Smith v. Eli Lilly & Co.

• Decision Date: 03 July 1990
• Docket Number: 67747,Nos. 67732,s. 67732
• Citation: 137 Ill.2d 222,148 Ill.Dec. 22,560 N.E.2d 324
• Court: Illinois Supreme Court
• Parties: , 148 Ill.Dec. 22, 59 USLW 2051, Prod.Liab.Rep. (CCH) P 12,590 Sandra SMITH, Appellee, v. ELI LILLY & COMPANY et al., Appellants.

Page 324

560 N.E.2d 324

137 Ill.2d 222, 148 Ill.Dec. 22, 59

USLW 2051,

Prod.Liab.Rep. (CCH) P 12,590

Sandra SMITH, Appellee, v. ELI LILLY & COMPANY et al., Appellants.

Nos. 67732, 67747.

Supreme Court of Illinois.

July 3, 1990.

As Modified on Denial of Rehearing Oct. 1, 1990.

Richard C. Bartelt, of Wildman, Harrold, Allen & Dixon, Chicago, and Stephen E. Scheve and Laura D. Stith, of Shook, Hardy & Bacon, Kansas City, Mo., for appellant Eli Lilly & Co.

Hugh L. Moore, of Lord, Bissell & Brook, Chicago, for appellant Abbott Laboratories.

Perry L. Fuller, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for appellant William H. Rorer, Inc.

Chadwell & Kayser, Ltd., and Connelly, Mustes, Palmer & Schroeder (Bruce C. Howard, of counsel), Chicago, for appellant Premo Pharmaceutical Labs.

James T. Ferrini and Lisa Marco Kouba, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, for appellant C.D. Smith Pharmacal.

Burditt, Bowles & Radzius, Chtd., Chicago (Robert G. Epsteen and Richard E. Favoriti, of counsel), for appellant Boyle & Co.

Grotefeld & Associates, Chtd., Chicago (William Stewart Grotefeld, of counsel), for appellant S.E. Massengill Co.

Hayes & Power, Chicago (John D. Hayes, Joseph A. Power, Jr., and David A. Novoselsky, of counsel), for appellee.

James C. Murray, Jr., Kirk T. Hartley and Marcy K. Weaver, of Katten, Muchin & Zavis, Chicago, for amicus curiae Illinois Mfrs' Ass'n.

Cooney & Conway, Chicago (Kathy Byrne and Kevin J. Conway, of counsel), for amicus curiae Illinois Trial Lawyers Ass'n.

Justice RYAN delivered the opinion of the court:

The plaintiff in this appeal alleges that she was injured by the drug diethylstilbestrol (DES), which her mother ingested during pregnancy. She seeks relief against defendant DES manufacturers. The issue is whether, in a negligence and strict liability cause of action, Illinois should substitute for the element of causation in fact a theory of market share liability when identification of the manufacturer of the drug that injured the plaintiff is not possible. The trial court granted defendants' motion for summary judgment as to various counts of the complaint, including a negligence count, but denied the defendants' motion as to the strict products liability count and adopted the market share liability theory developed in Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132. The appellate court affirmed the trial court's holding as to the products liability count, but reversed the trial court's holding as to the negligence count, holding that the market share theory should apply to both the plaintiff's negligence and strict liability counts. (173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333.) However, it rejected the Sindell rule which the trial court had adopted and instead adopted the market share liability theory as it was recognized in Martin v. Abbott Laboratories (1984), 102 Wash.2d 581, 689 P.2d 368. The appellate court affirmed the trial court's entry of summary judgment for defendants on the other counts. We granted defendants' petition for leave to appeal (107 Ill.2d R. 315).

I. FACTS

The plaintiff, Sandra Smith, was born on July 13, 1953, in Chicago, Illinois. In 1978, she was admitted to the Ravenswood Hospital in Chicago, where she underwent a dilation and curettage, cervical biopsy, and an excisional biopsy of the vaginal wall. The biopsy revealed that plaintiff had a form of cancer known as clear cell adenocarcinoma of the vagina. She was then transferred to the University of Illinois Hospital, where she underwent extensive surgery. Plaintiff alleges that the DES prescribed for her mother while plaintiff was in utero caused the cancer.

Elizabeth Smith, plaintiff's mother, had a history of difficulty with pregnancy before she gave birth to Sandra. Therefore, in early 1953, when she learned of her pregnancy, she went to the Field Clinic in Chicago and consulted with Dr. Jack E. Davis regarding her condition. The doctor gave Mrs. Smith a prescription to be filled at the clinic pharmacy for "Tab 98." The practice at the Field Clinic was to store and dispense drugs by number, rather than by name. The record establishes that Tab 98 designated 25 milligram tablets of DES. Mrs. Smith continued to take DES tablets daily up until the time she gave birth to Sandra. Dr. Davis attended Mrs. Smith throughout her pregnancy but at the time this suit was filed he was deceased.

