The liability of the manufacturers of the drug diethylstilbestrol (DES) does not extend to a so-called "third generation" plaintiff, whose injuries allegedly were caused by her premature birth, which in turn resulted from damage to her mother's reproductive system caused by the mother's in utero exposure to DES. No unique feature of DES litigation has been identified which justifies recognition of a multigenerational cause of action that has not been recognized in any other context. Limiting liability to those who ingested the drug or were exposed to it in utero serves the purpose of confining liability within manageable limits, and does not unduly impair the deterrent purposes of tort liability. Thus, there is no basis for a departure from the rule that an injury to a mother which results in injuries to a later-conceived child does not establish a cause of action in favor of the child against the original tortfeasor.
A mother took the drug diethylstilbestrol (DES) while pregnant with plaintiff, and plaintiff's reproductive system was adversely affected. As an adult, plaintiff had troubled pregnancies before giving birth to her daughter prematurely, causing her daughter's numerous health problems. As a result, plaintiff brought several actions against several manufacturers of DES on behalf of her daughter, claiming negligence, breach of warranty, strict liability, and fraud. The trial court dismissed claims brought on behalf of plaintiff's daughter but on appeal, the appellate court reinstated the daughter's claim against the manufacturers of DES. The case was appealed by the manufacturer's to the Court of Appeals of New York.
Should the liability of manufacturers of the drug diethylstilbestrol (DES) extend to the so-called "third generation"?
The court ruled that, even though courts and the legislature had given litigants great latitude in DES cases, they could not make manufacturers liable to victim's children. The court ruled that their job was to make litigation and liability manageable, and extending liability to the extent sought by plaintiff could have negative consequences.