Not a Lexis Advance subscriber? Try it out for free.

Hymowitz v. Eli Lilly & Co.

Court of Appeals of New York

February 15, 1989, Argued ; April 4, 1989, Decided

No Number in Original

Opinion

 [**1071]  [*502]  [***943]    OPINION OF THE COURT

Plaintiffs in these appeals allege that they were injured by the drug diethylstilbestrol (DES) ingested by their mothers during pregnancy. They seek relief against defendant DES manufacturers. While not class actions, these cases are representative of nearly 500 similar actions pending in the courts in this State; the rules articulated by the court here, therefore, must do justice and be administratively feasible in the context of this mass litigation.  [***944]  With this in mind, ] we now resolve the issue twice expressly left open by this  [**1072]  court, and adopt a market share theory, using a national market, for determining liability and apportioning damages in DES cases in which identification of the manufacturer of the drug that injured the plaintiff is impossible (see, Kaufman v Lilly & Co., 65 NY2d 449, 456; Bichler v Lilly & Co., 55 NY2d 571, 580). We also hold that the Legislature's revival for one year of actions for injuries caused by DES that were previously barred by the Statute of Limitations [****27]  (see, L 1986, ch 682, § 4) is constitutional under the State and Federal Constitutions.

The history of the development of DES and its marketing in this country has been repeatedly chronicled (see, e.g., Bichler v Lilly & Co., supra; Martin v Abbott Labs., 102 Wash 2d 581, 689 P2d 368; Sindell v Abbott Labs., 26 Cal 3d 588, 607 P2d 924, cert denied 449 U.S. 912; Sheiner, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L Rev 963). Briefly, DES is a synthetic substance that mimics the effect of estrogen, the naturally formed female hormone. It was invented in 1937 by British researchers, but never patented.

In 1941, the Food and Drug Administration (FDA) approved the new drug applications (NDA) of 12 manufacturers to market DES for the treatment of various maladies, not directly involving pregnancy. In 1947, the FDA began approving the NDAs of manufacturers to market DES for the purpose of preventing human miscarriages; by 1951, the FDA had concluded that DES was generally safe for pregnancy use, and stopped requiring the filing of NDAs when new manufacturers sought to produce the drug for this purpose. In 1971, however, the FDA banned [****28]  the use of DES as a miscarriage preventative, when studies established the harmful latent effects of DES upon the offspring of mothers who took the drug. Specifically,  [*503]  tests indicated that DES caused vaginal adenocarcinoma, a form of cancer, and adenosis, a precancerous vaginal or cervical growth.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

73 N.Y.2d 487 *; 539 N.E.2d 1069 **; 541 N.Y.S.2d 941 ***; 1989 N.Y. LEXIS 389 ****; CCH Prod. Liab. Rep. P12,182

Mindy Hymowitz, Respondent, v. Eli Lilly and Company et al., Appellants, et al., Defendants. Attorney-General of the State of New York, Intervenor-Respondent; Elizabeth Tigue et al., Respondents, v. E. R. Squibb & Sons, Inc., et al., Appellants, et al., Defendants; Jane Dolan et al., Respondents, v. Eli Lilly and Company et al., Appellants. (And Other Actions.); Barbara Hanfling et al., Respondents, v. Eli Lilly and Company et al., Appellants, et al., Defendants

Prior History:  [****1]   Appeals, in the first above-entitled action, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered April 14, 1988, which affirmed an order of the Supreme Court (Ira Gammerman, J.; opn 136 Misc 2d 482), entered in New York County, granting a motion by plaintiff to strike defendants' affirmative defenses challenging Laws of 1986 (ch 682, § 4) as unconstitutional and asserting that plaintiff's action is time barred, and denying cross motions by defendants for summary judgment dismissing the complaint. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"

Appeals, in the second above-entitled action, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered April 14, 1988, which affirmed an order of the Supreme Court (Ira Gammerman, J.; opn 136 Misc 2d 467), denying motions by defendants for summary judgment dismissing the complaint. The following question was certified by the Appellate Division: "Was the orders of the Supreme Court, as affirmed [****2]  by this Court, properly made?"

Appeals, in the third above-entitled action, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered April 14, 1988, which affirmed orders of the Supreme Court (Ira Gammerman, J.), entered in New York County, denying motions by defendants for summary judgment dismissing the complaint. The following question was certified by the Appellate Division: "Were the orders of the Supreme Court, as affirmed by this Court, properly made?"

Appeals, in the fourth above-entitled action, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered April 14, 1988, which affirmed an order of the Supreme Court (Ira Gammerman, J.), entered in New York County, granting a motion by plaintiff to strike defendants' affirmative defenses and denying a cross motion by defendant Upjohn Co. for summary judgment dismissing the complaint. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"

 Hymowitz v Lilly & Co., 139 AD2d 437.

 Tigue  [****3]   v Squibb & Sons, 139 AD2d 431.

 Dolan v Lilly & Co., 139 AD2d 978.

 Hanfling v Lilly & Co., 139 AD2d 977.

Disposition: In Hymowitz v Lilly & Co. and Hanfling v Lilly & Co.: Order affirmed, etc.

In Tigue v Squibb & Sons and Dolan v Lilly & Co.: Order affirmed, etc.

CORE TERMS

manufacturer, cases, injuries, pregnancy, market share, marketing, pill, exculpate, ingested, revival, concerted action, damages, identification, producing, courts, cause injury, wrongdoer, exposure, causation, market share theory, revival statute, risk of injury, purposes, summary judgment motion, circumstances, culpability, apportion, joint and several liability, preponderance of evidence, burden of proof

Governments, Legislation, Statute of Limitations, Extensions & Revivals, Torts, Products Liability, Theories of Liability, Strict Liability, General Overview, Time Limitations, Procedural Matters, Multiple Defendants, Joint & Several Liability, Negligence, Proof, Negligence, Elements, Duty, Defenses, Comparative Fault, Alternative Liability, Concerted Action, Civil Procedure, Affirmative Defenses, Revival, Constitutional Law, Fundamental Rights, Procedural Due Process, Case or Controversy, Constitutionality of Legislation