New York, and remained a Brooklyn resident while receiving his elementary and secondary education in New York City schools. He earned a degree from Vassar College in New York and a law degree from Boston College Law School. He thereafter returned to Brooklyn, resided with his mother, and commenced practicing law in Manhattan.
On August 27, 1979, after a physical examination four days earlier, plaintiff was admitted to Columbia Presbyterian Hospital and underwent surgery for testicular cancer, resulting in the removal of his right testicle. Plaintiff claims that during his hospitalization, treating physicians advised him that his condition was related to in utero exposure to DES. Upon release from the hospital, plaintiff returned home to Brooklyn and resumed his law practice in Manhattan on a limited basis in December 1979.
In March 1980, plaintiff consulted a New York law firm concerning the possibility of bringing a law suit in connection with his medical condition, and in the fall of 1980, consulted a New Jersey attorney. In December 1980, he moved to Jersey City to a multi-family apartment as a month-to-month tenant and, on July 23, 1981 filed this action against defendants, eight pharmaceutical companies*fn2 doing business in New Jersey, which marketed DES in 1953. Plaintiff's complaint sounds in negligence, strict liability and breach of warranty, the gravamen of which is that his in utero exposure to the drug was a proximate producing cause of his testicular cancer. He seeks compensatory and punitive damages.
All parties acknowledge that plaintiff's action is time-barred under New York law. The New York statute of limitations prescribes a three-year period from the date of accrual for the
commencement of a personal injury action, which is tolled until the injured party reaches the age of 18. N.Y.C.P.L.R. §§ 208, 214 (McKinney 1984). New York has no discovery rule. See Manno v. Levi, 94 A.D. 2d 556, 465 N.Y.S. 2d 219 (1983), aff'd 62 N.Y. 2d 888, 467 N.E. 2d 517, 478 N.Y.S. 2d 853 (1984). Accepting as true plaintiff's factual assertion that he was advised for the first time while hospitalized in August 1979 that his testicular cancer was associated with in utero exposure to DES, plaintiff has made a prima facie showing of the application of New Jersey's discovery rule and thus his action would be timely if the New Jersey two-year limitations statute applies, since the statute ...