Mulcahy v. Eli Lilly & Co., No. 85-685

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSCHULTZ; All Justices concur except LAVORATO
Citation386 N.W.2d 67
Parties, Prod.Liab.Rep. (CCH) P 10,982 Linda MULCAHY and Michael Mulcahy, Personally and Individually, and as Parents and Natural Guardians of Matthew Mulcahy and Marc Mulcahy, Minors, Plaintiffs, v. ELI LILLY & COMPANY, a New Jersey Corporation, Movant; Abbott Laboratories, an Illinois Corporation; American Home Products Corporation, a Delaware Corporation, Movant; the Boyle Company, a California Corporation; Breon Laboratories, Inc., a New York Corporation; Burroughs-Wellcome Company, a North Carolina Corporation; Carnrick Laboratories, Inc., a New Jersey Corporation; Cooper Laboratories, Inc., a Delaware Corporation, Movant; Forest-McKesson, Inc., a Maryland Corporation; Merck, Sharp & Dohme, a Delaware Corporation, Movant; Miles Laboratories, Inc., an Indiana Corporation; Ortho Pharmaceutical Corporation, a New Jersey Corporation, Movant; Rexall Drug Company, a Delaware Corporation, Movant; Merrell-Dow Pharmaceutical, Inc., a Delaware Corporation, Movant; Sandoz, Inc., a Delaware Corporation; Schering Corporation, a New Jersey Corporation, Movant; E.R. Squibb & Sons, Inc., a Delaware Corporation, Movant; the Upjohn Company, a Delaware Corporation; Winthrop Laboratories, Inc., a Delaware Corporation; Emons Industries, Inc., a New York Corporation; Glaxo, Inc., a Maryland Corporation; Johnson & Johnson Products, Inc., a New Jersey Corporation, Movant; and Premo Pharmaceutical Laboratories, Inc., Now Known as Lemmon Company of New Jersey, Inc., a New Jersey Corporation, Movant, Defendants-Movants.
Docket NumberNo. 85-685
Decision Date16 April 1986

Page 67

386 N.W.2d 67
54 USLW 2566, Prod.Liab.Rep. (CCH) P 10,982
Linda MULCAHY and Michael Mulcahy, Personally and Individually, and as Parents and Natural Guardians of Matthew Mulcahy and Marc Mulcahy, Minors, Plaintiffs,
v.
ELI LILLY & COMPANY, a New Jersey Corporation, Movant; Abbott Laboratories, an Illinois Corporation; American Home Products Corporation, a Delaware Corporation, Movant; the Boyle Company, a California Corporation; Breon Laboratories, Inc., a New York Corporation; Burroughs-Wellcome Company, a North Carolina Corporation; Carnrick Laboratories, Inc., a New Jersey Corporation; Cooper Laboratories, Inc., a Delaware Corporation, Movant; Forest-McKesson, Inc., a Maryland Corporation; Merck, Sharp & Dohme, a Delaware Corporation, Movant; Miles Laboratories, Inc., an Indiana Corporation; Ortho Pharmaceutical Corporation, a New Jersey Corporation, Movant; Rexall Drug Company, a Delaware Corporation, Movant; Merrell-Dow Pharmaceutical, Inc., a Delaware Corporation, Movant; Sandoz, Inc., a Delaware Corporation; Schering Corporation, a New Jersey Corporation, Movant; E.R. Squibb & Sons, Inc., a Delaware Corporation, Movant; the Upjohn Company, a Delaware Corporation; Winthrop Laboratories, Inc., a Delaware Corporation; Emons Industries, Inc., a New York Corporation; Glaxo, Inc., a Maryland Corporation; Johnson & Johnson Products, Inc., a New Jersey Corporation, Movant; and Premo Pharmaceutical Laboratories, Inc., Now Known as Lemmon Company of New Jersey, Inc., a New Jersey Corporation, Movant, Defendants-Movants.
No. 85-685.
Supreme Court of Iowa.
April 16, 1986.

