Ryan v. Eli Lilly & Co.

Decision Date14 May 1981
Docket NumberCiv. A. No. 77-246.
Citation514 F. Supp. 1004
CourtU.S. District Court — District of South Carolina
PartiesNancy RYAN, Plaintiff, v. ELI LILLY & COMPANY, Rexall Drug Company, E. R. Squibb and Sons, Inc., The Upjohn Company, Abbott Laboratories and McNeil Laboratories, Inc., Defendants.

Thomas Bleakley, Charfoos & Charfoos, Detroit, Mich., Terry E. Richardson, Jr. and Ronald L. Motley, Barnwell, S. C., for plaintiff.

H. Simmons Tate, Jr., Boyd, Knowlton, Tate & Finlay, Columbia, S. C., for Upjohn Co.

Thomas C. Mazza, New York City, William L. Pope, Columbia, S. C., for Eli Lilly & Co.

E. W. Laney, III, Turner, Padget, Graham & Laney, Columbia, S. C., for Abbott Laboratories.

Glenn Bowers, Columbia, S. C., for Rexall Drug Co.

Edward W. Mullins, Jr., Columbia, S. C., for E. R. Squibb & Sons, Inc.

Douglas McKay, Jr., Columbia, S. C., for McNeil Laboratories.

ORDER

CHAPMAN, District Judge.

This matter is before the Court upon the defendants' joint motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The rule provides that summary judgment shall be rendered when the papers offered in support and in opposition thereto "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56(c). A motion for summary judgment based on sworn affidavits and deposition testimony "pierces" the allegations of the pleadings. In the face of a properly supported motion, the opposing party must either come forward with competent evidence showing the existence of a triable issue of fact, or suffer the entry of judgment against him. F.R. Civ.P. 56(e); White v. Boyle, 538 F.2d 1077, 1079 (4th Cir. 1976).

This is a pharmaceutical product liability action. The plaintiff, Nancy Ryan, alleges she has developed a pre-cancerous condition as a result of her prenatal exposure to diethyestilbestro (hereinafter "DES"), a synthetic estrogen taken by her mother during 1952 and 1953. This drug was promoted in the late 1940's and early 1950's for use by pregnant women to prevent loss of the fetus by spontaneous abortion. Nancy Ryan was born May 1, 1953. Prior to that time her mother had ingested DES obtained by prescription from her doctor to prevent possible miscarriage. The complaint was filed on February 8, 1977.1 Although 118 companies were manufacturing and marketing DES in the dosage taken by plaintiff's mother in 1952 and in 1953, the complaint named only eight companies as defendants. Plaintiff alleges that the DES ingested by her mother was manufactured by Eli Lilly & Company, or by E. R. Squibb and Sons. In addition to Lilly and Squibb, the plaintiff joined Rexall Drug Company, Upjohn Company, Blue Line Chemical Company,2 Abbott Laboratories, and McNeil Laboratories as party defendants, alleging a conspiracy in their production of synthetic estrogens. The plaintiff seeks legal as well as equitable relief, and claims numerous causes of action: negligence, breach of warranty and implied warranty, strict liability, civil conspiracy, fraud, and violation of the Federal Drug and Cosmetic Act of 1938.

The major weakness in plaintiff's case, and one issue upon which defendants' motion is based, is her inability to identify the manufacturer of the DES tablets taken by her mother nearly 28 years ago. Three and a half years of discovery have revealed nothing that would indicate which, if any, of the defendants is the culpable party.

It is elementary that in any action claiming injury from a product, the plaintiff must show causal connection between the defendant manufacturer and that product. The defendant manufacturer must be identified with the specific instrumentality that allegedly caused the injury, and this is the law of both North and South Carolina. Gantt v. Columbia Coca-Cola Bottling Co., 193 S.C. 51, 7 S.E.2d 641 (1940); Elledge v. Pepsi Cola Bottling Co., 252 N.C. 337, 113 S.E.2d 435 (1960).

It goes without saying that if a drug manufacturer ... is to be held liable for harm caused by a product, it is necessary to show that the drug or medicine was one with which the defendant is identified in the respect asserted — that is, it must be shown that the defendant actually manufactured, compounded, or sold the drug or medicine in question. Annot., "Liability of Manufacturer or Seller for Injury Caused by Drug or Medicine Sold," 79 A.L.R.2d § 19 at 338 (1961). See also Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 840 (1966).

