Abel v. Eli Lilly and Co.

Decision Date26 March 1984
Docket NumberDocket No. 64712
Citation343 N.W.2d 164,418 Mich. 311
PartiesGail ABEL, et al., Plaintiffs-Appellees, v. ELI LILLY AND COMPANY, et al., Defendants-Appellants. 418 Mich. 311, 343 N.W.2d 164
CourtMichigan Supreme Court

Hayim I. Gross, Birmingham, Charfoos, Christenson, Gilbert & Archer by Lawrence S. Charfoos, J. Douglas Peters, Charles Nichols, Detroit, for plaintiffs-appellees.

Shook, Hardy & Bacon, Lane D. Bauer, Leo P. Dreyer, Larry R. O'Neal, Laura D. Stith, Kansas City, Mo., Dickinson, Wright, Moon, Van Dusen & Freeman, John E.S. Scott, Detroit, for defendant-appellant Eli Lilly and Co. Schureman, Frakes, Glass & Wulfmeier, John C. Frakes, Detroit, Lord, Bissell & Brook, Hugh Moore, Chicago, Ill., for defendant-appellant Abbott Laboratories.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., Edmund M. Brady, Jr., Detroit, for defendant-appellant Blue Line Chemical Co.

Jenkins, Nystrom & Sterlacci, P.C., Dennis H. Nystrom, Southfield, for defendant-appellant Burroughs Wellcome Co.

Johnson, Campbell & Moesta, P.C., Reginald S. Johnson, Detroit, for defendant-appellant Central Pharmacal Co.

Tyler & Canham, P.C., David M. Tyler, Detroit, for defendant-appellant Cole Pharmacal Co.

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

Warner, Norcross & Judd, Wallson G. Knack, John D. Tully, Grand Rapids, Martin, Bacon & Martin, P.C., James N. Martin, Mount Clemens, for defendant-appellant McNeil Laboratories, Inc.

Seavitt, Westcott & Stowe, Perry J. Seavitt, Thomas W. Emery, Detroit, for defendant-appellant Merck, Sharpe & Dohme.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C., Albert A. Miller, Detroit, for defendant-appellant Rexall Drug Co.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., Edmund M. Brady, Jr., Detroit, for defendant-appellant Rorer, Inc.

Dykema, Gossett, Spencer, Goodnow & Trigg by James P. Feeney, Joanne Fiaschetti, Terrence E. Haggerty, Markle & Markle by James A. Markle, Detroit, for Schering/White Laboratories; Henry R. Simon, New York City, James S. Goulding, P.C., James S. Goulding, Detroit, of counsel.

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

Dice, Sweeney, Sullivan & Feikens, P.C., Robert N. Foster, Detroit, for defendant-appellant S.J. Tutag and Co.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C., James G. Smith, Detroit, for defendant-appellant Upjohn Co.

Lacey & Jones, Dennis E. Zacharski, Detroit, for defendant-appellant Vale Chemical Co.

Richard A. Epstein, Chicago, Ill., Honigman, Miller, Schwartz & Cohn by David A. Ettinger, Detroit, for amicus curiae American Ins. Ass'n.

WILLIAMS, Chief Justice.

This case is but one of many filed in state and federal courts by daughters of women who had taken DES during pregnancy and their spouses against the manufacturers of synthetic estrogen products.

Very briefly, synthesis of estrogen was first reported by C.E. Dodds, a British researcher, in 1938. Dr. Dodds never patented the drug, known as diethylstilbestrol or DES, thus allowing any manufacturer to develop the drug who chose to do so. The Food and Drug Administration first granted several companies' requests to market DES for non-pregnancy uses in 1941. In 1947, several companies filed supplemental requests to market DES to prevent complications in pregnancy. The FDA granted permission to market the drug for pregnancy uses the same year, and the drug was thereafter generically marketed 1 for pregnancy uses.

In 1971, Dr. Herbst reported a statistical association between the use of DES by pregnant women and cancer and other cellular abnormalities in the reproductive systems of their children. 2 As a result, the FDA banned the marketing of DES for use by pregnant women. It is the women who were exposedin utero to DES and their spouses who now seek to hold the drug manufacturers liable for their injuries in cases filed throughout the country.

Although each case presents its own factual nuances, one common problem continually reappears: many of the plaintiffs are simply unable to identify the manufacturer of the estrogen product to which they were exposed. The plaintiffs therefore seek some way to circumvent the traditional tort element of causation in fact.

