Smith v. Eli Lilly & Co., Nos. 85-0633

CourtUnited States Appellate Court of Illinois
Writing for the CourtBUCKLEY
Citation527 N.E.2d 333,173 Ill.App.3d 1,122 Ill.Dec. 835
Parties, 122 Ill.Dec. 835, Prod.Liab.Rep. (CCH) P 11,918 Sandra SMITH, Plaintiff-Appellee, Cross-Appellant, v. ELI LILLY & COMPANY, Abbott Laboratories, Premo Pharmaceutical Laboratories, Inc., Carroll Dunham Smith Pharmacal Company, William H. Rorer, Inc., S.E. Massengill Company, Harvey Laboratories, Inc., Boyle & Company, Ayerst Laboratories, Inc., and American Home Products Corporation, Defendants- Appellants, Cross-Appellees (Penick Corporation, CPC International, Inc., Kremers-Urban Company, Inc., Merck & Company, Inc., Rexall Drug Company, Carnrick Laboratories, Inc., E.R. Squibb & Sons, Inc., Sterling Drug, Inc., Breon Laboratories, Inc., Armour Pharmaceutical Company, and The Upjohn Company, Defendants-Cross-Appellees).
Docket NumberNos. 85-0633,85-0880
Decision Date25 May 1988

Page 333

527 N.E.2d 333
173 Ill.App.3d 1, 122 Ill.Dec. 835,
Prod.Liab.Rep. (CCH) P 11,918
Sandra SMITH, Plaintiff-Appellee, Cross-Appellant,
v.
ELI LILLY & COMPANY, Abbott Laboratories, Premo
Pharmaceutical Laboratories, Inc., Carroll Dunham Smith
Pharmacal Company, William H. Rorer, Inc., S.E. Massengill
Company, Harvey Laboratories, Inc., Boyle & Company, Ayerst
Laboratories, Inc., and American Home Products Corporation,
Defendants- Appellants, Cross-Appellees (Penick Corporation,
CPC International, Inc., Kremers-Urban Company, Inc., Merck
& Company, Inc., Rexall Drug Company, Carnrick Laboratories,
Inc., E.R. Squibb & Sons, Inc., Sterling Drug, Inc., Breon
Laboratories, Inc., Armour Pharmaceutical Company, and The
Upjohn Company, Defendants-Cross-Appellees).
Nos. 85-0633, 85-0880.
Appellate Court of Illinois,
First District, First Division.
May 25, 1988.
As Corrected June 6, 1988.
Rehearing Denied Aug. 22, 1988.

Page 335

[173 Ill.App.3d 5] [122 Ill.Dec. 837] Wildman, Harrold, Allen & Dixon, Chicago (Richard C. Bartelt, of counsel) and Shook, Hardy & Bacon, Kansas City, Mo., for defendant-appellant, cross-appellee Eli Lilly & Co.

Lord, Bissell & Brook, Chicago (Hugh L. Moore, Judith A. Royal, of counsel), for defendant-appellant, cross-appellee Abbott Laboratories.

Connelly, Ruberry & Mustes, Chicago (Michael P. Connelly, of counsel), for defendant-appellant, cross-appellee Premo Pharmaceutical Laboratories, Inc.

Coffield, Ungaretti, Harris & Slavin, Chicago (J. Timothy Eaton, Daniel P. Albers, of counsel), for defendant-appellant, cross-appellee Carroll Dunham Smith Pharmacal Co., and for defendant-cross-appellee Kremers-Urban Co., Inc.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, J. Timothy Eaton, Timothy M. Kelly, of counsel), for defendant-appellant, cross-appellee William H. Rorer, Inc.

William S. Grotefeld & Associates, P.C., Chicago (Richard A. Vierling, of counsel), for defendant-appellant, cross-appellee S.E. Massengill Co.

Raymond J. Langer, Elmhurst, for defendant-appellant, cross-appellee Harvey Laboratories, Inc.

Burditt, Bowles & Radzius, Ltd., Chicago (Robert G. Epsteen, Richard E. Favoriti, William F. Haley, of counsel), for defendant-appellant, cross-appellee Boyle & Co., and for defendant-cross-appellee E.R. Squibb & Sons, Inc.

John Cadwalader Menk & Associates, Chicago (John Cadwalader Menk, Garry H.

Page 336

[122 Ill.Dec. 838] Walters, of counsel), for defendants-appellants, cross-appellees Ayerst Laboratories, Inc. and American Home Products Corp.

[173 Ill.App.3d 6] Hayes & Power, Chicago (John D. Hayes, William K. Hedrick, David A. Novoselsky, of counsel), for plaintiff-appellee, cross-appellant Sandra Smith.

Mayer, Brown & Platt, Chicago (James W. Gladden, Jr., Judith M. Janssen, of counsel), for defendants-cross-appellees Penick Corp. and CPC Intern., Inc.

