Hymowitz v. Eli Lilly & Co.
73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989)
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Rule of Law:
In cases involving injuries from the drug DES, a plaintiff who cannot identify the specific manufacturer may recover damages from a defendant manufacturer based on that defendant's share of the national market. Under this theory, liability is several only, and a defendant that marketed DES for pregnancy use cannot exculpate itself by proving it did not cause the plaintiff's particular injury.
Facts:
- Diethylstilbestrol (DES) is a synthetic estrogen invented in 1937 but never patented.
- Beginning in 1947, the Food and Drug Administration (FDA) approved DES for use by pregnant women to prevent miscarriages.
- Approximately 300 different companies manufactured and marketed DES, which was chemically identical and fungible regardless of the manufacturer.
- Pharmacists typically filled DES prescriptions from whatever stock was on hand, without regard to the specific manufacturer.
- In 1971, the FDA banned DES for pregnancy use after studies demonstrated that it caused cancer and other serious latent medical problems in the daughters of women who had ingested the drug.
- Plaintiffs, daughters of women who took DES during pregnancy, later developed these medical conditions.
- Due to the generic nature of the drug, the passage of many years, and the loss of records, plaintiffs could not identify the specific manufacturer of the DES their mothers had taken.
Procedural Posture:
- Plaintiffs, who alleged injuries from DES, sued various drug manufacturers in New York state trial courts.
- Many of these actions had been revived by a 1986 statute after being barred by the prior statute of limitations.
- Defendants moved for summary judgment in the trial courts, arguing the cases should be dismissed because plaintiffs could not identify the specific manufacturer of the DES their mothers ingested and that the revival statute was unconstitutional.
- The trial courts denied the defendants' motions for summary judgment.
- The Appellate Division, an intermediate appellate court, affirmed the trial courts' orders.
- The Appellate Division then certified questions to the New York Court of Appeals, the state's highest court, to determine if its orders were correctly made.
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Issue:
May a plaintiff injured by the drug DES, who is unable to identify the specific manufacturer that produced the drug ingested by her mother, recover against a defendant manufacturer based on that manufacturer's share of the national market for DES sold for pregnancy use, and is a statute reviving previously time-barred DES claims constitutional?
Opinions:
Majority - Chief Judge Wachtler
Yes. A plaintiff injured by DES who cannot identify the specific manufacturer may recover against a defendant manufacturer based on its national market share, and the statute reviving these claims is constitutional. Traditional tort doctrines like alternative liability and concerted action are inadequate for DES cases due to the large number of manufacturers and the lack of evidence of an explicit agreement. To achieve justice, the court adopts a market share liability theory using a national market for practical reasons, as determining local or state markets for hundreds of cases would be unfeasible. Liability is based on the overall risk each manufacturer created to the public at large, not causation in a specific case. Consequently, a defendant who participated in marketing DES for pregnancy use cannot exculpate itself by proving it did not cause the plaintiff's specific injury. However, liability is several only, meaning each defendant is responsible only for its own market share, and a plaintiff may not obtain a full recovery if all manufacturers are not joined. The court also holds that the legislative revival of time-barred DES actions is constitutional because the legislature had a rational basis to remedy the injustice caused by the latent nature of DES injuries under the old exposure-based statute of limitations.
Concurring - Judge Mollen
Yes, but with modifications to the majority's proposed theory. Judge Mollen concurs that a national market share theory is appropriate and that the revival statute is constitutional. However, he dissents from two key aspects of the majority's holding. First, he argues that a defendant should be allowed to exculpate itself if it can prove by a preponderance of the evidence that it did not produce or market the particular pill ingested by the plaintiff's mother, as precluding exculpation is a radical departure from the fundamental tort principle of causation. Second, to ensure plaintiffs receive full recovery for their injuries, he would impose joint and several liability upon those defendants unable to exculpate themselves, rather than the several-only liability adopted by the majority. This approach, he argues, better aligns with established tort principles by shifting the burden of proof on causation while still ensuring victims are made whole.
Analysis:
This landmark decision established a unique and influential version of market share liability in New York tort law, specifically tailored to the challenges of mass torts involving fungible products and latent injuries. By using a national market and, most critically, precluding exculpation for market participants, the court severed liability from traditional notions of direct causation, basing it instead on a manufacturer's contribution to the total public risk. The adoption of several-only liability reflects a policy choice to apportion damages according to each defendant's culpability, even at the risk of incomplete plaintiff recovery. This case provides a powerful, though narrowly applied, remedy for DES victims and created a framework that influences legal thinking on how to handle modern mass torts where specific causation is impossible to prove.
