The paradigm of alternative liability is found in the case of Summers v Tice . It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent … In Fleishman v Lilly & Co. it became clear that this exposure rule led to many DES cases being barred by the Statute of Limitations before the discovery of injury; we held, however, that any change in the accrual date from exposure to discovery was more properly the prerogative of the Legislature. Defendants are allowed, however, to exculpate themselves by showing that their product could not have caused the injury to the particular plaintiff. The second barrier to recovery, involving the Statute of Limitations, arose from the long-standing rule in this State that the limitations period accrued upon exposure in actions alleging personal injury caused by toxic substances. ... She brought suit against Eli Lilly & Company and others, alleging that her mother's ingestion of DES in 1953 while she was pregnant with her caused her injuries. Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action. Thus the pregnant women who took DES generally never knew who produced the drug they took, and there was no reason to attempt to discover this fact until many years after ingestion, at which time the information is not available. [Footnote 3]. Receive notifications of new posts by email. All DES was of identical chemical composition. . The Legislature has now revived DES actions that were time barred under the exposure rule, while also instituting a discovery rule for future application. We believe, therefore, that inferring agreement from the fact of parallel activity alone improperly expands the concept of concerted action beyond a rational or fair limit; among other things, it potentially renders small manufacturers, in the case of DES and in countless other industries, jointly liable for all damages stemming from the defective products of an entire industry. We turn then to the question of how to fairly and equitably apportion the loss occasioned by DES, in a case where the exact manufacturer of the drug that caused the injury is unknown. In 1971, however, the FDA contraindicated 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. By 1971, it was found to cause vaginal adenocarcinoma and cancerous cervical growth in the offspring. In 1941, the Food and Drug Administration (FDA) approved the new drug applications (NDA) of 12 manufacturers to market DES for the treatment of various maladies, not directly involving pregnancy. It is merely a windfall for a producer to escape liability solely because it manufactured a more identifiable pill, or sold only to certain drugstores. Nor does the theory of concerted action, in its pure form, supply a basis for recovery. We feel that this is an unfair, and perhaps impossible burden to routinely place upon the litigants in individual cases. The present appeals are before the court in the context of summary judgment motions. Indeed, in Fleishman v Lilly & Co. the Legislature's attention was drawn specifically to DES by the majority, which stated that any change in the exposure rule was the Legislature's role. Under settled strict products doctrine (see e.g., Codling v Paglia, 32 NY2d 330, 338-342; Prosser and Keeton, Torts [5th ed], 98) and Hymowitz v Eli Lilly and Co. (73 NY2d 487, cert denied, __US__, 110 SCt 350), there can now be no question that persons in the position of Karen Enright's mother would have a right to recover for injuries to their reproductive systems. 2d 338 (1989) Cartel Capital Corporation v. Fireco of New Jersey81 N.J. 548, 410 A.2d 674 (1980) Board of County Commissioners of Teton County v. Bassett. Steven J. Ahmuty, Nancy Ledy Gurren, John J. Bower and Karen L. Hymowitz for The Upjohn Company, respondent. Plaintiffs in these appeals allege that they were injured by the drug diethylstilbestrol (DES) ingested by their mothers during pregnancy. Hymowitz v. Eli Lilly & Co. Eli Lilly moved for summary judgment on the ground that Hymowitz failed to prove which manufacturer produced the DES that caused the injury in question. The Legislature also, for one year, revived causes of action for exposure to DES that had been time barred. It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent miscarriages. CITED BY VISUAL. Defendants' percentage of payment depended upon their market share at the time of the injury. The Martin court instead adopted what it termed "market share alternative liability," justified, it concluded, because "[each] defendant contributed to the risk of injury to the public, and, consequently, the risk of injury to individual plaintiffs.". Two years after Fleishman v Lilly & Co. the Legislature addressed the Statute of Limitations problem, and instituted a discovery rule for “the latent effects of exposure to any substance” . Balancing these considerations, we are led to the conclusion that a market share theory, based upon a national market, provides the best solution. We allowed plaintiff's recovery in that case, however, notwithstanding the failure of the plaintiff to identify the manufacturer of the injurious DES, on the limited basis that "the evidence was legally sufficient to support the jury verdict for the plaintiff" on the law as charged to the jury, and unobjected to by the defendant. Precocious sexual development in Puerto Rico, linked to DES, 1982, Annali dell’Istituto superiore di sanita, 1984, Canadian Medical Association journal, 1983, Pharmacology & therapeutics, NCBI PubMed 1980, Fertility and sterility, NCBI PubMed 1979, Prenatal hormone administration and postnatal socialization, 1978, Signs of sexual precocity in seven children due to diethylstilbestrol exposure, 1963, Breast enlargement in two young girls following stilbestrol exposure, 1953, Gynecomastia with pigmentation in a 10 months old male following stilbestrol exposure, 1952. Privacy Policy. