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Payton v. Abbott Labs

Supreme Judicial Court of Massachusetts

September 17, 1981, Argued ; June 22, 1982, Decided

No Number in Original


 [*541]  [**173]   This case comes before the court on certification from the United States District Court for the District of Massachusetts of four principal and several subsidiary questions  [*542]  involving Massachusetts tort law. See S.J.C. Rule 1:03, § 1, as amended, 382 Mass. 700 (1981).

The plaintiffs in the [***5]  civil action in which these questions are certified seek redress for injuries allegedly caused by the prescription drug diethylstilbestrol (DES).  They brought suit in the Federal District Court in April, 1976. In July, 1979, a judge of the Federal District Court conditionally certified the plaintiff class under Fed. R. Civ. P. 23 (c)(4)(A) to permit resolution of thirteen specific class-wide issues. Payton v. Abbott Labs, 83 F.R.D. 382, 386 (D. Mass. 1979). Several of these issues are factual; the four questions here certified involve issues of Massachusetts law which the judge believed "may be determinative of various aspects of this case and as to which it appears . . . that there is no controlling precedent" in the decisions of this court.

The questions are presented by the judge in the context of a motion to dismiss, based upon the plaintiffs' allegations. The judge summarized those allegations as follows:

"The plaintiffs are all females whose mothers ingested a drug called diethylstilbestrol . . . while pregnant with the plaintiffs. DES was marketed by the defendants as a preventative for miscarriages, and was widely prescribed by physicians. DES is transmitted [***6]  to the fetus, and has been identified as one cause of a relatively rare but extremely malignant cancer called clear-cell adenocarcinoma which attacks the reproductive organs of the female children of mothers who have ingested DES. DES has also been identified as one of the causes of more common benign changes in the female children's reproductive organs, one of which is known as adenosis. The only corrective for clear-cell adenocarcinoma is timely radical surgery or radiation; if treatment is not successful the disease is likely to be fatal.

"Many of the plaintiffs have no symptoms of any of these conditions. As a result of their mothers' ingestion of DES, these plaintiffs are statistically more likely to suffer one of several abnormalities of the reproductive organ than is the general population and are to a lesser degree more likely to  [*543]  contract clear-cell adenocarcinoma. [*] They are anxious and emotionally upset by these possibilities. Some of the plaintiffs, on the advice of their physicians, are submitting to periodic medical examinations of the cervix and vagina so that symptoms of adenosis, other abnormalities, or clear-cell adenocarcinoma will be detected [***7]  as early as possible, thus increasing the chance of successful treatment. These examinations may be expensive and traumatic.

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386 Mass. 540 *; 437 N.E.2d 171 **; 1982 Mass. LEXIS 1545 ***; CCH Prod. Liab. Rep. P9321

Brenda Payton & others 1 v. Abbott Labs & others 2

Prior History:  [***1]  Suffolk.

Certification of questions of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

Disposition: So ordered.


emotional distress, cases, ingested, physical harm, physical injury, injuries, courts, plaintiffs', manufactured, defendants', marketed, tort law, mothers, inflicted, immunity, circumstances, damages, certified question, bodily harm, bystander, emotional, negligent conduct, decisions, tortfeasors, questions, distress, rescuer, zone of danger, genuineness, retroactive application

Torts, Types of Negligence Actions, Negligent Infliction of Emotional Distress, General Overview, Intentional Torts, Intentional Infliction of Emotional Distress, Elements, Standards of Care, Reasonable Care, Reasonable Person, Family Law, Family Relationships & Torts, Wrongful Life, Healthcare Law, Treatment Liability Issues, Medical Malpractice, Wrongful Birth, Types of Liability, Wrongful Birth, Causation, Proximate Cause, Governments, Courts, Judicial Precedent, Remedies, Damages, Reductions of Damages, Legislation, Effect & Operation, Prospective Operation, Negligence, Defenses, Procedural Matters, Multiple Defendants, Joint & Several Liability