Is Depriving Cause of Action Where Injuries Were Latent and Undiscoverable Within the Repose Period Constitutional ?
In Diamond V. E.r. Squibb & Sons, Inc., 397 So. 2d 671 (Fla. 1981), the Court squarely addressed the constitutionality of depriving a plaintiff of her cause of action where her injuries were latent and undiscoverable within the repose period. 397 So. 2d at 672.
The plaintiff alleged that while unborn, diethylstilbestrol (DES), a drug manufactured by the defendant, was administered to her. See id.
DES later was found to be a cause of cancer in girls whose mothers were treated with the drug. See id.
The cancerous effects of ingestion of DES did not become "manifest" until the plaintiff reached puberty. See id. at 672 (McDonald, J., specially concurring).
The defendant moved for summary judgment based on the statute of repose that existed for products liability suits, which is the same statute applicable to the present case. See id. at 671.
The Court held that the statute of repose, as applied in that case, violated the plaintiff's guarantee of access to courts because it barred the plaintiff's cause of action "before it ever existed." Diamond, 397 So. 2d at 672.
Justice McDonald explained the necessity for the latent injury exception to the products liability statute of repose in his specially concurring opinion in Diamond:
In this plaintiff's case the claim would have been barred, even though the wrongful act had taken place, before the injury became evident.
Plaintiff had an accrued cause of action but it was not recognizable, through no fault of hers, because the injury had not manifested itself.
This is different from a situation where the injury is not inflicted for more than twelve years from the sale of the product.
When an injury has occurred but a cause of action cannot be pursued because the results of the injury could not be discovered, a statute of limitation barring the action does, in my judgment, bar access to the courts and is constitutionally impermissive. Id.