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Under State law, the level of review seems somewhat more stringent. Upload brief to use the new AI search. Thus, in a sense, we are now in an enviable position; the efforts of other courts provided examples for contending with this difficult issue, and enough time has passed so that the actual administration and real effects of these solutions now can be observed. In all of the appeals defendants moved for summary judgment dismissing the complaints because plaintiffs could not identify the manufacturer of the drug that allegedly injured them. Hymowitz v. Eli Lilly and Company case brief, lawschoolcasebriefs, January 31, 2013. From A.D.2d, Reporter Series. Under the Collins structure, the "risk" each defendant is liable for is a question of fact in each case, with market shares being relevant to this determination. The Legislature does not violate equal protection by providing a rational piecemeal remedy for what may be a larger problem. It is estimated that eventually 800 DES cases will be brought under the revival portion of this recent statute. CITES . It is also recognized that alternative liability rests on the notion that where there is a small number of possible wrongdoers, all of whom breached a duty to the plaintiff, the likelihood that any one of them injured the plaintiff is relatively high, so that forcing them to exonerate themselves, or be held liable, is not unfair. Click the citation to see the full text of the cited case. Consequently, if a particular defendant sold DES in a form unsuitable for use during pregnancy, or if a defendant establishes that its product was not marketed for pregnancy use, there should be no liability. It appears, however, that we have applied a less strict test in other cases, and have been satisfied if there was an apparent injustice which "calls for [a] remedy," and which is "reasonable" and not "arbitrary.". Instead, we choose to apportion liability 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. In 1947, the FDA began approving the NDAs of manufacturers to market DES for the purpose of preventing human miscarriages; by 1951, the FDA had 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. As California discovered, the reliable determination of any market smaller than the national one likely is not practicable. The trial court denied all of these motions. Approximately 300 manufacturers produced the drug, with companies entering and leaving the market continuously during the 24 years that DES was sold for pregnancy use. Defendants claim that this categorization is without sufficient basis, and that it is the result of a "political compromise." Vale Chemical Company, Endo Laboratories, Inc., and Theodore G. Klumpp, respondents, precluded. We are aware that 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 this State. DES was marketed for pregnancy starting in 1951. Applied on a limited scale this theory may be feasible, and certainly is the most refined approach by allowing a more thorough consideration of how each defendant's actions threatened the plaintiff. From the record before the court here, however, the facts are not developed well enough to establish that any defendants were not in the national market of DES sold for pregnancy use. Briefly, DES is a synthetic substance that mimics the effect of estrogen, the naturally formed female hormone. Although strong evidence links prenatal DES exposure to later development of serious medical problems, plaintiffs seeking relief in court for their injuries faced two formidable and fundamental barriers to recovery in this State; The identification problem has many causes. Nor do we believe that the Wisconsin approach of assessing the "risk" each defendant caused a particular plaintiff, to be litigated anew as a question of fact in each case, is the best solution for this State. The cancerous condition for which plaintiff seeks damages allegedly appeared in … . It was invented in 1937 by British researchers, but never patented. We also hold that the Legislature's revival for one year of actions for injuries caused by DES that were previously barred by the Statute of Limitations is constitutional under the State and Federal Constitutions. PLAINTIFF TERRY MITCHELL’S BRIEF IN SUPPORT OF AN AFFIRMATIVE ANSWER TO QUESTIONS CERTIFIED BY THE UNITED STATES DISTRICT COURT _____ From the United States District Court, District of Utah, Before Magistrate Judge Evelyn J. Furse Hymowitz v. Eli Lilly & Co. Posted on November 18, 2016 | Torts | Tags: Torts, Torts Case Briefs, Torts Law. Thus summary judgment cannot at this time be granted on this issue as to any defendants. As discussed in detail in Watchtower's Opening Brief, the New York State Constitution guarantees the fundamental right to due process by restricting the Legislature's ability to unilaterally and unjustifiably revive time-barred claims. . Others may have known of some effect upon them of DES exposure, which became cancerous only after any action would have been time barred. In 1947, the FDA began approving the NDAs of manufacturers to market DES for the purpose of preventing human miscarriages; by 1951, the FDA had 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. Supreme Court of Wyoming (2000)8 P.3d 1079 (Wyo. From Cal.2d, … Hymowitz v. Eli Lilly & Co.. Facts: DES was marketed for pregnancy starting in 1951. 