Proof connecting the defendant with the instrumentality of the alleged defect is necessary regardless of the theory upon which plaintiff relies. See, e. g., Paul v. Hardware Mutual Ins. Co., 254 So.2d 690 (La.Ct. App.1971); Nigro v. Coca-Cola Bottling, Inc., 49 Wash.2d 625, 305 P.2d 426 (1957).

The plaintiff cannot show who manufactured the DES ingested by her mother, but contends it was one of two defendants, Lilly or Squibb. Discovery as to identification was obtained from the plaintiff, her parents, their doctor, a pharmacist, representatives of defendant drug companies, and others. These efforts have not, however, been successful in uncovering any evidence connecting any of these defendants with the drug taken by Mrs. Ryan.

William Ryan, plaintiff's father, testified that the prescription was filled at a certain Eckerd's Drug Store in Charlotte, North Carolina. The primary source of identification of the drug, and its manufacture by Lilly or Squibb, is a statement alleged to have been made by an Eckerd's Drug Store pharmacist, which statement has been denied by the pharmacist. Plaintiff's mother claims that she was told by this pharmacist that the DES bought by Eckerd's in 1952 was supplied by either Lilly or Squibb, or both. This statement is not only denied by the man who supposedly made it, but it is hearsay because it is offered to prove that Lilly or Squibb was the manufacturer. Furthermore, the pharmacist alleged to have made the statement did not even work for Eckerd's until 1956; Eckerd's has retained no prescription records from this 1952-53 period.

Plaintiff, of course, is unable to identify the particular manufacturer of the DES taken by her mother before she was born. Nor can Margaret C. Ryan, plaintiff's mother, identify the manufacturer. Mrs. Ryan remembers only that the drug came from Eckerd's; she did not know what it was when it was prescribed, she remembers none of the markings on the bottle, nor can she remember the size or the shape of the pill. She remembers only that she thinks the pill was red or white. (See Margaret Ryan's dep. at 98-100; 105, 112, 118). Nor can Mr. Ryan remember the size, shape, color or manufacturer of the DES taken by his wife. (See William Ryan dep. at 33-36; 40.). Neither the attending physician nor his records specify the manufacturer of the DES he prescribed. The drug store records were destroyed years ago, and there is no one now employed by Eckerd's Drug Company who can state which manufacturer's product would have been used to fill a prescription for DES in 1952 or 1953. (Aff. of Robert Smathers).

The defendants are merely seven of the one hundred eighteen companies manufacturing or distributing DES or its cogeners in 1952 and 1953. The plaintiff has offered nothing to show that one of these seven, and not one of the other one hundred eleven, manufacturers produced the drug in question. While the culpable manufacturer may be before the Court as a defendant, it is just as likely that it is not. The plaintiff is therefore unable to meet the threshold burden of maintaining this action — i. e., identifying the manufacturer of the drug taken and thereby establishing causation in fact. Prosser, Handbook on the Law of Torts, § 41 at 236 (1971).

The applicable principle is summarized in Annot., "Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Products Alleged to Have Caused Injury", 51 A.L.R.3d 1344, 1349 (1973):

Regardless of the theory which liability is predicated upon ... it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold or was in some way responsible for the product, and this rule is supported in all of the cases examined in this annotation. (Footnotes omitted).

This fatal flaw in plaintiff's case is nothing new in DES litigation. A number of courts have dismissed actions in which a plaintiff was unable to connect her injuries to a particular manufacturer. In Gray v. U. S. and Eli Lilly & Company, 445 F.Supp. 337 (S.D.Tex.1978), a case remarkably similar to the one here, the Court summarily granted the defendant drug manufacturer's motion for summary judgment. After extensive discovery, the plaintiff still could not identify the defendant Lilly as the particular manufacturer of the drug which caused her injury. The Court found that summary judgment was appropriate for the moving defendant because it would be "only speculation and conjecture" that might link the defendant to the injury.

In a very recent decision, a New Jersey Appellate Court affirmed a lower court's granting of summary judgment on the same grounds. Namm v. Eli Lilly & Company, Doc. No. A-89-78 (Super.Ct.App.Div., N.J., filed 3/16/81). The Court affirmed summary judgment finding that it was "a fundamental principle of products liability law" that a plaintiff must prove that the defendant manufacturer actually made the product which caused the injury. Id. at 8. See also, Lyons v. Premo Pharmaceutical Labs, Inc., 170 N.J.Super. 183, 406 A.2d 185 (App.Div.1979), cert. den. 82 N.J. 267, 412 A.2d 774 (1979).

The rule has been aptly stated by Dean Prosser:

Plaintiff still has the burden of establishing that the particular defendant has sold a product which he should not have sold, and that it has caused his injury. This
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