Namm v. Charles E. Frosst and Co., Inc.
| Decision Date | 05 February 1981 |
| Citation | 427 A.2d 1121,178 N.J.Super. 19 |
| Parties | Gail NAMM and Paul Namm, her husband, Plaintiffs-Appellants, v. CHARLES E. FROSST AND CO., INC., Lakeside Labs, a division of Colgate Palmolive Co., Ayerst McKenna and Harrison Ltd., S. P. Durst and Co. Inc., Metropolitan Labs, Inc., a division of Michigan Chemical Corp., Drug Products Company, Harrower Labs Inc., Winthrop Products, a division of Sterling Drug Inc., Schieffelin Co., Difco Labs Inc., Kremers-Urban Co., Buffingtons Inc., Raymer Pharmacal Co., Lederle Labs, a division of American Cynamid Co., Pro-Medico Labs Inc., Pitman-Moore Co., a division of Dow Chemical Co., Ziegler Pharmacal Co., J. F. Hartz and Co., United Drug Co., Adson-Intrasol Labs Inc., Physicians Drug and Supply Co., Shores Co., Vanpatten Pharm Co., Broad Research Labs Inc., William F. Straub and Co., Mutual Pharmacal Co., C. B. Kendall Co., a division of Westerfield Pharm Co., Direct Sales Co., Inc., Hoosier Pharmacal Co., Purity Drug Co., Inc., Glaxo Research Ltd./England Horton and Converse, Fidelity Med Supply Co., High Chemical Co., a division of Day and Frick, Inc., Verax Prods Inc., Beatrice Scientific Co., successor in interest to Westfield Laboratories, Inc., and Grant Chemical Co., Defendants, and Eli Lilly & Company, Durr-Fillauer Medical, Inc., Abbott Labs, Ayerst Labs Inc., a division of American Home Products Corp., E. R. Squibb and Sons Inc., a division of Olin Mathison Chemical Corp., Merck Sharp and Bohme, a division of Merck and Co., Inc., Armour Labs, a division of Armour Pharm. Co., Winthrop Chemical Co., Upjohn Company, Merrell-National Labs, a division of Richardson-Merrell Inc., Burroughs Wellcome and Co., Inc., Smith Miller and Patch Inc., Endo Products Inc., Crookes Labs Inc., William H. Rorer Inc., Carroll D. Smith Pharmacal Co., a division of Smith Miller and Patch Inc., Cole Pharmacal Co., McNeil Labs Inc., Harvey Labs Inc., Pennwalt Corporation, successor to R. J. Strasenburgh, Inc., improperly designated as R. J. Strasenburgh Labs, a division of Wallace and Ti |
| Court | New Jersey Superior Court — Appellate Division |
Morris M. Schnitzer, Newark, for plaintiffs-appellants (Freeman, Friedman, Mantel, Wilson & Carney, Newark, attorneys; Morris M. Schnitzer on the brief).
John L. McGoldrick, Newark, for defendant-respondent Eli Lilly and Co. (McCarter & English, Newark, attorneys; John L. McGoldrick on the brief).
Stryker, Tams & Dill, Morristown, for defendants-respondents, Durr-Fillauer Medical, Inc., improperly designated Premo Pharmaceutical Laboratories, Inc. (David L. Menzel, Morristown, on the letter brief).
Carpenter, Bennett & Morrissey, Newark, for defendant-respondent Endo Laboratories, Inc. (John P. Dwyer, Newark, of counsel; Linda B. Celauro, Newark, on the brief).
Riker, Danzig, Scherer, Debevoise & Hyland, Newark, for defendant-respondent Merrell-National Laboratories, a division of Richardson-Merrell Inc. (Peter N. Perretti, Jr., Newark, of counsel; Susan Scott, Newark, on the brief).
Connell, Foley & Geiser, Newark, for defendant-respondent The Blue Line Chemical Co.
Lum, Biunno & Tompkins, Newark, for defendant-respondent Abbott Laboratories.
Porzio & Bromberg, P. C., Morristown, for defendants-respondents Ayerst Laboratories, Division of American Home Products Corp., and McNeil Laboratories, improperly designated "McNeil Labs Inc."
Sills, Beck, Cummis, Radin & Tischman, Newark, for defendant-respondent E. R. Squibb & Sons, Inc.
Shanley & Fisher, Newark, for defendant-respondent Merck Sharp & Dome, a Division of Merck & Co., Inc.
Morgan, Melhuish, Monaghan & Spielvogel, Livingston, for defendants- respondents Armour Pharmaceutical Co., improperly designated "Armour Labs, a division of Armour Pharm. Co.", and Ciba-Geigy Corporation, improperly designated "Ciba Pharm Products, Inc."
Purcell, Ries & Shannon, Pluckmein, for defendant-respondent Winthrop Laboratories, a Division of Sterling Drug, improperly designated "Winthrop Chemical Co." (Eugene M. Purcell, Pluckmein, on the letter brief).
Lamb, Hutchinson, Chappell, Ryan & Hartung, Jersey City for defendant-respondent The Upjohn Co.
