New York County DES Litigation, In re

• Decision Date: 18 August 1994
• Citation: 615 N.Y.S.2d 882,202 A.D.2d 6
• Court: New York Supreme Court — Appellate Division
• Parties: , Prod.Liab.Rep. (CCH) P 14,012 In Re NEW YORK COUNTY DES LITIGATION, All DES Actions Venued in New York County. Pamela CARRANO, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Andrea GOLDSTEIN, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Alice HOOPER, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Leslie LaCOUNT, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Deborah SHAFFER, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Ronnie STEINBERG, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Iris CHERNOSKY, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Albert GREENE, etc., et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Susan A. HELMRICH, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Sandra KLUGE, et al., Plaintiffs-Respondents, v. ELI LILLY & COMPANY, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant. Margaret VILASI, et al., Plaintiffs-Respondents, v. ELI LILLY & COMPANY, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Page 882

615 N.Y.S.2d 882

202 A.D.2d 6, Prod.Liab.Rep. (CCH) P 14,012

In Re NEW YORK COUNTY DES LITIGATION, All DES Actions Venued

in New York County.

Pamela CARRANO, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Andrea GOLDSTEIN, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Alice HOOPER, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Leslie LaCOUNT, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Deborah SHAFFER, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Ronnie STEINBERG, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Iris CHERNOSKY, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Albert GREENE, etc., et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Susan A. HELMRICH, et al., Plaintiffs-Respondents, v. ABBOTT LABORATORIES, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Sandra KLUGE, et al., Plaintiffs-Respondents, v. ELI LILLY & COMPANY, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Margaret VILASI, et al., Plaintiffs-Respondents, v. ELI LILLY & COMPANY, et al., Defendants, and Boyle & Co. Pharmaceuticals, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Aug. 18, 1994.

As Amended on Motion for Reargument Oct. 18, 1994.

Charles M. McCaghey, New York City, of counsel (Susan J. Krembs, on the brief Ryan, Ryan, Johnson, Clear & DeLuca, New York City, and Emmet J. Gantz, Beverly Hills, CA, attorneys) for defendant-appellant.

Perry S. Reich, Staten Island, of counsel (Law Offices of Sybil Shainwald, New York City, attorneys) for plaintiffs-respondents.

Before ELLERIN, J.P., and ASCH, RUBIN, NARDELLI and WILLIAMS, JJ.

ASCH, Justice.

This case involves the question of whether defendant-appellant Boyle & Co. Pharmaceuticals (Boyle) is subject to the personal jurisdiction of the New York courts. It is a given that plaintiffs' mothers ingested DES in New York and that plaintiffs were in utero in New York when the exposure to DES took place. It is also accepted that Boyle is a closely-held California corporation which manufactured and sold DES in the states west of the Mississippi from 1949 to 1960. It has never maintained an office, held a license or been registered to do business in New York, or even placed an advertisement in New York. Further, it claims that it never directly sold DES in New York or shipped it here, and for the purposes of this appeal, we accept those claims as true.

While the traditional contacts which determine jurisdiction are not present in Boyle, under the unique circumstances presented herein, the "liberal" language of the "long-arm statute", CPLR 302(a)(3)(ii) can be employed to confer jurisdiction that is consistent with the Due Process Clause of the United States Constitution and even our own State's hesitancy in expanding New York's theoretical jurisdiction to its outermost limits (see Talbot v. Johnson Newspaper Corporation, 71 N.Y.2d 827, 829-30, 527 N.Y.S.2d 729, 522 N.E.2d 1027). We find that defendant Boyle realistically does have "certain minimum contacts with [New York] such that the maintenance of suit does not offend 'traditional notions of fair play and substantial justice' " (International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 [quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278]. We also find that the Court of Appeals would conclude that, in the area of DES product liability, and under the circumstances present here, the New York long-arm statute would provide for in personam jurisdiction (Talbot v. Johnson Newspaper Corporation, supra, 71 N.Y.2d at 829-30, 527 N.Y.S.2d 729, 522 N.E.2d 1027).

Section 302(a)(3)(ii) provides that "a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... (3) commits a tortious act without the state causing injury to person or property within the state ... if he ... (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce ...".

The plaintiffs are proceeding on a "market share" theory of liability because they are unable to link the ingestion of DES (diethylstilbestrol) by their mothers during their pregnancies to any specific manufacturer (see, Matter of DES Market Share Litigation, 79 N.Y.2d 299, 582 N.Y.S.2d 377, 591 N.E.2d 226; Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338). In Hymowitz, the Court of Appeals noted that "extant common-law doctrines, unmodified provide no relief for the DES plaintiff unable to identify the manufacturer of the drug that injured her" but concluded that these circumstances "call for recognition of a realistic avenue of relief for plaintiffs injured by DES" and that "judicial action is again required to overcome the 'inordinately difficult problems of proof' caused by contemporary products and marketing techniques [citations omitted]" (Id. at 507, 541 N.Y.S.2d 941, 539 N.E.2d 1069). Finding that the DES situation was "a singular case" and an "unusual scenario", (id. at 508, 541 N.Y.S.2d 941, 539 N.E.2d 1069), the Court said:

Consequently, for essentially practical reasons, we adopt a market share theory using a national market. We are aware that the adoption of a national market will likely result in a disproportion between the liability of individual manufacturers and the actual injuries each manufacturer caused in this State. Thus, our market share theory cannot be founded upon the belief that, over the run of cases, liability will approximate causation in this State (citation omitted). Nor does the use of a national market provide a reasonable link between liability and the risk created by a defendant to a particular plaintiff (citations omitted). Instead, we choose to apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large. Use of a national market is a fair method, we believe, of apportioning defendants' liabilities according to their total culpability in marketing DES for use during pregnancy. Under the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs' injuries among defendants.

(Id. at 511-512, 541 N.Y.S.2d 941, 539 N.E.2d 1069).

As is readily apparent and, indeed, explicitly recognized (see supra ) by the Court of Appeals, Hymowitz departs from traditional common-law principles to achieve its goal of giving relief to injured DES plaintiffs. In Matter of DES Market Share Litigation, supra, the Court later stressed that the new market share rule was ...