Page 68

David M. Elderkin and Edward M. Blando, of Elderkin, Pirnie, Von Lackum & Elderkin, Cedar Rapids, for defendant-movant Merck.

L.W. Rosebrook and David Swinton, of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, Des Moines, and John C. Mott of Zarlengo, Mott & Zarlengo, Denver, Colo., for defendant-movant Miles Laboratories.

Charles T. Traw, of Leff, Leff, Leff, Haupert & Traw, Iowa City, for defendants-movants Johnson & Johnson and Ortho Pharmaceutical.

William M. Tucker, Bruce L. Walker, and Mary E. Phelan, of Phelan, Tucker, Boyle & Mullen, Iowa City, and A. Edward Grashof, New York City, for defendant-movant Rexall.

Raymond R. Stefani and Frank S. Mitvalsky, of Silliman, Gray & Stapleton, Cedar Rapids, for defendant-movant Merrell-Dow Pharmaceuticals.

Timothy S. White, Michael L. Koon, and J. Richard Johnson, of White & Warbasse, Cedar Rapids, for defendant-movant Sandoz.

D.G. Ribble, of Lynch, Dallas, Smith & Harman, Cedar Rapids, for defendant-movant Schering.

Ross H. Sidney, of Grefe & Sidney, Des Moines, and Lane D. Bauer, Larry R. O'Neal, Stephen E. Scheve, and Andrew See of Shook, Hardy & Bacon, Kansas City, for defendant-movant Eli Lilly.

L.R. Voigts and Richard J. Sapp, of Nyemaster, Goode, McLaughlin, Emery & O'Brien, Des Moines, for defendant-movant Abbott Laboratories.

Don N. Kersten and Stephen G. Kersten, of Kersten, Opheim, Carlson & Trevino, Fort Dodge, for defendant-movant American Home Products.

Wayne C. Collins, David D. Vestal, and Mark C. Zaiger, of Shuttleworth & Ingersoll, Cedar Rapids, for defendants-movants Breon Laboratories and Winthrop Laboratories.

Lawrence E. Blades and William H. Carmichael, of Blades & Carmichael, Cedar Rapids, for defendant-movant Burroughs-Wellcome.

James W. Crawford and Daniel J. McDermott, of Crawford, Sullivan, Read & Roemerman, Cedar Rapids, for defendant-movant Carnrick Laboratories.

Terry J. Abernathy, of Pickens, Barnes & Abernathy, Cedar Rapids, for defendant-movant Cooper Laboratories.

Hearst R. Duncan, Jr., and R. Todd Gaffney, of Duncan, Jones, Riley & Finley, Des Moines, for defendant-movant Upjohn.

Bennett A. Webster and Brent B. Green, of Gamble, Riepe, Webster, Davis & Green, Des Moines, and John H. Schafer, Michael S. Bernstein, and Michael Roth, of Covington & Burling, Washington, D.C., for defendant-movant Glaxo.

William C. Davidson and Constance A. Schriver, of Lane & Waterman, Davenport, for defendant-movant Premo Pharmaceutical.

Jeffrey A. Boehlert and Michael D. Huppert, of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker & Ordway, Des Moines, and Robert L. Kaufman, of Haight, Dickson, Brown & Bonesteel, Santa Monica, Cal., for defendant-movant Squibb.

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Randall Nazette, of Nazette, Hendrickson, Marner & Good, Cedar Rapids, and Gerald P. McDermott and Daniel M. Reilly, of McDermott, Hansen, Anderson & Reilly, Denver, Colo., for plaintiffs.

Considered en banc.

SCHULTZ, Justice.