Braff, Litvak, Ertag, Wortmann & Harris, East Orange, for defendant-respondent Burroughs Wellcome and Co., Inc.
Kuttner & Toner, Newark, for defendants-respondents Carroll D. Smith Pharmacal Co., a Division of Smith, Miller & Patch, E. S. Miller Labs, Inc., a Division of Smith, Miller & Patch, and Smith, Miller & Patch, a Division of Cooper Laboratories, Inc., Crookes Labs, Inc., E. L. Patch Company and Sherman MD, Inc. (Roger L. Toner, Newark, of counsel).
O'Donnell & McCord, Morristown, for defendant-respondent William H. Rorer, Inc.
Haggerty & Donohue, P. C., Union, for defendants-respondents Cole Pharmacal Co., G. W. Carnick Co. and Vale Chemical Co., Inc.
Lieb, Berlin & Kaplan, P. C., Morristown, for defendants-respondent Harvey Laboratories, Inc. Draesel, Sunshine & Atkins, Oradell, for defendant-respondent Pennwalt Corp., successor to R. J. Strasenburgh, Inc., improperly designated "R. J. Strasenburgh Labs, a Division of Wallace & Tiernan, Inc.", Maltbie Laboratories, Inc., improperly designated "Maltbie Labs, a Division of Pennwalt Corp.", and Wallace & Tiernan Products, Inc.
Feehan & Feehan, Hackensack, for defendants-respondents Van Pelt and Brown, Inc., William Warner, a division of Warner-Hudnut, Inc. and S. E. Massengill Co.
Wittman, Anzalone, Bernstein & Dunn, Hackensack, for defendant-respondent S. B. Penick & Co.
Morrison & Griggs, Hackensack, for defendants-respondents Gelatin Products Co. and High Chemical Co.
Harwood, Lloyd, Kelly, Ryan, Coyle & Wulster, Hackensack, for defendant-respondent Flint-Eaton & Co., a division of Travenol Laboratories, Inc., improperly designated "Flint-Eaton and Co., a division of Baxter Labs Inc."
Pantages, Sellar, Richardson & Stuart, Newark, for defendant-respondent U. S. Standard Products Co. (Louis J. Pantages, Newark, of counsel; Charles Crow, Newark, on the brief).
Richard V. Caplan, Red Bank, for defendant-respondent Boyle & Co. Pharmaceuticals.
McDermott & McGee, Millburn, for defendant-respondent Rexall Drug Co. (John P. McGee, Millburn, on the brief).
Before Judges BISCHOFF, FRANCIS and MORTON I. GREENBERG.
The opinion of the court was delivered by
BISCHOFF, P. J. A. D.
This is a pharmaceutical products liability case wherein plaintiffs appeal from a summary judgment dismissing their complaint against approximately 44 drug manufacturing and distributing companies. The compliant charges defendants with liability based upon principles of negligence, breach of warranties and strict liability.
Plaintiffs Gail Namm and Paul Namm, are husband and wife and in their complaint they allege that prior to February 15, 1949 all of the defendants named "manufactured, compounded, tested, sold and marketed" large quantities of synthetic estrogen known as "diethylstilbestrol", "stilbestrol" and "dienestrol" (hereinafter referred to collectively as DES) in prescription drug form. The drug was promoted for use by pregnant women to prevent loss of the fetus by spontaneous abortion. Plaintiff Gail Namm was born February 15, 1949. Prior thereto her mother had ingested DES obtained by prescription from her obstetrician to prevent termination of her pregnancy by spontaneous abortion. Plaintiffs allege that Gail Namm developed adenocarcinoma of the vagina and "underwent a total abdominal hysterectomy" in August 1975, and that the adenocarcinoma Gail developed was caused by the DES ingested by her mother.
The complaint was filed August 1, 1977. Although more than 300 companies 1 have manufactured or sold DES since 1941, the complaint names only 74 companies as defendant-manufacturers; 44 were served and answered the complaint. On June 22, 1977 an order was entered fixing dates for service of the complaint and for the filing of answers. The order postponed indefinitely the assertion of crossclaims and third-party claims and provided for orderly discovery as to the identification of the pharmaceutical and the identification of the manufacturer. Discovery as to identification was obtained from plaintiffs, Gail Namm's parents, their doctor and pharmacist, hospital records and representatives of defendant drug companies. The primary source of information as to identification of both the drug and the manufacturer was obtained from Mrs. Vernick, Gail's mother. She recalled that she obtained pills (as opposed to capsules or other forms of oral medication) during her pregnancy. The original prescription came from Dr. Bogen, her obstetrician, and the medication was obtained from Elks Drug Store in Brooklyn. While she did not recall what the pill container looked like, she did recall there were several different pill sizes but none smaller than five milligrams. They were white or light in color and contrasted with the dark surface of her kitchen counter. She was unable to provide any other details concerning the appearance or physical characteristics of the pills.
The owner of the pharmacy obtained drug supplies from wholesalers, cash peddlers, manufacturers and other local drug stores. He had no recollection or records which shed any light on either the source of his supply of...
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