                                                                             PUBLISH

                        IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT

                              _______________________________

                                         No. 95-4924
                              ________________________________
                                 D.C. Docket No. 89-6255-CIV



SUSAN F. WOOD, individually and
as Personal Representative of the Estate
of BETTIE W. WOOD, and JONATHAN H.
WOOD, JR.,

                                                                               Plaintiffs-Appellants,


       versus

ELI LILLY AND COMPANY, a New
Jersey corporation, and UPJOHN COMPANY,
INC., a Delaware corporation,

                                                                             Defendants-Appellees.

                              _______________________________

                            Appeal from the United States District Court
                                for the Southern District of Florida
                             _________________________________

                                       (December 29, 1997)

Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*, Senior District Judge.



_________________
*Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
PER CURIAM:

        This case comes before this court on appeal from the United States District Court for the

Southern District of Florida. We have jurisdiction over a final decision of a district court

pursuant to 28 United States Code § 1291.

        The Appellants in the above- captioned appeal, are the Estate of Bettie W. Wood, Susan

F. Wood and Jonathan H. Wood. Their mother took the drug Diethylstilbestrol (“DES”) during

her three pregnancies. The ingestion took place at various times in the years 1956, 1958, 1961,

and 1962. The original complaint was filed March 1, 1988 in the Broward County Circuit Court

against Eli Lilly and Company and the Upjohn Company, Inc. Defendants removed the action to

the district court. The gravamen of the complaint was that the plaintiffs were exposed to the

DES in utero, and suffered subsequent illness as a result.

        Bettie W. Wood was diagnosed with clear cell adenocarcinoma in August, 1978 and

advised that there might be a connection between her condition and the DES taken by her

mother. She underwent surgery followed by yearly medical examinations with no indication of a

recurrence until, March 2, 1984, when she was notified that the cancer had recurred. She died in

1991.

        There has never been a diagnosis of cancer for Susan Wood, although in 1976 she was

diagnosed with vaginal adenosis, and advised that this condition was often associated with DES

exposure. In January, 1987 she had an ectopic pregnancy and a therapeutic abortion, which she

alleges was related to the ingestion of DES by her mother.

        By order of September 19, 1989, the district court dismissed the action because the

plaintiffs could not identify the manufacturer or manufacturers of the DES ingested by their


                                                 2
mother.

        The plaintiffs appealed to this court, and while the appeal was pending, the Supreme

Court of Florida handed down its decision in Conley v. Boyle Drug Co., 570 So. 2d 275 (Fla.

1990), holding that a market share theory of liability could be used in DES cases to apportion

liability.1

        In an unpublished opinion dated May 3, 1991, this court vacated the order of the district

court and remanded the case for reconsideration in light of Conley.

        On December 8, 1994, the district court granted the defendants’ motion for summary

judgment against Susan F. Wood and the Estate of Bettie W. Wood on the grounds that their

claims were barred by the applicable four year statute of limitations. The action involving

Jonathan H. Wood, Jr. is apparently still pending in the district court.

        The plaintiffs again appealed to this court, arguing that the date of the decision in Conley

was the date on which the statute of limitations began to run. The plaintiffs asserted that no

cause of action arose for statute of limitation purposes until the date of the Conley decision,

supra, and that applying the four year statute of limitations in this case would deprive the

plaintiffs of their right of access to the courts under the Florida Constitution, Art. 1, Section 21.

        The defendants argued that the statute of limitations began to run when the plaintiffs

were first advised that there “might” be a problem: 1978 for Bettie Wood and 1976 for Susan

Wood.

        This was an issue of first impression under Florida law, and we certified the following


        1
        The market share theory of liability permits a plaintiff to bring an action in such cases
without requiring the plaintiff to allege or prove that a particular defendant produced or marketed
the precise DES taken (in this case) by the plaintiffs’ mother.

                                                  3
question to the Supreme Court of Florida:

                      In a negligence action concerning the drug Diethystilbestrol
                      (“DES”) in which a plaintiff relies on the market share
                      theory of liability to recover from the defendants, as
                      described in Conley v. Boyle Drug Co., 570 So. 2d 275
                      (Fla. 1990), does the statute of limitations commence running
                      on the date that Conley was issued or on the date that the
                      plaintiff knew, or reasonably should have known, of her injury?

Wood v. Eli Lilly and Co., 106 F.3d 374, 376 (11th Cir. 1997).

       The Supreme Court of Florida has now answered the question as follows:

                      We answer the certified question by holding that the statute
                      of limitations for DES negligence actions begins to run on
                      the date that the plaintiff knew or should have known of his
                      or her injury rather than on the date that Conley was decided.

Wood v. Ely Lilly & Co., No. 90001, (Fla. Oct. 30, 1997).

       This ruling is consistent with the decision of the district court in granting summary

judgment for the defendants in this case.

       The judgment of the district court is AFFIRMED.




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