The central issue here is whether we will depart from our rule of causation that a plaintiff in a products liability action bears the burden of proving the defendant manufactured or supplied the product that caused the injury. Plaintiffs maintain they are injured due to the ingestion in 1949 of a drug, a synthetic estrogen compound of stilbene derivatives which we shall refer to as DES. Plaintiffs are not able to specifically identify the manufacturer of the drug ingested. Consequently, they commenced this action against a group of drug companies who allegedly manufactured DES in 1949. Plaintiffs claim they are the innocent victims of tortious conduct and that their inability to identify the specific manufacturer of the drug after such a long period of time is due to no fault of their own. They urge that we fashion, as a matter of policy based on justice and fundamental fairness, a fair and equitable remedy by shifting the burden of proof as to who manufactured or supplied the product to the DES manufacturers.

The plaintiffs Linda Mulcahy and Michael Mulcahy seek damages personally and as natural guardians for their two children. In 1949 Cleo Rorman was prescribed and ingested DES during her pregnancy with Linda Mulcahy. Plaintiffs allege Linda sustained injury by in utero exposure to DES. Further, they claim such exposure caused Linda to give birth prematurely to her two children in 1973 and 1976 and that they sustained injury as a result.

Plaintiffs commenced their action in the United States District Court for the Northern District of Iowa. They filed suit against 25 companies alleged to have manufactured and marketed DES at the time of the ingestion. Plaintiffs have set forth theories of recovery against the defendants based upon strict liability, negligence, misrepresentation, breach of warranties, alternate liability, enterprise liability, market share liability, and concert of action. The record reflects that only three defendants sold DES in Ames, Iowa, in 1949; however, plaintiffs request we assess industry-wide liability against all defendants.

All defendants filed motions for summary judgment in federal district court arguing that there was no evidence as to which defendant marketed or manufactured the DES which Mrs. Rorman ingested. The federal district court reserved ruling on the motions of the three companies that had sales in Ames, Iowa, but held that summary judgment in favor of the remaining defendants would be appropriate "unless Iowa law permits imposition of liability on a defendant without evidence that the defendant manufactured or marketed the particular product that is alleged to have caused the injury." Pursuant to Iowa Code chapter 684A and Iowa Rules of Appellate Procedure 451-61, the federal district court certified questions of law to us and provided a statement of facts.

The federal court posed the facts as follows:

a. In this action, filed August 30, 1983, plaintiffs seek actual and punitive damages against twenty-five (25) drug companies who allegedly manufactured or marketed synthetic estrogen compounds of stilbene derivatives known as Dienstrol, Diethylstilbestrol Diproprionate, and Diethylstilbestrol (hereinafter referred to as DES).

b. Plaintiffs seek to recover for injuries allegedly caused by the ingestion of DES in 1949 by the plaintiff Linda Mulcahy's mother, Mrs. Cleo Rorman, while pregnant with Linda Mulcahy.

c. Mrs. Rorman was prescribed by her physician Dr. Lee E. Rosebrook in Ames, Iowa, where Mrs. Rorman resided in 1949. Dr. Rosebrook's records indicate that he prescribed DES for Mrs. Rorman in 1949, initially in a 2 mg. dosage to be taken once daily, and later

Page 70

changed to a 5 mg. dosage. Dr. Rosebrook did not specify any particular brand or trade name of DES when he wrote prescriptions for his patients.

d. After conducting extensive discovery, plaintiffs were unable to positively identify which defendant(s) manufactured or marketed the particular DES that was ingested by Mrs. Rorman in 1949. Mrs. Rorman cannot remember where she filled any prescription for DES that she received from Dr. Rosebrook in 1949. She does not remember what the medication she took during pregnancy looked like, its form or any other identifying characteristic. Mrs. Rorman's husband, Wayne Rorman, is unable to identify the pharmacy where any prescription for DES for his wife was filled in 1949, but believes it was one of the downtown pharmacies.

e. Plaintiffs have evidence that DES manufactured by Eli Lilly & Co. was available in at least one pharmacy in Ames, Iowa, in 1949. Plaintiffs assert that they have evidence that DES manufactured by Abbott Laboratories, Inc. and the Upjohn Company may have been available in one Ames, Iowa, pharmacy in 1949.

