Payton v. Abbott Labs

Decision Date22 June 1982
Citation437 N.E.2d 171,386 Mass. 540
PartiesBrenda PAYTON et al. 1 v. ABBOTT LABS et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Marshall Simonds, Boston (David W. Rosenberg, Robert G. Bone, Kenneth A. Cohen, Joan Milstein, Mary Morrissey, Sullivan & Joseph J. Leghorn, Boston, with him), for defendants.


This case comes before the court on certification from the United States District Court for the District of Massachusetts of four principal and several subsidiary questions involving Massachusetts tort law. See S.J.C. Rule 1:03, § 1, as amended, --- Mass. --- (1981).

The plaintiffs in the civil action in which these questions are certified seek redress for injuries allegedly caused by the prescription drug diethylstilbestrol (DES). They brought suit in the Federal District Court in April, 1976. In July, 1979, a judge of the Federal District Court conditionally certified the plaintiff class under Fed.R.Civ.P. 23(c)(4)(A) to permit resolution of thirteen specific class-wide issues. Payton v. Abbott Labs, 83 F.R.D. 382, 386 (D.Mass.1979). Several of these issues are factual; the four questions here certified involve issues of Massachusetts law which the judge believed "may be determinative of various aspects of this case and as to which it appears ... that there is no controlling precedent" in the decisions of this court.

The questions are presented by the judge in the context of a motion to dismiss, based upon the plaintiffs' allegations. The judge summarized those allegations as follows:

"The plaintiffs are all females whose mothers ingested a drug called diethylstilbestrol ... while pregnant with the plaintiffs. DES was marketed by the defendants as a preventative for miscarriages, and was widely prescribed by physicians. DES is transmitted to the fetus, and has been identified as one cause of a relatively rare but extremely malignant cancer called clear-cell adenocarcinoma which attacks the reproductive organs of the female children of mothers who have ingested DES. DES has also been identified as one of the causes of more common benign changes in the female children's reproductive organs, one of which is known as adenosis. The only corrective for clear-cell adenocarcinoma is timely radical surgery or radiation; if treatment is not successful the disease is likely to be fatal.

"Many of the plaintiffs have no symptoms of any of these conditions. As a result of their mothers' ingestion of DES, these plaintiffs are statistically more likely to suffer one of several abnormalities of the reproductive organ than is the general population and are to a lesser degree more likely to contract clear-cell adenocarcinoma. [*] They are anxious and emotionally upset by these possibilities. Some of the plaintiffs, on the advice of their physicians, are submitting to periodic medical examinations of the cervix and vagina so that symptoms of adenosis, other abnormalities, or clear-cell adenocarcinoma will be detected as early as possible, thus increasing the chance of successful treatment. These examinations may be expensive and traumatic.

"Among the various theories of liability asserted by the plaintiffs is that the defendants were negligent in marketing DES as a miscarriage preventative without adequate testing and without appropriate warnings.

"DES was manufactured according to substantially the same formula by all of the defendants and was marketed by some defendants under its generic description. The products of the various defendants were interchangeable and were sold interchangeably by pharmacists, a fact which the defendants knew or should have known. Most of the plaintiffs are unable to identify the specific manufacturer of the DES ingested by their mothers. Pharmaceutical companies other than the named defendants also manufactured and marketed DES under its generic description, and may have supplied some of the DES ingested by the plaintiffs' mothers. In most cases, neither the plaintiffs nor the defendants will be able to identify whose product was ingested by which mothers. Furthermore, different defendants marketed DES at different times and under different circumstances which may bear on their negligence.