2d 482, 518 N.Y.S.2d 996, 1987 N.Y. Misc. On Appeal from the Merrimack County Superior Court Procedural History: Plaintiffs appeal in the context of summary judgment motions dismissed because the plaintiffs could not identify the manufacturer of the drug that allegedly injured them. The actual operation of this theory proved more mathematically complex when the court was presented with the question of what to do about unavailable defendants. Additionally, in DES cases many years elapse between the ingestion of the drug and injury. Eli Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982) (because DES manufacturer made no motion to dismiss the complaint for failure to state a cause of action, "concerted action" theory became controlling law of case), overruled, Hymowitz v. The number of DES-caused injuries was relatively well known by the Legislature, which allowed for the ramifications of revival of DES claims, such as the effect on insurance interests, and the other costs, to be reasonably predicted. This result is reached by the dissent, not by the majority, so that criticism on this front is misplaced. Parallel behavior, the major justification for visiting liability caused by the product of one manufacturer upon the head of another under this analysis, is a common occurrence in industry generally. The long latency period of a DES injury compounds the identification problem; memories fade, records are lost or destroyed, and witnesses die. We recognized this predicament in Bichler v Lilly & Co., where the court stated that in DES cases it is a “practical impossibility for most victims to pinpoint * * * the manufacturer directly responsible for their particular injury”. Note: The following opinion was edited by LexisNexis Courtroom Cast staff. The history of the development of DES and its marketing in this country has been repeatedly chronicled. 2d 338 (1989) Cartel Capital Corporation v. Fireco of New Jersey81 N.J. 548, 410 A.2d 674 (1980) Board of County Commissioners of Teton County v. Bassett. Thus we believe that exceptional circumstances are presented, that an injustice has been rectified, and that the requirements of Gallewski v Hentz & Co. have been met. Citations are also linked in the body of the Featured Case. The latent nature of DES injuries is well known, and it is clear that in the past the exposure rule prevented the bringing of timely actions for recovery. The question, therefore, of whether nonidentification of the manufacturer precludes plaintiffs from recovering for DES caused injuries, remained unresolved after Bichler v Lilly & Co. (supra). Druggists usually filled prescriptions from whatever was on hand. They seek relief against defendant DES manufacturers. They seek relief against defendant DES manufacturers. . Anabolic steroids in meat and premature telarche, The case of diethylstilbestrol treated veal contained in homogenized baby-foods in Italy, Age at onset of puberty and on postpubertal hormone levels in DES Sons, Sex-dimorphic behaviour development in the human, Drug contamination with diethylstilbestrol, Pseudoprecocious Puberty in Girls as a Result of Estrogen Ingestion, Signs of Sexual Precocity in a Male Infant due to Estrogenic Ointment, Gynecomastia with pigmentation in a four year old male following stilbestrol exposure. Some may have known of their exposure, but did not develop injuries during the limitations period. Finally, it is noteworthy that determining market shares under Sindell v Abbott Labs proved difficult and engendered years of litigation. Other courts, however, have found that some modification of existing doctrine is appropriate to allow for relief for those injured by DES of unknown manufacture. We also hold that the Legislature’s revival for one year of actions for injuries caused by DES that were previously barred by the Statute of Limitations is constitutional under the State and Federal Constitutions. 79 A.D.2d 317 - BICHLER v. ELI LILLY & CO., Appellate Division of the Supreme Court of the State of New York, First Department. ... Hymowitz v. Eli Lilly & Co493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. Yet, the majority holds that Karen Enright has … If any defendants succeed in rebutting this presumption, the liability shares of the remaining defendants who could not prove their actual market share are inflated, so that the plaintiff received a 100% recovery. Defendants argue further that, even if the statute is generally valid, it may be unconstitutionally applied in cases in which the plaintiff could have sued originally, but did not. 2000) Turner v. ... CASE BRIEFS. In three of the appeals defendants also moved on Statute of Limitations grounds, arguing that the revival of the actions was unconstitutional under the State and Federal Constitutions, and that the complaints, therefore, are time barred and should be dismissed. Among the thorny issues this could present, perhaps the most daunting is the spectre that the particular case could require the establishment of a separate market share matrix. Plaintiff was born on December 11, 1954. By 1971, it was found to cause vaginal adenocarcinoma and cancerous cervical growth in the offspring. Recognizing that the possibility of abuse existed when defendants implead unavailable defendants, who would then be assumed to have had an equal share of the market, the court placed the burden upon appearing defendants to prove the market share of the absent ones. In Re Arbitration Between