Zafft v. Eli Lilly & Co.

Citation676 S.W.2d 241
Decision Date11 September 1984
Docket NumberNo. 65685,65685
PartiesSusan ZAFFT, Plaintiff-Appellant, v. ELI LILLY & CO., et al., Defendants-Respondents, and Janice KEUNE and David Keune, Plaintiffs-Appellants, v. ELI LILLY & CO., et al., Defendants-Respondents.
CourtUnited States State Supreme Court of Missouri

Stephen H. Ringkamp, Mary E. Coffey, St. Louis, for plaintiffs-appellants.

Steven P. Sanders, St. Louis, Lane D. Bauer, Harvey L. Kaplan, Laura D. Stith, Andrew See, Kansas City, Richard B. Scherrer, St. Louis, for defendants-respondents.


This pharmaceutical product liability action arises from the use of diethylstilbestrol (DES). The trial court determined that under Missouri law the admitted inability of plaintiffs to identify which, if any, of the defendants made the product that allegedly caused their injuries was fatal to their claims and granted summary judgment for defendant drug manufacturers. The judge filed a memorandum opinion analyzing DES litigation theories to date and suggesting a theory of his own. The Court of Appeals, Eastern District, agreed with the summary judgment and, citing the trial judge's memorandum, transferred the case to this Court as one of general interest and importance calling for a policy decision and prompting reexamination of existing law. The issue, one of first impression in this state, is whether plaintiffs may recover for injuries allegedly caused by in utero exposure to DES absent proof which identifies the particular manufacturer of the DES taken by their mothers. Affirmed.

DES is a synthetic estrogenic hormone which, along with similar chemical derivatives of stilbene, was first manufactured as a miscarriage preventative in 1947. Comment, Overcoming the Identification Burden in DES Litigation: The Market Share Liability Theory, 65 Marq.L.Rev. 609 (1982). DES duplicates the activity of estrogen, a female sex hormone linked to problem pregnancies in the 1930's. As opposed to the natural estrogen formerly used in the treatment of problem pregnancies, DES was inexpensive and easy to administer. Ferrigno v. Eli Lilly & Co., 175 N.J.Super. 551, 420 A.2d 1305 (1980). From the time the United States Food and Drug Administration approved the drug to 1971, more than 200 drug companies participated in the market. Ryan v. Eli Lilly & Co., 514 F.Supp. 1004 (D.C.S.C.1981). DES continues in use today for non-pregnancy related disorders. Lyons v. Premo Pharmaceutical Laboratories, Inc., 170 N.J.Super. 183, 406 A.2d 185 (App.Div.1979), certif. denied, 82 N.J. 267, 412 A.2d 774 (1979). In 1971, researchers reported a statistical link between fetal exposure to DES during pregnancy and the subsequent development of cancer of the reproductive organs in the female offspring. Late that year, the FDA halted use of the drug to prevent miscarriage. Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984).

The instant action is one of a number of similar lawsuits filed across the country. Annot., 22 A.L.R. 4th 183 (1983); Note, Market Share Liability: An Answer to the DES Causation Problem, 94 Harv.L.Rev. 668 (1981). Plaintiffs here filed two separate actions for actual and punitive damages against thirteen manufacturers and distributors of DES for use in the prevention of miscarriage. Plaintiffs allege that these defendants represent all or substantially all of the known manufacturers, sellers, or distributors of stilbene derivatives in Missouri at the relevant time. Plaintiffs further allege that their mothers, while pregnant with plaintiffs, ingested DES manufactured, sold or distributed by one of the named defendants. Plaintiffs claim that the cancerous or pre-cancerous conditions from which they suffer are a direct result of their exposure in utero to DES. Plaintiffs charge that defendants represented the drug as safe while they knew or should have known of its potential carcinogenic effects, and engaged in common marketing practices of generic distribution of DES without adequate warning or testing.

Most important to review of this litigation, is plaintiffs' inability to identify which of the defendants manufactured, sold or distributed the particular products ingested by their mothers. DES was marketed generically by as many as 300 drug companies. The problems linked to its use surface many years following exposure, and neither memories nor records provide assistance in matching a specific dosage with an individual manufacturer. Collins, supra. In their appeal of the summary judgments for defendants, appellants contend, however, that "justice requires" that Missouri law recognize some form of "enterprise" liability against DES manufacturers despite the inability of a plaintiff to identify the manufacturer of the particular drug which caused the individual injury.

