On appeal from the Superior Court, Law Division, Burlington County.
Pressler, Dreier and Gruccio. The opinion of the court was delivered by Pressler, P.J.A.D.
Plaintiff Sharon P. Hadden, whose husband sues per quod, brought this pharmaceutical products liability action against defendant Eli Lilly and Company claiming that she sustained in utero gynecological injury as a result of her mother's ingestion of diethylstilbestrol (DES) during the pregnancy. She appeals from a summary judgment dismissing her complaint as untimely filed. We reverse.
The facts of this controversy require us to consider the relationship between N.J.S.A. 2A:14-21, which provides for the tolling of the statute of limitations during infancy, and the so-called discovery rule, which defers the accrual of the cause of action for limitations purposes until the injured person
knows or should know of the existence of a cause of action. See Lopez v. Swyer, 62 N.J. 267 (1973). The anomaly here is that, as we construe the significance of the operative facts, application of the tolling provision would permit a longer period of time in which to commence the action than would be allowable under the discovery rule. For the reasons set forth herein, we hold that in such circumstances the injured person is entitled to the benefit of the limitations rule affording the longer time.
For purposes of considering defendant's summary judgment motion, the following facts may be assumed. Plaintiff was born on February 11, 1954. Her mother, Dorothy Prizer, had, during the course of her pregnancy and pursuant to her physician's prescription, taken a DES product manufactured by defendant. In July 1974 plaintiff, who until that time had been asymptomatic, underwent a routine premarital gynecological examination which revealed the presence of abnormal cell growth in her cervix. Surgery ensued. Her physician, suspecting DES as the cause of the problem, reviewed her mother's medical records and ascertained that she had taken defendant's DES product while pregnant with plaintiff. The physician promptly discussed these matters with plaintiff and her family, explaining that plaintiff had to be closely watched because of the continuing DES risks. The trial judge found that plaintiff knew by August 1974 that she had been injured in utero by her mother's ingestion of DES. That finding was adequately supported by the evidence adduced at the preliminary evidential hearing.
The complaint was filed in October 1976, two years and three months after the date on which plaintiff was found to have discovered her cause of action. Rejecting plaintiff's argument that under N.J.S.A. 2A:14-21, she had until February 11, 1977, her twenty-third birthday, for the timely filing of her complaint, the trial judge concluded that since she had already reached her majority at the time she discovered the cause of action, it then accrued and the two-year statute of limitations started to run.
This holding rested upon the perception that the tolling provision of N.J.S.A. 2A:14-21 was inapplicable. We disagree. It is our conclusion that under the circumstances here, the tolling statute both applies and is controlling.
The problem before us is complicated by the fact that during plaintiff's minority the age of majority was changed from 21 to 18. See N.J.S.A. 9:17B-1 to 3, (effective January 1, 1973). N.J.S.A. 2A:14-21 tolls the running of the statute of limitations on an infant's claim until age 21. Although that statute had not been amended to conform with N.J.S.A. 9:17B-1, et seq., the Legislature recognized the potential transition difficulties by expressly providing in N.J.S.A. 9:17B-2(e) that its enactment of N.J.S.A. 9:17B-1, et seq., was not intended to "[a]lter the provisions of N.J.S. 2A:14-21 with respect to the time within which a person under 21 years of age on January 1, 1973 may commence an action . . . under a cause or right accrued prior to said date." See also Tyson v. Groze, 172 N.J. Super. 314 (App.Div.1980).
Plaintiff was not quite 19 years old on January 1, 1973. If, therefore, her cause of action had accrued prior to that date, she would be entitled under the plain language of N.J.S.A. 9:17B-2(e) to the full benefit of the 21-year-old tolling provision of N.J.S.A. 2A:14-21, and the statute of limitations would not have run until her twenty-third birthday. Hence, her complaint would be timely.
The issue then is whether plaintiff's action accrued prior to 1973. At least for purposes of this motion, we can assume that the injury which is the gravamen of the complaint was inflicted on ...