Polemis & Furness, Withy & Co. Bartolone v. Jeckovich; Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound No. Furthermore, it was also well known, particularly after Fleishman v Lilly & Co., that DES victims were prejudiced under current law. In Sindell v Abbott Labs, the court synthesized the market share concept by modifying the Summers v Tice alternative liability rationale in two ways. In DES cases, however, there is a great number of possible wrongdoers, who entered and left the market at different times, and some of whom no longer exist. In Summers, plaintiff and the two defendants were hunting, and defendants carried identical shotguns and ammunition. Briefly, DES is a synthetic substance that mimics the effect of estrogen, the naturally formed female hormone. , 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. © 2020 Courtroom Connect, Inc. "Alternative" and "Market Share" Causation. However, we eschewed exculpation to prevent the fortuitous avoidance of liability, and thus, equitably, we decline to unleash the same forces to increase a defendant's liability beyond its fair share of responsibility. Moreover, Hymowitz itself drew a direct link between the jurisdictional and substantive ... the forum state, and the other states is possible. . As we noted in Bichler v Lilly & Co., and as the present record reflects, drug companies were engaged in extensive parallel conduct in developing and marketing DES. Finally, we hold that 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. The Appellate Division affirmed in all respects and certified to this court the questions of whether the orders of the trial court were properly made. Hymowitz v. Eli Lilly & Co. Posted on November 18, 2016 | Torts | Tags: Torts, Torts Case Briefs, Torts Law. Specifically, tests indicated that DES caused vaginal adenocarcinoma, a form of cancer, and adenosis, a precancerous vaginal or cervical growth. This is not a novel conclusion; in the last decade a number of courts in other jurisdictions also have concluded that present theories do not support a cause of action in DES cases. Citation Hymowitz v. Eli Lilly & Co., 136 Misc. While not class actions, these cases are representative of nearly 500 similar actions pending in the courts in this State; the rules articulated by the court here, therefore, must do justice and be administratively feasible in the context of this mass litigation. With this in mind, we now resolve the issue twice expressly left open by this court, and adopt a market share theory, using a national market, for determining liability and apportioning damages in DES cases in which identification of the manufacturer of the drug that injured the plaintiff is impossible. The Legislature also, for one year, revived causes of action for exposure to DES that had been time barred. But most, if not all legislation is the product of some compromise, so that this objection surely is no basis for finding the revival statute unconstitutional. Defendants argue that the revival of barred DES claims was unconstitutional as a denial of both due process and equal protection, under the State and Federal Constitutions. . Consequently, use of the alternative liability doctrine generally requires that the defendants have better access to information than does the plaintiff, and that all possible tort-feasors be before the court. There the jury was instructed on a modified version of concerted action, which, in effect, substituted the fact of conscious parallel activity by manufacturers for the usual common-law requirement that there be proof of an actual agreement between actors to jointly act tortiously. The defendant in Bichler did not object to this instruction, and the modified concerted action theory became the law applicable to that particular case. During the hunt, defendants shot simultaneously at the same bird, and plaintiff was struck by bird shot from one of the defendants' guns. LEXIS 2476 (N.Y. Sup. Therefore, although the dissent's theory based upon a "shifting the burden of proof" and joint and several liability is facially reminiscent of prior law, in the case of DES it is nothing more than advocating that bare fortuity be the test for liability. “ Plaintiffs in these appeals allege that they were injured by the drug diethylstilbestrol (DES) ingested by their mothers during pregnancy. 2d 338 (1989) Cartel … Under the Washington scheme, defendants are first allowed to exculpate themselves by proving by the preponderance of the evidence that they were not the manufacturer of the DES that injured plaintiff. Use of a national market is a fair method, we believe, of apportioning defendants' liabilities according to their total culpability in marketing DES for use during pregnancy. Sign In to view the Rule of Law and Holding. The past decade of DES litigation has produced a number of alternative approaches to resolve this question. Listed below are the cases that are cited in this Featured Case. Deciding the identification issue without the benefit of the extensive California litigation over market shares, the Wisconsin court held that it was prevented from following Sindell due to "the practical difficulty of defining and proving market share." We avoided extending this theory, because its concomitant requirement of joint and several liability expands the burden on small manufacturers beyond a rational or fair limit. Summers v. Tice; Hymowitz v. Eli Lilly & Co. Falcon v. Memorial Hospital; Richardson v. Richardson-Merrell Inc. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here. It first loosened the requirement that all possible wrongdoers be before the court, and instead made a "substantial share" sufficient. Plaintiff's mother claims the defects caused by the grandmother's use of the drug lead to the plaintiff being born with more severe defects and disabilities. Moreover, as indicated in Bichler v Lilly & Co. (supra), and as apparent from the record now before the court, in the vast majority of these cases identification of the manufacturer of the DES that injured the plaintiff will be impossible. Appellate Case No. ... “In those cases where the released offender poses a predictable threat of harm to a named or readily identifiable victim, a … Hymowitz v. Eli Lilly & Co493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. The Relevancy of Drug Efficacy Evidence in Strict Liability Actions, the FDA contraindicated the use of DES as a miscarriage preventative. The dissent ignores these lessons, and, endeavoring to articulate a theory it perceives to be closer to traditional law, sets out a construct in which liability is based upon chance, not upon the fair assessment of the acts of defendants. Moreover, as indicated in Bichler v Lilly & Co., and as apparent from the record now before the court, in the vast majority of these cases identification of the manufacturer of the DES that injured the plaintiff will be impossible. Post was not sent - check your email addresses! This section revives, for the period of one year, actions for damages caused by the latent effects of DES, tungsten-carbide, asbestos, chlordane, and polyvinylchloride. Nor does the use of a national market provide a reasonable link between liability and the risk created by a defendant to a particular plaintiff. Accordingly, in each case the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. While not class actions, these cases are representative of nearly 500 similar actions pending in the courts in this State; the rules articulated by the court here, therefore, must do justice and be administratively feasible in the context of this mass litigation. Various defendants argue here that although they produced DES, it was not sold for pregnancy use. Instead of focusing on tying liability closely to the odds of actual causation, as the Sindell court attempted, the Collins court took a broader perspective, and held that each defendant is liable in proportion to the amount of risk it created that the plaintiff would be injured by DES. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 514 (1989). The present appeals are before the court in the context of summary judgment motions. The long latency period of a DES injury compounds the identification problem; memories fade, records are lost or destroyed, and witnesses die. [Footnote 1] The market shares of defendants is a question of fact in each case, and the relevant market can be a particular pharmacy, or county, or State, or even the country, depending upon the circumstances the case presents. However, we agree with the near unanimous views of the high State courts that have considered the matter that these doctrines in their unaltered common-law forms do not permit recovery in DES cases. Plaintiffs deserved a recovery because there was a policy issue of fairness. We are concerned here only with the constitutionality of the statute as it pertains to DES; there are no producers of the other substances, or plaintiffs alleging injury therefrom, before the court on these appeals. Instead, here we must proceed on the presumption that the law is constitutional, and will hold otherwise only if it is established that the distinction drawn has no reasonable basis. The Appellate Division affirmed in all respects and certified to this court the questions of whether the orders of the trial court were properly made. Diethylstilbestrol DES studies by topics. Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. All DES was of identical chemical composition. Consequently, the ever-evolving dictates of justice and fairness, which are the heart of our common-law system, require formation of a remedy for injuries caused by DES. Indeed, it would be inconsistent with the reasonable expectations of a modern society to say to these plaintiffs that because of the insidious nature of an injury that long remains dormant, and because so many manufacturers, each behind a curtain, contributed to the devastation, the cost of injury should be borne by the innocent and not the wrongdoers. To be sure, a defendant cannot be held liable if it did not participate in the marketing of DES for pregnancy use; if a DES producer satisfies its burden of proof of showing that it was not a member of the market of DES sold for pregnancy use, disallowing exculpation would be unfair and unjust. Perhaps his most famous appellate case was that of Hymowitz v. Eli Lilly & Co., which led to the upholding of a 1986 New York law allowing asbestos and DES victims to bring suit after the statute of limitations had run (Mr. Luxenberg’s key achievement in that matter had the effect of making New York a viable jurisdiction for mass-tort litigation). It is estimated that eventually 800 DES cases will be brought under the revival portion of this recent statute. Following a ruling that Hardwick failed to state a claim, the court dismissed. In Chase, the United States Supreme Court upheld the revival of a time-barred action, stating that Statutes of Limitation "represent a public policy about the privilege to litigate the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control."

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