Hymowitz v. Eli Lilly & Co.:
Court of Appeals of New York (1989)
73 N.Y.2d 487
Application: There are two barriers to plaintiff recovery in this state
- Identification of the manufacturer of the DES ingested in a particular case is generally impossible
- Has many causes: All DES was of identical chemical composition, pharmacists usually filled prescriptions from whatever was on hand, long latency period (memories fade, records are lost or destroyed, and witnesses die)
- Approximately 300 manufacturers produced the drug, with companies entering and leaving the market continuously during the 25 years that DES was sold for pregnancy
- No reason to attempt to discover the manufacturer of the drugs until years later.
- Due to the latent nature of DES injures, many claims were barred by the Statute of Limitations before the injury was discovered
- Long-Standing rule that the limitations period accrued upon exposure in actions alleging personal injury caused by toxic substances
-The accepted tort doctrines of alternative liability and concerted action are available in some personal injury cases to permit recovery where the precise identification of a wrongdoer is impossible
-Near unanimous view of high State courts that does not permit recovery in DES cases
-Summers: Where two defendants breach a duty to the plaintiff, but there is uncertainty regarding which one caused the injury, "the burden is upon each such actor to prove that he has not caused the harm"
-Without this device, both defendants could remain silent, and plaintiff would not recover.
-Use of the Alternative liability doctrine, generally requires that the defendants have better access to information than does the plaintiff, and that all possible tortfeasors are before the court
-When there is a small number of potential wrongdoers, the likelihood that one of they caused the harm is high.
-In DES cases, there is a great number of possible wrongdoers, some of whom no longer exist
-Additionally, many years elapse between the ingestion of the drug and the injury.
-Consequently, DES defendants are in no better position to identify the wrongdoer
-Theory of Concerted action: Provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in "a common plan or design to commit a tortious act" (usually seen in drag racing cases)
-Drug companies were engaged in extensive parallel conduct in developing and marketing DES
-Nothing in the record, beyond this similar conduct, to show any agreement, tacit or otherwise, to market DES for pregnancy use without taking proper steps to ensure the drugs safety
-Without more, parallel activity is insufficient
-Present legal theories do not support a cause of action for DES cases
-The present circumstances call for recognition of a realistic avenue of relief for plaintiffs injured by DES
-These cases present many of the same considerations that have prompted courts in the past to modify the rules of personal injury liability, in order to "achieve the ends of justice in a more modern context"
-Here, judicial action is required to overcome the inordinately difficult problems of proof caused by contemporary products and marketing techniques
-The DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, generically marketed product, which causes injuries years later, and which has evoked a legislative response reviving previously barred actions
-A market share theory, based upon a national market, provides the best solution
-The reliable determination of any market smaller than the national one likely is not practicable
-The adoption of a national market will likely result in a disproportion between the liability of individual manufacturers and the actual injuries each manufacturer caused in the state
-Market share theory cannot be founded upon the belief that, over the run of cases, liability will approximate causation in this state
-Apportion liability so as to correspond to the overall 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
-The liability of DES produces is several only, and should not be inflated when all participants in the market are not before the court in a particular case.
-As a practical matter, this will prevent some plaintiffs from recovering 100% of their damages
-Defendants shouldn’t be liable beyond their fair share of responsibility
-Defendants argue that the revival of barred DES claims was unconstitutional as a denial of both due process and equal protection under state and federal constitutions
-Rejected this claim.
-Plaintiffs allege that they were injured by the drug diethylstilbestrol (DES) ingested by their mothers during pregnancy
-Not class action, but representative of 500 similar actions pending in the courts of the state.
-DES: A synthetic substance that mimics the effect of estrogen-- the female hormone
-1937: DES invented by British researchers, but never patented
-1941: FDA approved the new drug applications (NDA) of 12 manufacturers to market DES for the treatment of various maladies, not directly involving pregnancy
-1947: FDA began approving the NDAs of manufacturers to market DES for the purpose of preventing human miscarriages
-1951: FDA 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
-1971: FDA banned 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.
-Tests indicated that DES caused vaginal adenocarcinoma, a form of cancer, and adenosis, a precancerous vaginal or cervical growth.
-Defendants moved for summary judgment dismissing the complaints, because plaintiffs could not identify the manufacturer of the drug that allegedly injured them.
-In 3 appeals, defendants also moved on Statute of Limitations grounds, arguing that the revivial of the actions was unconstitutional under the state and federal constitutions, and that the complaints, therefore, are time barred and should be dismissed.
-Granted plaintiffs cross-motion, dismissing defendants' affirmative defenses that the actions were time barred
-Trial Court: Denied all of the motions
-Appellate division: Affirmed
-Would adopt the market share theory, and apportion liability to all defendants, except those who can prove that their product could not have caused the injury
-Plaintiffs would thus be able to recover by showing:
- That the plaintiff's mother ingested DES during pregnancy
- That the plaintiff's injuries were caused by DES
- That the defendant or defendants produced and marketed DES for pregnancy purposes
-Burden of proof would then shift to defendants to exculpate themselves by establishing, by a preponderance, that the plaintiff's mother could not have ingested their particular pill
-Their respective share of the plaintiffs damages would be measured by their share of the national market of DES produced and marketed for pregnancy purposes during the period in question
-The majority deprives plaintiffs of the opportunity to recover fully for their injures by limiting the defendants liability for the plaintiffs damages to several liability
-Also only allows defendants who produced DES for pregnancy purposes to be liable
-When the majority eliminates the fundamental causative factor as a basis for recovery, it effectively indulges in the act of judicial legislating