Morrissy v. Eli Lilly & Co.

• Decision Date: 18 September 1979
• Docket Number: No. 78-146,78-146
• Citation: 394 N.E.2d 1369,32 Ill.Dec. 30,76 Ill.App.3d 753
• Court: United States Appellate Court of Illinois
• Parties: , 32 Ill.Dec. 30 Mary Jule MORRISSY, Individually and as a representative and member of a Class of Persons Similarly Situated, Plaintiff-Appellant, v. ELI LILLY & COMPANY, a corporation, et al., Defendants-Appellees.

Page 1369

394 N.E.2d 1369

76 Ill.App.3d 753, 32 Ill.Dec. 30

Mary Jule MORRISSY, Individually and as a representative and member of a Class of Persons Similarly Situated Plaintiff-Appellant, v. ELI LILLY & COMPANY, a corporation, et al., Defendants-Appellees.

No. 78-146.

Appellate Court of Illinois, First District, Second Division.

Sept. 18, 1979.

William J. Harte, Ltd., Chicago, for plaintiff-appellant; Kevin M. Forde, Timothy Michael O'Brien, Chicago, of counsel.

Burditt & Calkins, Baker & McKenzie, Chicago, for defendants-appellees E. R. Squibb & Sons, Inc. and the Upjohn Co.; George M. Burditt, James W. Hathaway, Donald A. O'Brien, Chicago, Francis D. Morrissey, Thomas F. Tobin, Harry J. O'Kane, Edward J. Zulkey, Chicago, of counsel.

Wildman, Harrold, Allen & Dixon, Chicago, Shook, Hardy & Bacon, Kansas City, Mo., for defendant-appellee Eli Lilly and Co.; Max Wildman, Richard C. Bartelt, Anne G. Kimball, Chicago, Lane D. Bauer, Laurel H. Corn, Steven C. Parrish, Kansas City, Mo., of counsel.

Lord, Bissell & Brook, Chicago, for defendant-appellee Abbott Laboratories; Hugh L. Moore, Chicago, of counsel.

HARTMAN, Justice:

This appeal is taken from orders of the trial court dismissing plaintiff's complaint, wherein she proposes two classes composed of the daughters of certain women who used the drug Diethylstilbestrol (hereinafter "DES") during pregnancy. These daughters are alleged by plaintiff to have been injured as a result of prenatal exposure to DES.

Her second amended complaint (hereinafter "complaint") ¹ names as defendants 27 alleged manufacturers and sellers of DES, in addition to the Chicago Lying-In Hospital (hereinafter "hospital"). Count I thereof is directed against all defendants except the hospital. Among the allegations are that from 1947 through the 1960s defendants manufactured, promoted, advertised and sold to numerous pregnant women in Illinois DES that was not reasonably safe for its acknowledged and intended purposes when it left their control; that DES is contraindicated, in pregnancy; that the pharmacological action of DES in pregnant females caused more abortions than it prevented; that DES is a carcinogen in females and their offspring; that certain testing available to determine carcinogenic effects of DES on humans was not done prior to its availability; that the only testing so done was inadequate and irresponsible; and that no warnings of the carcinogenic effects of DES were given.

Plaintiff further avers in Count I that defendants agreed to and did jointly promote the supposed safety and efficacy of DES until, based upon their representations, the Federal Food and Drug Administration (hereinafter "FDA") allowed the commercial sale of DES generally and later for use during pregnancy. Certain of the defendants are alleged to be " * * * members of a group of drug firms which jointly agreed to (and did) cause * * * erroneous, misleading, or incomplete written submissions to be made to the FDA * * *" respecting the safety and efficacy of DES, to the injury of plaintiff and all members of the proposed class. ² Nevertheless, as defendants allegedly knew, DES was neither safe nor efficient in managing problem pregnancies; shortly after the release of DES for commercial sale, physicians "throughout the country" determined that DES had no therapeutic value in pregnancy.

