Hymowitz v. Eli Lilly and Co.

• Decision Date: 04 April 1989
• Citation: 539 N.E.2d 1069,73 N.Y.2d 487,541 N.Y.S.2d 941
• Parties: , 539 N.E.2d 1069, 57 USLW 2589, Prod.Liab.Rep. (CCH) P 12,182 Mindy HYMOWITZ, Respondent, v. ELI LILLY AND COMPANY et al., Appellants, et al., Defendants. Attorney-General of the State of New York, Intervenor-Respondent. Elizabeth TIGUE et al., Respondents, v. E.R. SQUIBB & SONS, INC., et al., Appellants, et al., Defendants. Jane DOLAN et al., Respondents, v. ELI LILLY AND COMPANY et al., Appellants. (And Other Actions.) Barbara HANFLING et al., Respondents, v. ELI LILLY AND COMPANY et al., Appellants, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 941

541 N.Y.S.2d 941

73 N.Y.2d 487, 539 N.E.2d 1069, 57

USLW 2589,

Prod.Liab.Rep. (CCH) P 12,182

Mindy HYMOWITZ, Respondent, v. ELI LILLY AND COMPANY et al., Appellants, et al., Defendants.

Attorney-General of the State of New York, Intervenor-Respondent.

Elizabeth TIGUE et al., Respondents, v. E.R. SQUIBB & SONS, INC., et al., Appellants, et al., Defendants.

Jane DOLAN et al., Respondents, v. ELI LILLY AND COMPANY et al., Appellants.

(And Other Actions.)

Barbara HANFLING et al., Respondents, v. ELI LILLY AND COMPANY et al., Appellants, et al., Defendants.

Court of Appeals of New York.

April 4, 1989.

Certiorari Denied Oct. 30, 1989.

See 110 S.Ct. 350.

Russel H. Beatie, Jr., Sanford N. Berland and Susan A. Winston, New York City, for Eli Lilly and Co., appellant in the first above-entitled action.

Karl E. Seib, Jr., and Robert D. Wilson, Jr., New York City, for Abbott Laboratories, appellant in the first above-entitled action.

Robert M. Dato, David J. Fleming, Santa Monica, Cal., Barry M. Epstein and Lindsay H. Lew, Newark, N.J., for E.R. Squibb & Sons, Inc., appellant in the first above-entitled action.

Robin J. Stout, Jay P. Mayesh and William A. Rome, New York City, for The Upjohn Company, appellant in the first above-entitled action.

Paul D. Rheingold, New York City, for respondent in the first above-entitled action.

Robert Abrams, Atty. Gen. (Andrea Green and O. Peter Sherwood, New York City, of counsel), intervenor-respondent pro se in the first above-entitled action.

Herbert Semmel, New York City, for New York Public Interest Research Group, Inc., and others, amici curiae, in the first above-entitled action.

Alexander C. Cordes, Paul K. Stecker, Buffalo, Marc S. Klein, Lindsay H. Lew, Newark, N.J., David J. Fleming and Robert M. Dato, Santa Monica, Cal., for E.R. Squibb & Sons, Inc., appellant in the second above-entitled action.

John L. McGoldrick, Newark, N.J., Karl E. Seib, Jr., Theodore V.H. Mayer, New York City, John F. Brenner, Newark, N.J., and Charles S. Lozow, New York City, for Abbott Laboratories and others, appellants in the second above-entitled action.

A. Edward Grashof, Thomas F. Clauss, Jr., Sheila Moeller Fessler and Paul A. Scrudato, New York City, for Rexall Drug Co., appellant in the second above-entitled action.

Jay P. Mayesh, Burton N. Lipshie, Robin J. Stout and William A. Rome, New York City, for The Upjohn Co., appellant in the second above-entitled action.

Charles M. McCaghey and William K. Dodds, New York City, for Boyle & Co., appellant in the second above-entitled action.

Paul D. Rheingold, New York City, for respondents in the second above-entitled action.

Sharon E. Jaffe, Joseph A. DiBenedetto, New York City, and Lisa A. Schoolman, Setauket, for Rorer Pharmaceutical Corp., appellant in the third above-entitled action.

Alexander C. Cordes, Paul K. Stecker, Buffalo, Barry M. Epstein, Marc S. Klein, Lindsay H. Lew, Newark, N.J., David J. Fleming and Robert M. Dato, Santa Monica, Cal., for E.R. Squibb & Sons, Inc., appellant in the third above-entitled action, relying upon its briefs in Hymowitz and Tigue.

Jay P. Mayesh, Burton N. Lipshie, Robin J. Stout, Carole W. Nimaroff and William A. Rome, New York City, for The Upjohn Co., appellant in the third above-entitled action. Same points as in Tigue.

Russell H. Beatie, Jr., Sanford N. Berland and Susan A. Winston, New York City, for Eli Lilly & Co., appellant in the third above-entitled action.

William D. Fireman and Alfred S. Julien, New York City, for Jane Dolan and others, respondents in the third above-entitled action.

Sybil Shainwald, Howard Eison, New York City, and Perry S. Reich, for Erin Murphy and another, respondents in the third above-entitled action.