"Plaintiffs have alleged two bases for recovery against all the defendants by all the plaintiffs: (1) conspiracy or joint enterprise, and (2) 'alternative liability.' 'Alternative liability' is a term used to describe a "While the plaintiffs claim that DES was not efficacious in preventing miscarriages, the defendants claim that it was. If the evidence supports the defendants' claim the trier of fact might be warranted in concluding that a particular plaintiff probably would not have been born had it not been for her mother's ingestion of DES.

theory of recovery adopted in some jurisdictions where there is not a joint tort, that is, where the tort was committed by only one of several possible tort feasors, but there is no way to determine which [386 Mass. 544] one. [**] Different jurisdictions have developed different versions of this theory of liability with respect to the allocation of damages, the necessity of joining all possible tort-feasors as defendants, shifting the burden of proof to a defendant to establish the impossibility of that defendant's responsibility, and right of contribution among defendants and against possible tort-feasors who are not parties. As far as the [judge] can determine, the [Supreme Judicial] Court has not addressed a claim of this kind in any form. While such a theory has never been recognized, it has never been rejected by a Massachusetts court.

"The parties and the [judge] agree that in this diversity action the law of Massachusetts is the controlling law."

If the plaintiffs prevail, and the defendants' liability is established, there must be individual trials for members of the plaintiff class on the issue of damages and perhaps other issues as well.


"Does Massachusetts recognize a right of action for emotional distress and anxiety caused by the negligence of a defendant, in the absence of any evidence of physical harm, where such emotional stress and anxiety are the result of an increased statistical likelihood [that] the plaintiff will suffer serious disease in the future?" We answer, No.


We note initially that neither the issue of negligence nor that of causation is before us. The certified question assumes both that the defendants were negligent, and that their negligence caused the plaintiffs' emotional distress.

No Massachusetts case has yet concluded that a plaintiff who alleges that she was a direct victim of a defendant's negligent conduct, but who does not allege that she has suffered resulting physical harm, can recover for emotional distress. In the absence of a specific factual context, the court has declined to decide this issue. 3 This court has held that a parent who was not within the zone of physical danger created by the defendant's negligence may recover for substantial physical injuries sustained as a result of emotional distress, resulting from injuries negligently inflicted on her child. Dziokonski v. Babineau, 375 Mass. 555, 568, 380 N.E.2d 1295 (1978). Here, however, the plaintiffs are assumed to be direct victims without physical injuries, since the certified question assumes that the plaintiffs were threatened with physical harm by the defendants' negligent conduct. We must decide whether this distinction should affect the result in this case.


Both common law and policy considerations lead us to answer certified question one in the negative. There is ample support in the common law of this country for a negative answer. Jurisdictions allowing recovery for emotional distress without The task of determining whether a plaintiff has suffered purely emotional distress, however, does not fall conveniently into the traditional categories separating the responsibilities of the judge from those of the jury. A plaintiff may be genuinely, though wrongly, convinced that a defendant's negligence has caused her to suffer emotional distress. If such a plaintiff's testimony is believed, and there is no requirement of objective corroboration of the emotional distress alleged, a defendant would be held liable unjustifiably. It is in recognition of the tricks that the human mind can play upon itself, as much as of the deception that people are capable of perpetrating upon one another, that we continue to rely upon traditional indicia of harm to provide objective evidence that a plaintiff actually has suffered emotional distress.

                proof of physical harm 4 in negligence cases are [386 Mass. 546] clearly in the minority. 5  The most common justification for denying recovery for emotional distress in negligence cases absent physical harm is that that rule is necessary to prevent fraud and vexatious lawsuits.  Those seeking to apply a more liberal rule argue that a jury is capable of distinguishing real from feigned injuries and that, therefore, the matter[386 Mass. 547]  should be left to the jury.  This response has appeal because in general it is for the jury, and not for an appellate court, to determine which injuries are real and which are contrived

Although this court has allowed recovery for emotional distress absent physical harm, it has done so only where the defendant's It should be noted, in addition, that the retributive function of imposing tort liability is served by allowing recovery for emotional distress, without proof of physical harm, where a defendant's conduct was either intentional or reckless. Where a defendant was only negligent, his fault is not so great as to require him to...

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