In order to bypass the identification requirement, plaintiffs assert that defendants (who are purportedly all the manufacturers of synthetic estrogens for pregnancy use in Michigan) are jointly and severally liable. Several theories have been advanced to justify this joint liability including alternative liability, concert of action, and what is referred to as "collective" or "industry-wide" liability.

Defendants jointly sought partial summary judgment pursuant to GCR 1963, 117.2(1) against all plaintiffs who were unable to identify the manufacturer of the prescription drug allegedly responsible for their injuries (Motion, 12/23/74, Def App, 41a). The trial judge denied this motion, without prejudice, and ordered further discovery on "the alleged joint or enterprise liability and conspiracy of all defendants" (Order, 3/10/75, Def App, 49a).

After approximately two years of discovery, the defendants again moved jointly for partial summary judgment on the basis of GCR 1963, 117.2(1) and (3). Finding that the plaintiffs had indeed failed to state a cause of action, the trial judge granted summary judgment in favor of defendants and against those plaintiffs who were unable to identify the manufacturer of the drug which allegedly caused their injury. Also, with regard to those plaintiffs able to identify the manufacturer, the court dismissed all other defendants (Order, 8/25/77, Def App, 346a).

On appeal, the Court of Appeals reversed the summary judgment, finding that the plaintiffs had made sufficient allegations to support the alternative liability and concert of action theories. Abel v. Eli Lilly & Co., 94 Mich.App. 59, 77, 289 N.W.2d 20 (1979). The Court of Appeals reviewed only the defendants' GCR 1963, 117.2(1) claims (failure to state a cause of action); the GCR 1963, 117.2(3) issues (no genuine issue of material fact) were not addressed.

We are called upon today to review the correctness of these rulings. We hold that the plaintiffs have made sufficient allegations to support both the concert of action and alternative liability causes of action.

Pleadings

The female plaintiffs in this case allege that they are daughters whose mothers when pregnant with each took a synthetic estrogen product upon their doctor's advice in order to prevent miscarriage. The remaining plaintiffs are spouses of the daughters. 3

The complaint alleges that as a result of prenatal exposure to these drugs, the plaintiffs are now suffering from cancerous or pre-cancerous lesions of the vagina.

According to the complaint, the defendant drug companies 4 actively promoted and sold these drug preparations to the medical community, representing that the drugs were safe and effective for use by pregnant women in the prevention of miscarriage. As a result of these representations the drugs were administered to pregnant women during a time period from 1947 to 1964.

Plaintiffs maintain that the defendants knew or should have known that the drugs which they marketed were derived from stilbene, a known cancer-causing agent, and that scientific investigators had recommended against medical use of stilbene derivatives because of possible cancer risks. The complaint also contends that these synthetic estrogen drugs are ineffective in preventing miscarriage.

Plaintiffs' initial complaint stated that all the plaintiffs' mothers had ingested one of seven synthetic estrogens. This number has since been reduced to three: diethylstilbestrol (DES), dienestrol, and diethylstilbestrol dipropionate (DSD).

The complaint sounds in negligence, breach of express and implied warranty, fraud and deceit, strict liability, and conspiracy. 5 The plaintiffs seek to impose joint and several liability upon all the defendants.

Some plaintiffs have specifically named the product to which they were exposed in utero and its manufacturer. Other plaintiffs acknowledge that they are unable to identify the specific estrogen product and that they are unable to identify the manufacturer that produced or distributed the product. They allege that good-faith efforts have been made to determine the specific product and manufacturer. However, they cite Michigan law, M.C.L. Sec. 338.1118(1); M.S.A. Sec. 14.757(18)(1), which required the preservation of the prescription records of pharmacies for only five years and the generic marketing scheme utilized by defendant drug companies to explain this lack of identification.

Finally, the complaint states that "the defendants named herein constitute all of the known manufacturers or distributors of stilbene derivatives during the time period in controversy: to wit, 1947 to 1964." (Plaintiff's original complaint, p 17.) 6

The answers of defendants generally deny the significant allegations of the complaint.

Motion for Summary Judgment

Defendants moved for a summary judgment under GCR 1963, 117.2(3) which states:

"The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:

* * *

"(3) That except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law."

A motion under subsection 3 asks the court to test the factual foundation of the suit. The defendants have directed the court's scrutiny to three "factual deficiencies" in plaintiffs' case: 1) lack of proof that all defendants are before the court (as required by their alternative liability claim); 2) lack of evidence of concerted activity among the defendants in the promotion and...

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