Anderson v. Eli Lilly & Co.

• Decision Date: 18 December 1991
• Citation: 588 N.E.2d 66,580 N.Y.S.2d 168,79 N.Y.2d 797
• Parties: , 588 N.E.2d 66, 60 USLW 2452, Prod.Liab.Rep. (CCH) P 13,114 Carol ANDERSON et al., Appellants, v. ELI LILLY & COMPANY et al., Respondents, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 168

580 N.Y.S.2d 168

79 N.Y.2d 797, 588 N.E.2d 66, 60 USLW 2452,

Prod.Liab.Rep. (CCH) P 13,114

Carol ANDERSON et al., Appellants, v. ELI LILLY & COMPANY et al., Respondents, et al., Defendants.

Court of Appeals of New York.

Dec. 18, 1991.

Norman E. Frowley, Leonard L. Finz, Stuart L. Finz and Mark Bower, New York City, for appellants.

Russel H. Beatie, Jr., Charna L. Gerstenhaber, Charles J. Biederman, David M. Covey and Jack Gross, New York City, for Eli Lilly & Co. et al., respondents.

Paul K. Stecker and Tamar P. Halpern, Buffalo, for E.R. Squibb & Sons, Inc., respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff, whose wife allegedly suffered certain injuries to her reproductive system due to her in utero exposure to the drug diethylstilbestrol (DES), commenced this action against defendants, several manufacturers of DES, asserting a derivative cause of action for loss of consortium. Prior to trial, defendants moved for summary judgment, contending that plaintiff could not recover for loss of consortium since his wife's exposure to DES and her resultant injuries occurred before the marriage. That motion was granted, and on appeal, the Appellate Division affirmed.

It is by now well settled that a cause of action for loss of consortium does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage (see, Mehtani v. New York Life Ins. Co., 145 A.D.2d 90, 95, 537 N.Y.S.2d 800, lv. denied in part and dismissed in part, 74 N.Y.2d 835, 546 N.Y.S.2d 341, 545 N.E.2d 631; Briggs v. Butterfield Mem. Hosp., 104 A.D.2d 626, 479 N.Y.S.2d 758; Rademacher v. Torbensen, 257 App.Div. 91, 13 N.Y.S.2d 124). ¹ Contrary to plaintiff's contention, the rationale underlying this rule is not limited to situations where the injuries to the spouse in question are manifest at the time of the marriage. As the Appellate Division explained below: "Consortium represents the marital partners' interest in the continuance of the marital relationship as it existed at its inception (see, Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 504-505 [293 N.Y.S.2d 305, 239 N.E.2d 897], not upon some guarantee that the marital partners are free of any preexisting latent injuries" (158 A.D.2d 91, 94, 557 N.Y.S.2d 981; see, Clark v. Lilly & Co., 725 F.Supp. 130, 130-131 [N.D.N.Y.1989]. ²

Plaintiff's contention that the Legislature's enactment of the new discovery Statute of Limitations (CPLR 214-c) dictates a different result here is likewise unavailing. As we recently explained in Enright v. Lilly & Co., 77 N.Y.2d 377, 568 N.Y.S.2d 550, 570 N.E.2d 198, cert. denied, --- U.S. ----, 112 S.Ct. 197, 116 L.Ed.2d 157: "[CPLR 214-c] was directed at opening up traditional avenues of recovery by removing a procedural barrier that was unreasonable given the nature of DES injuries. Nothing in the legislation [however] suggests that the Legislature intended to expand the basis for liability" (id., at 384). Similarly, we find plaintiff's reliance on the so-called revival statute (L.1986, ch. 682, § 4) to be misplaced. That provision merely temporarily revived certain previously time-barred claims--it did not act to create any new causes of action (see, Metauro v. Abbott Labs., 146 Misc.2d 537, 538-539, 551 N.Y.S.2d 444; Walsh v. Armstrong World Indus., 700 F.Supp. 783, 785 [S.D.N.Y.1988].

WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER and TITONE, JJ., concur.

HANCOCK and BELLACOSA, JJ., taking no part.

Order affirmed, with costs, in a memorandum.

1 See also, Annotation, Recovery for Loss of Consortium for Injury Occurring Prior to Marriage, 5 A.L.R.4th 300, 301 (noting that most jurisdictions "have denied recovery for loss of consortium where the injury occurs before the marriage"); ...