Hymowitz v. Eli Lilly & Co.

73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989)



The court adopts a market share theory, using a national market, for determining liability and apportioning damages in diethylstilbestrol (DES) cases in which identification of the manufacturer of the drug that injured a plaintiff is impossible. The court also holds that the New York Legislature's revival for one year of actions for injuries caused by DES that were previously barred by the Statute of Limitations, 1986 N.Y. Laws ch. 682, § 4) is constitutional under the New York and federal constitutions.


Plaintiffs sued defendant drug manufacturers in three product liability actions, alleging injuries from use of diethylstilbestrol (DES) by plaintiffs' mothers during pregnancy. In all three cases, the trial court denied defendants summary judgment, and the appeals court affirmed. On appeal, defendant drug manufacturers argued that summary judgment was proper because plaintiffs could not identify the manufacturer of the drug that allegedly injured them and that state law, which revived time-barred DES claims, violated constitutional due process and equal protection principles. The court affirmed.


Can a DES plaintiff recover against a DES manufacturer when identification of the producer of the specific drug that caused the injury is impossible?




Liability should be apportioned so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large; a defendant cannot be held liable if it did not participate in the marketing of DES for pregnancy use. Use of a national market is a fair method of apportioning defendants' liabilities according to their total culpability in marketing DES for use during pregnancy. Under the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs' injuries among defendants. Further, the liability of DES producers is several only, and should not be inflated when all participants in the market are not before the court in a particular case.

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