Johnson, Cusack & Bell, Ltd., Chicago (William V. Johnson, Robert L. Nora, Thomas H. Fegan, of counsel), for defendant-cross-appellee Merck & Co., Inc.

Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago (James T. Ferrini, James O. Nolan, Mayer Goldberg, Daniel J. O'Connell, Lisa Marco Kouba, of counsel), for defendant-cross-appellee Rexall Drug Co.

Cassiday, Schade & Gloor, Chicago (Michael J. Gallagher, Michael J. Morrissey, Annette J. Regos, of counsel), for defendant-cross-appellee Carnick Laboratories, Inc.

Jerome H. Torshen, Ltd. and Garretson & Santora, Chicago (Jerome H. Torshen, Abigail K. Spreyer, of counsel), for defendant-cross-appellee Sterling Drug, Inc. and Breon Laboratories Inc.

Sidley & Austin, Chicago (William P. Richmond, John Dames, Barbara M. DeCoster, Alan B. Silverberg, of counsel), for defendants-cross-appellees Armour Pharmaceutical Co. and The Upjohn Co.

Justice BUCKLEY delivered the opinion of the court:

The present consolidated appeal arises out of a pharmaceutical product liability action brought by plaintiff against various drug companies seeking recovery for injuries allegedly caused by her mother's ingestion of diethylstilbestrol (DES). The trial court granted the drug companies' joint motion for summary judgment as to counts I through IX of plaintiff's second amended complaint, but denied the motion as to count X alleging a strict liability cause of action based upon the market share theory. Other companies were granted summary judgment on all counts of the complaint as they were determined not to be part of the relevant DES market. For the reasons set forth below, we affirm in part and reverse in part, and remand the cause for further proceedings.

In 1952, Elizabeth Smith became pregnant with Sandra Smith, the plaintiff in this case. Having had a history of difficulty with pregnancy, Mrs. Smith consulted with her physician, Dr. Jack E. Davis of the Field Clinic in Chicago, Illinois. In March 1953, he prescribed DES which Mrs. Smith took throughout the remainder of her pregnancy. [173 Ill.App.3d 7] At her deposition, Mrs. Smith described the medication as a "white tablet," "smaller than an aspirin" to be taken three times a day. On July 13, 1953, plaintiff was delivered by cesarean section.

Twenty-five years later, in September 1978, after undergoing a dilation and curettage, cervical biopsy, and excisional biopsy of the vaginal wall, plaintiff was diagnosed as having a form of cancer medically referred to as clear cell adenocarcinoma of the vagina, and shortly thereafter, underwent radical surgery. Plaintiff allegedly developed this cancer as a result of her in utero exposure to DES.

Mrs. Smith obtained her DES prescription from the Field Clinic pharmacy. While the pharmacy's records indicate that she was administered "Tab 98," 25 milligram tablets of DES, the identity of the specific manufacturer of the product was not disclosed. Moreover, Dr. Davis and the purchaser of the products stocked by the pharmacy are deceased.

In August or September 1980, plaintiff filed her initial complaint against more than 100 drug companies who allegedly distributed DES to the Field Clinic, seventy of which filed appearances. 1 In November 1982, plaintiff filed a second-amended complaint

Page 337

[122 Ill.Dec. 839] consisting of eleven counts. 2 Counts I through VI sound in, respectively, negligence, strict liability, breach of express warranty, fraud, breach of implied warranty, violation of the Federal Food, Drug and Cosmetic Act, and VII and VIII in conspiracy. These counts 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 of determining damages. The thrust of plaintiff's causes of action is the drug companies' alleged failure to properly test DES and to adequately warn of its dangers.

The following drug companies jointly moved for summary judgment on counts I through X of plaintiff's second-amended complaint: Abbott Laboratories, Eli Lilly & Company, Premo Pharmaceutical Laboratories, Inc., Carroll Dunham Smith Pharmacal Company, William H. Rorer, Inc., S.E. Massengill Company, Boyle and Company (the preceding seven companies hereinafter will be referred to as "defendants"), Penick Corporation, CPC International, Inc., Kremers-Urban Company, Merck & Company, Inc., American Home Products [173 Ill.App.3d 8] Corporation, Ayerst Laboratories, Home Products Corporation, Ayerst Laboratories, Inc., Harvey Laboratories, Inc., and Rexall Drug Company. Thereafter, the latter eight drug companies as well as Carnrick Laboratories, Inc., E.R. Squibb & Sons, Inc., Sterling Drug, Inc., Breon Laboratories, Inc., Armour Pharmaceutical, and The Upjohn Company ("cross-appellees") filed individual motions for summary judgment on the ground that they had not manufactured DES of the kind and size ingested by plaintiff's mother. 3

On February 21, 1985, the trial court granted the joint motion for summary judgment on the first nine counts of plaintiff's second-amended complaint, but denied the motion with respect to count X, thereby adopting in its memorandum of opinion a strict liability cause of action based on the market share theory articulated by the California Supreme Court in Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 607 P.2d 924, cert. denied, (1980), 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140. In separate orders filed the same day, the trial court also granted the individual motions for summary judgment as to all counts of the complaint.

Pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308), this court granted defendants' application for leave to appeal the denial of their motion for summary judgment as to count X. Plaintiff cross-appealed, challenging the grant of summary judgment as to counts I through IX and the other orders entered against her on February 21. The two appeals have been consolidated for review.

Before addressing the issues they present, we note that " '[s]ummary judgment is properly granted only where there is no genuine issue of material fact [citations], and this is to be determined from the pleadings, depositions, affidavits, and admissions on file in each case [citations].' " (People ex rel. First National Bank of Chicago v. City of North Chicago (1987), 158 Ill.App.3d 85, 103, 109 Ill.Dec. 709, 720-21, 510 N.E.2d 577, 588-89, quoting Komater v. Kenton Court Associates (1986), 151 Ill.App.3d 632, 636, 104 Ill.Dec. 635, 637-38, 502 N.E.2d 1295, 1297-98; see also, Ill.Rev.Stat.1985, ch. 110, par. 2-1005(c).) A party seeking summary judgment must affirmatively establish that his right thereto is clear, without doubt, and determinable solely as a matter of law. (Schwaner v. Belvidere Medical[173 Ill.App.3d 9] Building Partnership (1987), 155 Ill.App.3d 976, 108

Page 338

[122 Ill.Dec. 840] Ill.Dec. 361, 508 N.E.2d 522.) In determining whether genuine issues of fact exist, the evidence must be construed strictly...

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19 practice notes
  • Shackil v. Lederle Laboratories, a Div. of American Cyanamid Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1989
    ...as measured by various factors), cert. den., 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984); see also Smith v. Eli Lilly & Co., 173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333 (1988) (adopting theory of liability enunciated in Martin, supra, in context of DES). But see Mulcahy v. Eli ......
  • Stevens v. Lou's Lemon Tree, Ltd., Nos. 1-88-0963
    • United States
    • United States Appellate Court of Illinois
    • August 15, 1989
    ...as contributory negligence, may be altered or totally replaced by the court which created them; and Smith v. Eli Lilly & Co. (1988), 173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333, appeal allowed (1988), 123 Ill.2d 567, 128 Ill.Dec. 900, 535 N.E.2d 411, which marked a change in court-ma......
  • McClure v. Owens Corning Fiberglas Corp., No. 86118
    • United States
    • Supreme Court of Illinois
    • October 21, 1999
    ...Prior to the appellate court decision in this case, no Illinois court had addressed this question. But see Smith v. Eli Lilly & Co., 173 Ill.App.3d 1, 28-30, 122 Ill.Dec. 835, 527 N.E.2d 333 (1988) (holding that parallel activity by drug manufacturers in producing and marketing DES does not......
  • In re Methyl Tertiary Butyl Ether Products Liab., No. MDL 1358(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 20, 2005
    ...causative link must be established between a specific defendant's tortious acts and the plaintiff's injury"); Smith v. Eli Lilly & Co., 173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333, 351 (1988) (rejecting alternative and enterprise liability), rev'd on other grounds, 137 Ill.2d 222, 14......
  • Request a trial to view additional results
19 cases
  • Shackil v. Lederle Laboratories, a Div. of American Cyanamid Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1989
    ...as measured by various factors), cert. den., 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984); see also Smith v. Eli Lilly & Co., 173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333 (1988) (adopting theory of liability enunciated in Martin, supra, in context of DES). But see Mulcahy v. Eli ......
  • Stevens v. Lou's Lemon Tree, Ltd., Nos. 1-88-0963
    • United States
    • United States Appellate Court of Illinois
    • August 15, 1989
    ...as contributory negligence, may be altered or totally replaced by the court which created them; and Smith v. Eli Lilly & Co. (1988), 173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333, appeal allowed (1988), 123 Ill.2d 567, 128 Ill.Dec. 900, 535 N.E.2d 411, which marked a change in court-ma......
  • McClure v. Owens Corning Fiberglas Corp., No. 86118
    • United States
    • Supreme Court of Illinois
    • October 21, 1999
    ...Prior to the appellate court decision in this case, no Illinois court had addressed this question. But see Smith v. Eli Lilly & Co., 173 Ill.App.3d 1, 28-30, 122 Ill.Dec. 835, 527 N.E.2d 333 (1988) (holding that parallel activity by drug manufacturers in producing and marketing DES does not......
  • In re Methyl Tertiary Butyl Ether Products Liab., No. MDL 1358(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 20, 2005
    ...causative link must be established between a specific defendant's tortious acts and the plaintiff's injury"); Smith v. Eli Lilly & Co., 173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333, 351 (1988) (rejecting alternative and enterprise liability), rev'd on other grounds, 137 Ill.2d 222, 14......
  • Request a trial to view additional results

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