Abel v. Eli Lilly and Co.

• Citation: 289 N.W.2d 20,94 Mich.App. 59
• Decision Date: 05 December 1979
• Docket Number: Docket No. 77-3421
• Parties: Gail ABEL et al., Plaintiffs-Appellants, v. ELI LILLY AND COMPANY, Abbott Laboratories, the Blue Line Chemical Company, Burroughs Wellcome Company, Central Pharmacal Company, Cole Pharmacal Company, Kremers-Urban Company, McNeil Laboratories, Inc., Merck, Sharpe & Dohme, Rexall Drug Company, William J. Rorer, Inc., S. J. Tutag and Company, Schering Corporation, E. R. Squibb and Sons, Inc., Upjohn Company and Vale Chemical Company, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

Page 20

289 N.W.2d 20

94 Mich.App. 59

Gail ABEL et al., Plaintiffs-Appellants, v. ELI LILLY AND COMPANY, Abbott Laboratories, the Blue Line Chemical Company, Burroughs Wellcome Company, Central Pharmacal Company, Cole Pharmacal Company, Kremers-Urban Company, McNeil Laboratories, Inc., Merck, Sharpe & Dohme Rexall Drug Company, William J. Rorer, Inc., S. J. Tutag and Company, Schering Corporation, E. R. Squibb and Sons, Inc. Upjohn Company and Vale Chemical Company, Defendants-Appellees.

Docket No. 77-3421.

Court of Appeals of Michigan.

Dec. 5, 1979.

Rehearing Denied Feb. 8, 1980.

Released for Publication Feb. 28, 1980.

J. Peter Douglas, Detroit, for plaintiffs-appellants.

Shook, Hardy & Bacon, Lane D. Bauer, Leo P. Dreyer, Larry R. O'Neal, Kansas City, Mo., Dickinson, Wright, McKean, Cudlip & Moon, John E. S. Scott, Robert Krause, Detroit, for defendant-appellee Eli Lilly and Co.

Garan, Lucow, Miller, Lehman, Seward & Cooper, Albert A. Miller, Detroit, for defendant-appellee Rexall Drug Co.

Markle & Markle, James A. Markle, Detroit, for defendants-appellants Schering Corporation and White Laboratories, Inc.; James S. Goulding, Detroit, of counsel.

Sommers, Schwartz, Silver, Schwartz, Tyler & Gordon, David M. Tyler, Detroit, for defendant-appellant Cole Pharmaceutical Co.

Dice, Sweeney & Sullivan, P. C., David R. Getto, Detroit, for defendant-appellant S. J. Tutag and Co.

Morbach, Cheatham & MacArthur, Charles C. Cheatham, Detroit, for defendant-appellant Kremers-Urban Co.

Kitch & Suhrheinrich, James G. Smith, Detroit, for defendant-appellant the Upjohn Co.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P. C., William P. Cooney, Southfield, for defendant-appellant E. R. Squibb and Sons, Inc.

Vandeveer, Garzia, Tonkin, Kerr & Heafy, P. C., Edmund Brady, Frank A. Sweet, Detroit, for defendant-appellant Rorer, Inc.

Warner, Norcross & Judd, Wallson G. Knack, John D. Tully, Grand Rapids, Harvey, Kruse & Western, P. C., James N. Martin, Detroit, for defendant-appellant McNeil Laboratories, Inc.

Seavitt, Westcott, Miller, Stowe & Magnuson, Perry J. Seavitt, Gregory A. Reynolds, Detroit, for defendant-appellant Merck, Sharpe & Dohme.

Allen & Allen, Allen C. Youngblood, Troy, Kramer & Berris, Richard B. Kramer, Southfield, for defendant-appellant the Blue Line Chemical Co.

Lacey & Jones, Kenneth M. Zorn, Detroit, for defendant-appellant Vale Chemical Co.

Johnson, Campbell & Moesta, P. C., Reginald S. Johnson, Detroit, for defendant-appellant Central Pharmacal Co. Jenkins, Fortescue, Miller & Systrom, P. C., Dennis H. Nystrom, Southfield, for defendant-appellant Burroughs Wellcome Co.

Lord, Bissell & Brook, Hugh Moore, Chicago, Ill., for defendant-appellant Abbott Laboratories; Schureman, Frakes, Glass & Wulfmeier, John C. Frakes, Detroit, of counsel.

Before MAHER, P. J., and BRONSON and MOORE ^*, JJ.

MAHER, Presiding Judge.

Plaintiffs appeal as of right from an order of the Wayne County Circuit Court granting partial summary judgment in favor of defendants. This is a multiple-plaintiff, multiple- defendant products liability action involving a widely-distributed prescription drug. The trial judge ruled that each plaintiff, in order to state a cause of action sufficient to withstand a motion for summary judgment, must identify in the complaint which of the defendants allegedly manufactured the specific product which caused his or her harm. Those plaintiffs who could not name the particular defendant whose product harmed them had summary judgment of no cause of action entered against them. Those plaintiffs who named a particular defendant had their claims against all defendants other than the named defendant dismissed.