Plaintiff is represented as one of "a substantial number" of female children born as a result of the pregnancies referred to hereinabove and therefore exposed to DES In utero, suing " * * * in her own behalf, and also as a representative of a Class of all Illinois D.E.S. daughters that is, the Class of all female children born in Illinois of mothers who purchased and ingested the D.E.S. manufactured, promoted, advertised and sold by the Defendants in Illinois, from 1947 through the 1960's." As a proximate result of the nature and conditions of DES, all members of the proposed class have developed cancerous lesions, adenocarcinoma, adenosis, or certain tumors or cytological abnormalities which in time will generate adenocarcinoma or other cancerous conditions. Since a latent period of presently indeterminable length occurs between the genesis of carcinoma and the onset of clinically observable symptoms capable of being diagnosed and treated, many members of the proposed class do not know they are DES daughters or, knowing this, that they are within a latent period. Still others exhibiting symptoms have not received "adequate medical management," without which each member of the proposed class is in jeopardy from the conditions caused by DES. There is as a consequence, plaintiff claims, an urgent need to:

"a) Identify and locate each Class member, to the extent reasonably possible.

b) Convey sufficient information concerning the effects of D.E.S. to each Class member.

c) Provide each Class member with adequate medical management of her condition for the rest of her life; or, provide each Class member with the opportunity to obtain adequate medical management of her condition for the rest of her life."

Count I concludes with a prayer for relief principally in the form of establishment of several funds totalling $41,250,000 to be administered by the court toward satisfaction of the aforesaid needs.

Count II is directed against the hospital and defendant Eli Lilly and Company (hereinafter "Lilly") and alleges that defendants conducted an experimental study concerning the possible therapeutic value of DES during pregnancy (known as the "Dieckmann study" after William J. Dieckmann, one of the physicians involved); that in the course of the study 840 pregnant women were medicated with DES without their knowledge, being told by defendants only that the medication given was safe for them and their children in order to induce participation; that defendants knew these representations of safety were untrue; and that relying upon these representations through her mother, who participated in the study, plaintiff has sustained "serious and permanent damage." Incorporated by reference are those allegations of Count I relating to latent periods in the diseases alleged to be developing in class members as a consequence of DES exposure and the consequent need to identify, inform and provide medical management for each class member.

Plaintiff claims to be a member of and represent " * * * a class of all DES daughters whose mothers were medicated with DES at the HOSPITAL during the experimental 'Dieckmann study.' " Her prayer for relief is that defendants be directed " * * * to establish and maintain a fund of money reasonably calculated to compensate all class members for such medical expenses which have been and will continue to be incurred due to the physiological damage done by the DES," and to pay other damages to the class. By way of equitable relief, she seeks establishment of a fund in an unspecified amount to provide for identifying, locating and informing each class member.

On November 19, 1976, the court ordered that " * * * because common questions of law and fact do not predominate, plaintiff cannot represent a class consisting of daughters of mothers who have consumed DES as stated in Count I * * *" to seek any of the substantive remedies enumerated therein except notice to members of the class of their exposure to DES In utero and its possible consequences. On June 3, 1977, the court dismissed the remainder of Count I, finding " * * * that other agencies are responsible for any such notice and * * * that the giving of any notice might well prove impossible * * *." On November 3, 1977, the court dismissed Count II of the complaint " * * * primarily because common questions of law and fact do not predominate over the claims of the class members arising out of separate transactions." The prior orders of November 19, 1976 and June 3, 1977 were at the same time made final; all three orders are the subject of this appeal.

Defendants argue that because plaintiff is informed of her exposure to DES, is receiving medical care for her alleged condition, and her mother ingested DES manufactured by only one of the several defendants, her representative cause of action should be dismissed; however, the nature of the continuing relief sought for herself and the proposed classes and the alleged concerted action by defendants are sufficient to state a cause of action for the purpose of this appeal.

The statutory requirements for maintenance of a class in Illinois under section 57.2 of the Civil Practice Act are well known, and their applicability to this appeal is undisputed by the parties. (Ill.Rev.Stat.1977, ch. 110, par. 57.2; Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634.) Each requirement is dealt with at some length in the briefs submitted herein. In view of our determination, however, we find it necessary to discuss only the second enumerated requirement, that "(t)here are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members." (Ill.Rev.Stat.1977, ch. 110, par. 57.2(a)(2).) Far from being new law in its statutory form, this provision codifies prior Illinois decisional law to the effect that a proper class action must present circumstances giving rise to questions of law or fact common to all class members which predominate over any issues which may affect only individual members. Forde, Illinois's New Class Action Statute, 59 Chi.Bar Rec. 120, 123 (1977). ³

This requirement has been the subject of frequent judicial comment, both prior and subsequent to its embodiment in section 57.2. (See McCabe v. Burgess (1978), 57 Ill.App.3d 450, 454, 15 Ill.Dec. 57, 373 N.E.2d 327; Rev'd on other grounds, 75 Ill.2d 457, 27 Ill.Dec. 501, 389 N.E.2d 565.) In the context of personal injury actions, however, a notable dearth of Illinois authority on point is balanced by Federal court...