Respondents raise various procedural objections to review, asserting that appellants failed to state wherein and why the ruling of the trial court is erroneous. R. 84.04(d). The purpose of the rule is to ensure that opposing counsel and the court receive notice of the issues raised. Thummel v. King, 570 S.W.2d 679, 690 (Mo. banc 1978). The identification problem and element of causation emerged early in these proceedings as the critical issues and appellants clearly reiterate their claims on appeal. By contrast, in respondents' citations, the appellate courts declined to consider certain of the appellants' points because they wholly failed to identify the action of the trial court challenged on appeal. See, e.g., State ex rel. Mayfield v. Joplin, 485 S.W.2d 473, 476 (Mo.App.1972).

The affidavits and accompanying materials filed by respondents in support of their motions, not denied by appellants, stand admitted. Cherry v. Hayti Heights, 563 S.W.2d 72 (Mo. banc 1978). An order of summary judgment will not be set aside on review if supportable on any theory. Kirkwood v. Sunset Hills, 589 S.W.2d 31 (Mo.App.1979). Summary judgment is appropriate in the first instance only when no theory within the scope of the pleadings, depositions, admissions and affidavits filed would permit recovery and the moving party is entitled to judgment as a matter of law. This Court reviews the record on summary judgment in the light most favorable to appellants. Scott v. Thornton, 484 S.W.2d 312 (Mo.1972).

Appellants sought recovery on theories of breach of implied warranty; negligence per se in failing to comply with the federal drug laws; common law negligence in failing to test, or inadequately testing the product, and in failing to warn of its potential harm; and strict liability in tort, all of which are recognized in Missouri. In addition, the trial court analyzed four theories recognized in DES cases in other jurisdictions but not yet considered by the courts of this state. All were denied by the entry of summary judgment.

Actionable negligence requires a causal connection between the conduct of the defendant and the resulting injury to the plaintiff. Warner v. St. Louis and M.R.R. Co., 178 Mo. 125, 77 S.W. 67 (1903); Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824 (1940). Appellants do not challenge this rule of Missouri tort law. The theory of strict tort liability holds "one who sells" a defective product unreasonably dangerous to the user liable for resulting injury. Restatement (Second) of Torts § 402 A (1965), adopted in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969). Missouri courts no longer limit application of the theory to sellers alone, Gabbard v. Stephenson's Orchard, Inc., 565 S.W.2d 753 (Mo.App.1978), yet to recover under strict liability, as with any other tort theory, plaintiff must establish some causal relationship between the defendant and the injury-producing agent. Because appellants are unable to do so, they have, as the trial and appellate courts observed, "pleaded themselves out of court."

The four theories considered by the trial court, recognized in other jurisdictions and presented by appellants for consideration either relax or dispense with the element of causation.

One, alternative liability, applies when two or more defendants act tortiously toward plaintiff who, through no fault of his own, cannot identify which one of the joined defendants caused the injury. The burden of proof shifts to each defendant to prove his innocence. Restatement (Second) of Torts § 433 B(3) (1965); Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). This theory, best illustrated by Summers, supra, has not achieved full acceptance in Missouri. Schoening v. Claus, 363 Mo. 119, 249 S.W.2d 361 (1952). In Summers, two hunters negligently fired in the direction of the plaintiff who was unable to determine which of the two shots hit and injured him. The jurisdiction first allowing recovery under alternative liability declined to apply it to a DES case. Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132 (1980), cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980). Notwithstanding appellants' allegations, the uncontroverted materials filed by defendants indicate that 151 companies, some based in St. Louis, manufactured DES during the time in question. Thus, unlike the typical situation warranting application of alternative liability, all possible tortfeasors are not before the court and the actual wrongdoers may escape liability. "In such a context, the possibility that any of the [named] defendants supplied the DES to plaintiff's mother is so remote that it would be unfair to require each defendant to exonerate itself." Sindell, supra, 26 Cal.3d at 603, 607 P.2d at 931, 163 Cal.Rptr. at 139. And although alternative liability as formulated in Summers, supra, does not require that defendants be in a better position to identify the source of the harm, Sindell, supra, this is important to application of the theory. Here, the passage of time impairs the efforts of respondents and appellants alike to determine which of the defendants were responsible. In...

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