W. Burlette Carter, Theodore V.H. Mayer and Charles Lozow, New York City, for Merck & Co., Inc., appellant in the fourth above-entitled action.

Russell H. Beatie, Jr., Kenneth J. King and Charna L. Gerstenhaber, New York City, for Eli Lilly and Co., appellant in the fourth above-entitled action.

Karl E. Seib, Jr., and Robert D. Wilson, Jr., New York City, for Abbott Laboratories, appellant in the fourth above-entitled action.

Robin J. Stout, James T. Conlon, David M. Covey and Ann L. Wilson, New York City, for The Upjohn Co., appellant in the fourth above-entitled action.

Herald Price Fahringer, Arthur M. Luxenberg, Morris J. Eisen and Perry Weitz, New York City, for respondents in the fourth above-entitled action.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Plaintiffs in these appeals allege that they were injured by the drug diethylstilbestrol (DES) ingested by their mothers during pregnancy. They seek relief against defendant DES manufacturers. While not class actions, these cases are representative of nearly 500 similar actions pending in the courts in this State; the rules articulated by the court here, therefore, must do justice and be administratively feasible in the context of this mass litigation. With this in mind, we now resolve the issue twice expressly left open by this court, and adopt a market share theory, using a national market, for determining liability and apportioning damages in DES cases in which identification of the manufacturer of the drug that injured the plaintiff is impossible (see, Kaufman v. Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 482 N.E.2d 63; Bichler v. Lilly & Co., 55 N.Y.2d 571, 580, 450 N.Y.S.2d 776, 436 N.E.2d 182). We also hold that the Legislature's revival for one year of actions for injuries caused by DES that were previously barred by the Statute of Limitations (see, L. 1986, ch. 682, § 4) is constitutional under the State and Federal Constitutions.

I.

The history of the development of DES and its marketing in this country has been repeatedly chronicled (see, e.g., Bichler v. Lilly & Co., supra; Martin v. Abbott Labs., 102 Wash.2d 581, 689 P.2d 368; Sindell v. Abbott Labs., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. denied 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140; Sheiner, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963). Briefly, DES is a synthetic substance that mimics the effect of estrogen, the naturally formed female hormone. It was invented in 1937 by British researchers, but never patented.

In 1941, the Food and Drug Administration (FDA) approved the new drug applications (NDA) of 12 manufacturers to market DES for the treatment of various maladies, not directly involving pregnancy. In 1947, the FDA began approving the NDAs of manufacturers to market DES for the purpose of preventing human miscarriages; by 1951, the FDA had concluded that DES was generally safe for pregnancy use, and stopped requiring the filing of NDAs when new manufacturers sought to produce the drug for this purpose. In 1971, however, 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 took the drug. Specifically, tests indicated that DES caused vaginal adenocarcinoma, a form of cancer, and adenosis, a precancerous vaginal or cervical growth.

Although strong evidence links prenatal DES exposure to later development of serious medical problems, plaintiffs seeking relief in court for their injuries faced two formidable and fundamental barriers to recovery in this State; not only is identification of the manufacturer of the DES ingested in a particular case generally impossible, but, due to the latent nature of DES injuries, many claims were barred by the Statute of Limitations before the injury was discovered.

The identification problem has many causes. All DES was of identical chemical composition. Druggists usually filled prescriptions from whatever was on hand. Approximately 300 manufacturers produced the drug, with companies entering and leaving the market continuously during the 24 years that DES was sold for pregnancy use. The long latency period of a DES injury compounds the identification problem; memories fade, records are lost or destroyed, and witnesses die. Thus the pregnant women who took DES generally never knew who produced the drug they took, and there was no reason to attempt to discover this fact until many years after ingestion, at which time the information is not available.

We recognized this predicament in Bichler v. Lilly & Co. (supra, 55 N.Y.2d at 579, 450 N.Y.S.2d 776, 436 N.E.2d 182), where the court stated that in DES cases it is a "practical impossibility for most victims [to] pinpoint * * * the manufacturer directly responsible for their particular injury". We allowed plaintiff's recovery in that case, however, notwithstanding the failure of the plaintiff to identify the manufacturer of the injurious DES, on the limited basis that "the evidence was legally sufficient to support the jury verdict for the plaintiff" on the law as charged to the jury, and unobjected to by the defendant (see, Kaufman v. Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 482 N.E.2d 63, supra). The question, therefore, of whether nonidentification of the manufacturer precludes plaintiffs from recovering for DES caused injuries, remained unresolved after Bichler v. Lilly & Co. (supra).

The second barrier to recovery, involving the Statute of Limitations, arose from the long-standing rule in this State that the limitations period accrued upon exposure in actions alleging personal injury caused by toxic substances (Fleishman v. Lilly & Co., 62 N.Y.2d 888, 478 N.Y.S.2d 853, 467 N.E.2d 517, cert. denied 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 972). In Fleishman v. Lilly & Co. (supra) it became clear that this exposure rule led to many DES cases being barred by the Statute of Limitations before the discovery of injury; we held, however, that any change in the accrual date from exposure to discovery was more properly the prerogative of the Legislature (id., at 890, 478 N.Y.S.2d 853, 467 N.E.2d 517; see, id., at 891, 478 N.Y.S.2d 853, 467 N.E.2d...