Kaufman v. Eli Lilly & Co.

65 N.Y.2d 449, 492 N.Y.S.2d 584, 482 N.E.2d 63 (1985)



The doctrine of collateral estoppel precludes a party from relitigating an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point. It is a doctrine intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it. There are now but two requirements which must be satisfied before the doctrine is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination.


A mother ingested DES while pregnant with the plaintiff. The said drug was supposed to prevent a miscarriage. When plaintiff turned 18, she discovered that she had cervical cancer. She blamed her mother’s ingestion of DES as the proximate cause. Since the plaintiff cannot accurately pinpoint the actual manufacturer of the drug during the time her mother took it, she joined several pharmaceutical companies in her action, including the defendant drug manufacturer, and advanced the concerted action theory of liability against them for bringing a concerted action in testing and marketing DES. The plaintiff is just one of among several who filed a similar case against the pharmaceutical companies. In one case, known as the Bichler case, the jurys returned a verdict on the liability of the defendant drug manufacturer. The plaintiff used this among several other jury findings to obtain partial summary judgment in her own case. The trial court gave collateral estoppel effect to jury findings in the Bichler case holding the drug manufacturer liable to a different plaintiff for acting in concert with the other drug manufacturers in inadequately testing diethylstilbestrol (DES), which was ingested by that plaintiff's mother and the injured party's mother during pregnancy. The drug manufacturer opposed the application of the said doctrine, since the cases involved did not raise identical issues.


Should collateral estoppel effect be given to a prior similar case to arrive at a concerted action finding?




The court held the concerted action finding should not be given such effect because the appropriateness of this novel theory was an open question not litigated in the prior case due to failure to object. The drug manufacturer was properly precluded from relitigating the other issues because they related solely to the facts underlying negligent testing and the pregnant mothers ingested DES in the same time period and the daughters developed similar cancers at the same age. Inadmissible hearsay allegations of a compromise verdict and speculation did not prevent collateral estoppel. The drug manufacturer was properly denied leave to depose two prior jurors to substantiate its compromise verdict claim. The trial court did not abuse its discretion in severing to avoid obvious prejudice to the other drug manufacturers.

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