The federal court posed the following questions:

a. In a DES product liability case when a product has been ingested by a user and when, after exhaustive discovery, and through no fault of any party, the manufactuer or seller of the ingested product cannot be positively identified, will Iowa law recognize any of the following theories of liability:

(1) Market share liability;

(2) Alternative liability; and

(3) Enterprise liability?

b. If Iowa law will recognize any of these theories of recovery when the product ingested and its manufacturer or seller cannot be positively identified,

(1) What must the plaintiff prove before the burden of proof and/or...

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40 practice notes
  • In re Dow Corning Corp., No. 95-20512.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • June 22, 2000
    ...Products Liability § 179. The theory has been adopted by some jurisdictions and rejected by others. Compare Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 75-76 (Iowa 1986) (rejecting market-share theory because "awarding damages to an admitted innocent party by means of a court-constructed dev......
  • Shackil v. Lederle Laboratories, a Div. of American Cyanamid Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1989
    ...527 N.E.2d 333 (1988) (adopting theory of liability enunciated in Martin, supra, in context of DES). But see Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 76 (Iowa 1986) (rejecting market share theory in DES context on policy grounds and categorizing approach as more appropriately within the l......
  • Smith v. Eli Lilly & Co., Nos. 85-0633
    • United States
    • United States Appellate Court of Illinois
    • May 25, 1988
    ...Missouri, have unqualifiedly rejected all theories of collective responsibility in DES litigation. (Mulcahy v. Eli Lilly & Co. (1986), 386 N.W.2d 67; Zafft v. Eli Lilly & Co. (Mo.1984), 676 S.W.2d 241.) Other courts have rejected the theories either in the context of what they consider to b......
  • Waitt v. Speed Control, Inc., Nos. C-00-4060-MWB, C-00-4087-MWB (N.D. Iowa 6/28/2002), Nos. C-00-4060-MWB, C-00-4087-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 28, 2002
    ...502 N.W.2d 288, 291 (Iowa Ct. App. 1993). Causation is another essential element in a negligence action. Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 72 (Iowa 1986); Iowa Electric Light & Power Co. v. General Electric Co., 352 N.W.2d 231, 234 (Iowa 1984). The causation requirement entails pro......
  • Request a trial to view additional results
39 cases
  • In re Dow Corning Corp., No. 95-20512.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • June 22, 2000
    ...Products Liability § 179. The theory has been adopted by some jurisdictions and rejected by others. Compare Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 75-76 (Iowa 1986) (rejecting market-share theory because "awarding damages to an admitted innocent party by means of a court-constructed dev......
  • Shackil v. Lederle Laboratories, a Div. of American Cyanamid Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1989
    ...527 N.E.2d 333 (1988) (adopting theory of liability enunciated in Martin, supra, in context of DES). But see Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 76 (Iowa 1986) (rejecting market share theory in DES context on policy grounds and categorizing approach as more appropriately within the l......
  • Smith v. Eli Lilly & Co., Nos. 67732
    • United States
    • Supreme Court of Illinois
    • July 3, 1990
    ...in DES daughter cases. The Iowa Supreme Court rejected the doctrine "on a broad policy basis." (Mulcahy v. Eli Lilly & Co. (Iowa 1986), 386 N.W.2d 67, 75.) Mulcahy equated the theory with a court-constructed insurance plan which requires manufacturers to pay for injuries their product may n......
  • Smith v. Eli Lilly & Co., Nos. 85-0633
    • United States
    • United States Appellate Court of Illinois
    • May 25, 1988
    ...Missouri, have unqualifiedly rejected all theories of collective responsibility in DES litigation. (Mulcahy v. Eli Lilly & Co. (1986), 386 N.W.2d 67; Zafft v. Eli Lilly & Co. (Mo.1984), 676 S.W.2d 241.) Other courts have rejected the theories either in the context of what they consider to b......
  • Request a trial to view additional results

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