Hymowitz v. Eli Lilly & Co.

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 trial court denied all motions and allowed cross motions dismissing defenses that actions were time barred due to the legislative allowance for the statute to run upon discovery of latent effects.

Facts: DES is a synthetic substance discovered in 1937 and not patented. In 1941, the FDA approved originally 12 new drug applications to market DES for various maladies, not directly involving pregnancy. In 1947, the FDA approved new drug applications to market DES for the purpose of preventing miscarriage. By 1951, the FDA had concluded that the drug was safe for pregnancy use and stopped requiring the filing of new drug applications, causing many new manufacturers to enter the market. In 1971, the 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 had taken the drug during pregnancy, including vaginal adenocarcinoma, a form of cancer, and adenosis, a precancerous vaginal or cervical growth. The drug was of identical chemical makeup and druggists usually filled prescriptions based on what was on hand. Approximately 300 manufacturers had been in the market at some time within the 24 years that DES was sold for pregnancy use.

Issue: Should a DES plaintiff be ale to recover against a DES manufacturer when identification of the producer of the specific drug that caused the injury is impossible?

Rules: Legislation has allowed an exception to the statute of limitations, allowing the statute to begin to run upon the discovery of “the latent effects of exposure to any substance.”

The court decides that a defendant cannot be held liable if it did not participate in the marketing of DES for pregnancy use.

Application: The court takes on an adoption of a version of the market share concept on a national level in order to 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, as opposed to the individual defendant. The majority does not allow defendants to exculpate themselves on the basis of proving that they could not have caused a particular plaintiff’s injury and allows exculpation only in that the defendant was no in the market of DES for pregnancy use.

Conclusion: Summary judgment is not appropriate, affirming trial court and appellate court. The court holds that the liability of DES producers is several only, and should not be inflated when al participants in the market are not before the court in a particular case, even if that precludes the plaintiff from receiving a damages award of 100% of the recoverable damages.

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