Albers, Katherine M. v. Eli Lilly & Company ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2320
KATHERINE M. ALBERS,
Plaintiff-Appellant,
v.
ELI LILLY & CO.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 02 C 884—Milton I. Shadur, Judge.
____________
ARGUED DECEMBER 10, 2003—DECIDED JANUARY 6, 2004
____________
Before EASTERBROOK, MANION, and KANNE, Circuit
Judges.
PER CURIAM. More than a decade after she was diagnosed
with a malformed uterus that the physician attributed to
her mother’s ingestion of DES, Katherine Albers filed this
tort action seeking damages from the drug’s maker, Eli
Lilly & Company. Lilly invoked the statute of limitations,
which (the parties agree) is supplied by the local law of the
District of Columbia because the suit was filed there and
then transferred to Illinois under 28 U.S.C. §1404(a). The
District of Columbia’s rule has been authoritatively stated:
In every case, the plaintiff has a duty to investigate
matters affecting her affairs with reasonable
2 No. 03-2320
diligence under all of the circumstances. Once the
plaintiff actually knows, or with the exercise of
reasonable diligence would have known, of some
injury, its cause-in-fact, and some evidence of
wrongdoing, then she is bound to file her cause of
action within the applicable limitations period,
measured from the date of her acquisition of the
actual or imputed knowledge.
Diamond v. Davis, 680 A.2d 364, 381 (D.C. App. 1996). See
also Bussineau v. Georgetown College, 518 A.2d 423 (D.C.
App. 1986). Albers concedes that she knew both her injury
and its cause well outside the period of limitations (three
years, see D.C. Code §12-301(8)) but denies that she had
“some evidence of wrongdoing” until 1999 or 2000 when she
saw in a newspaper an attorney’s advertisement about DES.
The district court granted summary judgment to Lilly,
holding that, even if Albers lacked actual awareness until
then, reasonable diligence would have led a person to com-
mence investigation in 1991—the year her doctor diagnosed
her as having a “classic T-shaped, DES exposed uter-
us”—and that even a modest investigation would have
turned up “some evidence” that administration of DES to
pregnant women could cause defects in their daughters’
reproductive systems. 257 F. Supp. 2d 1147 (N.D. Ill. 2003).
That made the suit untimely.
On appeal, as in the district court, Albers’s principal
submission is that until 1999 or 2000 she was ignorant of
any potential wrongdoing. We may assume that this is so,
but D.C. law establishes an objective rather than a sub-
jective standard. We do not think that any reasonable jury
could disagree with the proposition that a person who
knows that she has a serious medical condition (here, one
that has apparently rendered her infertile) and also knows
the condition’s cause, would investigate to learn whether
wrongful conduct played a role. Albers could have asked her
doctor, though apparently she did not. In 1991, information
No. 03-2320 3
about DES was readily available in the law reports (litiga-
tion about DES has been ongoing, and producing substantial
awards, ever since the 1960s) and the press (books as well
as newspaper stories). More recently, though still more
than three years before suit was filed, medical sites on the
Internet have automated such searches. Albers does not
dispute the district court’s conclusion that even a rudi-
mentary search would have turned up evidence of wrongdo-
ing. Her only contention is that she did not need to search.
That line of argument, if adopted, would effectively abolish
the D.C. objective rule allowing the imputation of evidence
that would have been gathered from a reasonable search
and would convert the standard to an entirely subjective
one. Like the district judge, we hold that there is no
material dispute requiring a jury’s resolution. On the
undisputed facts, a reasonable person would have com-
menced an inquiry in 1991 and swiftly would have found
some evidence of wrongdoing. Thus the claim accrued in
1991, and this suit is untimely.
One final issue requires some attention. After a draft of
this opinion had been written, Albers moved to dismiss the
appeal under Fed. R. App. P. 42(b), which provides in part:
“An appeal may be dismissed on the appellant’s motion on
terms agreed to by the parties or fixed by the court.” The
parties had not agreed on terms, and Lilly filed a response
making it clear that it would not do so. In Lilly’s view, the
law firm representing Albers, which has a substantial
portfolio of DES cases—most of which are filed in the
District of Columbia to take advantage of that jurisdiction’s
favorable limitations rules, even though counsel recognize
that they will be transferred for trial or decision else-
where—is attempting to manipulate the formation of
precedent by dismissing those proceedings that may lead to
an adverse decision while pursuing others to conclusion.
Counsel for Albers filed a response essentially conceding
that this is the plan, and that because the oral argument
4 No. 03-2320
had not gone well he decided to dismiss the appeal and
try again, with a different client, at a different time or in a
different court. Counsel contends that Lilly sometimes be-
haves opportunistically too and that both sides should have
this option.
When the parties do not agree on terms, dismissal is
discretionary with the court. Doubtless there is a pre-
sumption in favor of dismissal, but the procedure is not
automatic. See Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir.
2001) (en banc); Margulin v. CHS Acquisition Corp., 889
F.2d 122 (7th Cir. 1989). One good reason to exercise
discretion against dismissal is to curtail strategic behavior.
See, e.g., American Automobile Manufacturers Association
v. Massachusetts Department of Environmental Protection,
31 F.3d 18 (1st Cir. 1994); United States v. Washington
Department of Fisheries, 573 F.2d 1117 (9th Cir. 1978). Cf.
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18 (1994) (judicial decision created with a significant
investment of public resources is not a bargaining chip that
the parties may elect to have vacated). The case is not moot,
because costs abide the outcome and have yet to be deter-
mined; in the absence of an agreement, there may be
further dispute. (Sanctions also are a possibility, though
Lilly has not invoked Fed. R. App. P. 38.) Albers certainly
has not promised to pay whatever costs or sanctions Lilly
sees fit to demand. We think it best, largely for reasons
parallel to those that animated the decision in U.S.
Bancorp, to carry through so that the investment of public
resources already devoted to this litigation will have some
return, and an attempt to make the stock of precedent look
more favorable than it really is may be foiled.
AFFIRMED
No. 03-2320 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-6-04