This action was commenced on September 17, 1974, when plaintiffs filed a complaint alleging that defendants are jointly and severally liable for damages on the theories of negligence, breach of express and implied warranties, fraud and conspiracy. The complaint was amended 14 times. Specifically, the complaint alleged that defendants were negligent in failing to perform adequate tests on the synthetic estrogens known as dienestrol, diethylstilbestrol or diethylstilbestrol diproprionate (hereinafter DES) ¹, in distributing DES and promoting it for the prevention of miscarriages in pregnant women when they knew, or in exercise of due care would have discovered, that it presented a danger to the child In utero, and in failing to warn consumers of the dangers inherent in use of DES to prevent miscarriages. The complaint further alleged that DES was defective in that it was not effective in the prevention of miscarriage, in that it caused the development of cancerous or precancerous lesions in the vaginas of females whose mothers consumed DES while pregnant, and in that the product carried inadequate warnings of the danger presented to unborn children whose mothers consumed DES while pregnant. The female plaintiffs alleged that they developed cancerous or precancerous conditions as a result of the consumption of DES by their mothers while plaintiffs were In untero. The male plaintiffs are husbands of the female plaintiffs.

Plaintiffs' complaint also alleged that the defendants named therein constituted all of the known manufacturers of DES whose products were distributed in Michigan during the relevant time period, that one or more of the named defendants caused the harm to each of the plaintiffs, but that some plaintiffs were unable to discover which particular defendant caused their harm because of the destruction of medical and pharmacy records. Plaintiffs further alleged that the inability to name the individual defendant should not bar recovery, in that defendants were jointly and severally liable for the harm to plaintiffs because all defendants acted wrongfully and only the drug companies named in the suit could have caused plaintiffs' harm. The complaint further alleged that defendants were collectively liable for plaintiffs' harm.

Discovery and other proceedings, for the most part irrelevant to this appeal, consumed more than two years and produced a voluminous record. On February 1, 1977 defendants filed a motion for partial summary judgment alleging: (1) that they were entitled under GCR 1963, 117.2(1) to summary judgment of no cause of action against all plaintiffs who were unable to name the manufacturer of the particular product which caused their injury; (2) that plaintiffs' allegations of collective, industry-wide liability did not state a cause of action cognizable under the laws of the State of Michigan, thus requiring summary judgment as to that claim under GCR 1963, 117.2(1); and (3) that there existed no genuine issue as to any material fact regarding the conspiracy or concert of action count and that defendants were entitled to summary judgment as a matter of law under GCR 1963, 117.2(3). Defendants' motion was supported by affidavits which stated that more than 300 manufacturers were listed in standard reference works as offering DES for sale during the relevant time period. In opposition to the motion, plaintiffs produced affidavits to the effect that the list of defendants was "inclusive of" manufacturers whose products were being distributed in Michigan during the relevant time period.

On May 16, 1977, the trial court issued its opinion granting summary judgment of no cause of action: (1) for all defendants against those plaintiffs unable to allege specifically the defendant whose product harmed them; (2) for all defendants, other than the defendant named, against those plaintiffs who alleged that a particular defendant caused their harm; and (3) for all defendants against all plaintiffs on the claim of collective liability. All judgments were granted pursuant to GCR 1963, 117.2(1).

On August 25, 1977, plaintiffs filed their 14th amended complaint, in which 70 plaintiffs alleged that a particular defendant caused their harm. On the same date, the trial court entered a final order granting partial summary judgment for defendants in accordance with its opinion of May 16, 1977. On September 7, 1977, claim of appeal was filed in this Court on behalf of 182 plaintiffs.

Plaintiffs argue on appeal that the trial court erred, first, in holding that each plaintiff must allege which defendant produced the drug which harmed her in order to state a cause of action and, second, in holding that in their allegations of collective liability plaintiffs failed to state a claim upon which relief may be granted. In reviewing plaintiffs' claims of error, we must keep in mind certain rules. We note first of all that a motion for summary judgment under GCR 1963, 117.2(1) merely tests the legal sufficiency of the pleadings. Todd v. Biglow, 51 Mich.App. 346, 214 N.W.2d 733 (1974). The test is whether plaintiffs' claim as pled is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972). Further, we must bear in mind that a motion under Rule 117.2(1) does not test plaintiffs' ability to prove their allegations. Lompre v. Venetjoki, 76 Mich.App. 521, 257 N.W.2d 151 (1977). The trial court in ruling on the motion must accept as true all well pleaded facts in the complaint. Steward v. Troutt, 73 Mich.App. 378, 251 N.W.2d 594 (1977). On review, this Court must apply the same rules. Lincoln Park Detention Officers v. Lincoln Park, 76 Mich.App. 358, 256 N.W.2d 593 (1977).

The remedy afforded consumers as against sellers and manufacturers of defective goods, which has been termed "products liability", has been described as "not (a) statutory, but essentially a judicial development which the courts should be free to develop further". Parish v. B. F. Goodrich Co., 395 Mich. 271, 235 N.W.2d 570 (1975). See also Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977). It has roots in both contract and tort law, but is distinct...