The records recovered from the Field Clinic identify numerous companies which supplied drugs to the clinic, some of which were also suppliers of DES, but these are insufficient to match the company with the drug dispensed to the plaintiff's mother. The person responsible for purchasing the pharmaceutical products stocked at the clinic's pharmacy had also died by the time this suit was filed. Therefore, although the plaintiff knows the color, size and dosage of the drug her mother took, she is unable to identify the specific manufacturer of the product.

In 1980, plaintiff filed her initial complaint naming as defendants 138 drug companies. According to an affidavit of John Kraas, an employee of defendant Eli Lilly & Company, there were 81 companies which marketed DES in 25 milligram tablets between 1952 and 1953. This information was derived from medical and pharmaceutical industry references. Of the 81 potential manufacturers of the DES taken by plaintiff's mother, 63 were not named in the complaint. Of the 138 companies named, 70 filed appearances. Motions were filed by a number of named defendants attacking jurisdiction, asserting changes in corporate structure or ownership that would bar successor liability, or charging error of identity. Twenty companies remained in the suit after these motions were resolved.

In November 1982, plaintiff filed a second amended complaint consisting of 11 counts. Counts I through VI sound in negligence, strict liability, breach of express warranty, fraud, breach of implied warranty, and violation of the Federal Food, Drug, and Cosmetic Act. Counts VII and VIII sound in conspiracy and pray for assessment of damages on various bases of concerted action, joint and several liability and joint enterprise liability. Counts IX and X allege theories of negligence and strict liability, respectively, and invoke market share as the means for apportioning damages. The thrust of these causes of action is that the drug companies failed to properly test DES and to adequately warn of its dangers. The last count is a tort action against the Field Clinic. There are apparently no motions pending on this count.

Following completion of discovery, 14 defendants filed a joint motion for summary judgment. Some of these defendants and a number of others filed individual motions for summary judgment on the ground that the plaintiff's mother did not use their products. Twelve defendants were able to exculpate themselves on the basis that they could not have manufactured the DES that plaintiff's mother took because their product either was not of the same dosage, color or type, or was not sold to the Field Clinic. The remaining eight defendant manufacturers included Abbott Laboratories, Eli Lilly & Company, Premo Pharmaceutical Laboratories, Inc., Carroll Dunham Smith Pharmacal Company, William H Rorer, Inc., S.E. Massengill Company, Harvey Laboratories, Inc., and Boyle & Company.

The trial court granted the joint motion for summary judgment on counts I through IX of the second amended complaint. However, the court denied the motion with respect to count X, the strict liability action, and adopted market share liability, based on the theory that the California Supreme Court articulated in Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132. The defendants appealed the denial of their motion for summary judgment as to count X and plaintiff cross-appealed the trial court's grant of summary judgment as to counts I through IX. As noted above, the appellate court likewise adopted a theory of market share liability, although different from that applied by the trial court, and extended its application to the negligence count. The appellate court affirmed the dismissals of the other counts. The defendants filed a petition for leave to appeal to this court based on the denial of their motion for summary judgment on counts IX and X, and we granted leave to appeal (107 Ill.2d R. 315). The plaintiff has not cross-appealed from the dismissal of the other counts.

II. HISTORY OF DES

The history of the development of DES and its marketing in this country has been repeatedly chronicled, especially in cases which address the issues of conspiracy and concert of action. (See Ryan v. Eli Lilly & Co. (D.S.C.1981), 514 F.Supp. 1004; Martin, 102 Wash.2d 581, 689 P.2d 368; Sindell, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132; Lyons v. Premo Pharmaceutical Labs, Inc. (App.Div.1979), 170 N.J.Super. 183, 406 A.2d 185; Note, The DES Causation Conundrum: A Functional Analysis, 32 N.Y.L.Sch.L.Rev. 939 (1987); Comment, Market Share Liability: A New Method of Recovery for D.E.S. Litigants, 30 Cath.U.L.Rev. 551 (1981).) Nevertheless, before getting into the market share issue, we believe that a brief account of the drug's history will be helpful.

Diethylstilbestrol is a synthetic substance which duplicates the activity of estrogen, a female sex hormone crucial to sexual development and fertility. Professor E.C. Dodds and his associates first synthesized the drug in England in 1937. The drug was not patented by Professor Dodds, but was left available for general production by pharmaceutical companies. In 1940, a number of pharmaceutical companies in the United States sought the approval of the Food and Drug Administration (FDA) to market DES in up to 5 milligram doses to treat vaginitis, engorgement of the breasts, excessive menstrual bleeding and symptoms of menopause. Standard procedure at...