hymowitz v eli lilly case brief

HYMOWITZ v. ELI LILLY & CO., Leagle, 198956073NY2d487_1518, April 4, 1989. . Citation Hymowitz v. Eli Lilly & Co., 136 Misc. Consequently, DES defendants are not in any better position than are plaintiffs to identify the manufacturer of the DES ingested in any given case, nor is there any real prospect of having all the possible producers before the court. Upload brief to use the new AI search. We conclude that the present circumstances call for recognition of a realistic avenue of relief for plaintiffs injured by DES. that California's approach distorted liability by inflating market shares to ensure plaintiffs of full recovery. In three of the appeals defendants also moved on Statute of Limitations grounds, arguing that the revival of the actions was unconstitutional under the State and Federal Constitutions, and that the complaints, therefore, are time barred and should be dismissed. We also hold that the Legislature's revival for one year of actions for injuries caused by DES that were previously barred by the Statute of Limitations is constitutional under the State and Federal Constitutions. IRA GAMMERMAN, J. The latent nature of DES injuries is well known, and it is clear that in the past the exposure rule prevented the bringing of timely actions for recovery. As discussed in detail in Watchtower's Opening Brief, the New York State Constitution guarantees the fundamental right to due process by restricting the Legislature's ability to unilaterally and unjustifiably revive time-barred claims. On Appeal from the Merrimack County Superior Court We are confronted here with an unprecedented identification problem, and have provided a solution that rationally apportions liability. Under settled strict products doctrine (see e.g., Codling v Paglia, 32 NY2d 330, 338-342; Prosser and Keeton, Torts [5th ed], 98) and Hymowitz v Eli Lilly and Co. (73 NY2d 487, cert denied, __US__, 110 SCt 350), there can now be no question that persons in the position of Karen Enright's mother would have a right to recover for injuries to their reproductive systems. As California discovered, the reliable determination of any market smaller than the national one likely is not practicable. Various defendants argue here that although they produced DES, it was not sold for pregnancy use. Thus the pregnant women who took DES generally never knew who produced the drug they took, and there was no reason to attempt to discover this fact until many years after ingestion, at which time the information is not available. Anabolic steroids in meat and premature telarche, The case of diethylstilbestrol treated veal contained in homogenized baby-foods in Italy, Age at onset of puberty and on postpubertal hormone levels in DES Sons, Sex-dimorphic behaviour development in the human, Drug contamination with diethylstilbestrol, Pseudoprecocious Puberty in Girls as a Result of Estrogen Ingestion, Signs of Sexual Precocity in a Male Infant due to Estrogenic Ointment, Gynecomastia with pigmentation in a four year old male following stilbestrol exposure. The actual operation of this theory proved more mathematically complex when the court was presented with the question of what to do about unavailable defendants. By 1971, it was found to cause vaginal adenocarcinoma and cancerous cervical growth in the offspring. We stress, however, that the DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, generically marketed product, which causes injury many years later, and which has evoked a legislative response reviving previously barred actions. 1) Palsgraf v. The Long Island Railroad Co. Furthermore, it was also well known, particularly after Fleishman v Lilly & Co., that DES victims were prejudiced under current law. The Federal Due Process Clause provides very little barrier to a State Legislature's revival of time-barred actions. , the accepted tort doctrines of alternative liability and concerted action are available in some personal injury cases to permit recovery where the precise identification of a wrongdoer is impossible. Under the Collins structure, the "risk" each defendant is liable for is a question of fact in each case, with market shares being relevant to this determination. In a products liability action, identification of the exact defendant whose product injured the plaintiff is, of course, generally required. In DES cases, however, there is a great number of possible wrongdoers, who entered and left the market at different times, and some of whom no longer exist. However, we eschewed exculpation to prevent the fortuitous avoidance of liability, and thus, equitably, we decline to unleash the same forces to increase a defendant's liability beyond its fair share of responsibility. The present appeals are before the court in the context of summary judgment motions. In Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert ... has already gone to considerable lengths to adapt state substantive law to the particular circumstances of the DES cases. From the record before the court here, however, the facts are not developed well enough to establish that any defendants were not in the national market of DES sold for pregnancy use. . In 1971, however, the FDA banned the use of DES as a miscarriage preventative, when studies established the harmful latent effects of DES upon the offspring of mothers who took the drug. Vale Chemical Company, Endo Laboratories, Inc., and Theodore G. Klumpp, respondents, precluded. It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent … There the jury was instructed on a modified version of concerted action, which, in effect, substituted the fact of conscious parallel activity by manufacturers for the usual common-law requirement that there be proof of an actual agreement between actors to jointly act tortiously. Following a ruling that Hardwick failed to state a claim, the court dismissed. [Footnote 2]. ... “In those cases where the released offender poses a predictable threat of harm to a named or readily identifiable victim, a … We believe, therefore, that inferring agreement from the fact of parallel activity alone improperly expands the concept of concerted action beyond a rational or fair limit; among other things, it potentially renders small manufacturers, in the case of DES and in countless other industries, jointly liable for all damages stemming from the defective products of an entire industry. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here. We answer these questions in the affirmative. Hymowitz v. Eli Lilly & Co. Hymowitz v. Eli Lilly & Co. Posted on November 18, 2016 | Torts | Tags: Torts, Torts Case Briefs, Torts Law. © 2020 Courtroom Connect, Inc. "Alternative" and "Market Share" Causation. PLAINTIFF TERRY MITCHELL’S BRIEF IN SUPPORT OF AN AFFIRMATIVE ANSWER TO QUESTIONS CERTIFIED BY THE UNITED STATES DISTRICT COURT _____ From the United States District Court, District of Utah, Before Magistrate Judge Evelyn J. Furse As we noted in Bichler v Lilly & Co., and as the present record reflects, drug companies were engaged in extensive parallel conduct in developing and marketing DES. In this pharmaceutical product liability action, plaintiff Mindy Hymowitz alleges that she developed cancer as a result of prenatal exposure to diethylstilbestrol (DES), a synthetic estrogen taken by her mother in 1954 during pregnancy to prevent possible miscarriage.. Rule of Law and Holding . Under the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs' injuries among defendants. The Legislature, however, while reviving these time-barred actions, did not resolve the identification problem. The court then held that each defendant who could not prove that it did not actually injure plaintiff would be liable according to that manufacturer's market share. Finally, if all appearing defendants can prove their market shares, their shares are never inflated, regardless of whether the market share of a nonappearing defendant can be proved or not; thus, in this situation, the plaintiff again will not recover her full damages. Accordingly, in each case the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Indeed, in Fleishman v Lilly & Co. the Legislature's attention was drawn specifically to DES by the majority, which stated that any change in the exposure rule was the Legislature's role. Parallel activity, without more, is insufficient to establish the agreement element necessary to maintain a concerted action claim. Georgia's … ... Reported Cases: AMICUS CURIAE brief in Environmental … In DES cases, where it is impossible to determine which D manufacturer's DES caused any given P's injuries, any D manufacturer that participated in marketing DES may be held liable proportional to its market share of the national DES market. From A.D.2d, Reporter Series. We need not light upon a precise test here, however, because the Legislature's revival of DES claims meets the highest standard. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Consequently, for essentially practical reasons, we adopt a market share theory using a national market. Instead, it is our perception that the injustices arising from delayed recoveries and inconsistent results which this theory may produce in this State outweigh arguments calling for its adoption. Finally, while it may be fair to employ alternative liability in cases involving only a small number of potential wrongdoers, that fairness disappears with the decreasing probability that any one of the defendants actually caused the injury. Although strong evidence links prenatal DES exposure to later development of serious medical problems, plaintiffs seeking relief in court for their injuries faced two formidable and fundamental barriers to recovery in this State; The identification problem has many causes. It was invented in 1937 by British researchers, but never patented. Privacy Policy. The history of the development of DES and its marketing in this country has been repeatedly chronicled. We recognized this predicament in Bichler v Lilly & Co., where the court stated that in DES cases it is a "practical impossibility for most victims [to] pinpoint the manufacturer directly responsible for their particular injury". In Fleishman v Lilly & Co. (supra) it became clear that this exposure rule led to many DES cases being barred by the Statute of Limitations before the discovery of injury; we held, however, that any change in the accrual date from exposure to discovery was more properly the prerogative of the Legislature. The identification problem has many causes. If any defendants succeed in rebutting this presumption, the liability shares of the remaining defendants who could not prove their actual market share are inflated, so that the plaintiff received a 100% recovery. If the market share of the absent defendant cannot be shown, the remaining defendants who cannot prove their market shares have their shares inflated to provide plaintiff with full recovery. A narrower basis for liability, tailored more closely to the varying culpableness of individual DES producers, is the market share concept. By 1971, it was found to cause vaginal adenocarcinoma and cancerous cervical growth in the offspring. They seek relief against defendant DES manufacturers. In 1947, the FDA began approving the NDAs of manufacturers to market DES for the purpose of preventing human miscarriages; by 1951, the FDA had concluded that DES was generally safe for pregnancy use, and stopped requiring the filing of NDAs when new manufacturers sought to produce the drug for this purpose. Defendants also argue that the revival statute violates equal protection, because the Legislature designated only five substances for revival, including DES, while instituting a prospective only discovery rule for other substances. Citations are also linked in the body of the Featured Case. Thus our market share theory cannot be founded upon the belief that, over the run of cases, liability will approximate causation in this State. . Moreover, even if it were possible, of the hundreds of cases in the New York courts, without a doubt there are many in which the DES that allegedly caused injury was ingested in another State. The number of DES-caused injuries was relatively well known by the Legislature, which allowed for the ramifications of revival of DES claims, such as the effect on insurance interests, and the other costs, to be reasonably predicted. Hymowitz v. Eli Lilly and Company case brief, lawschoolcasebriefs, January 31, 2013. Sindell v. Abbott Laboratories Case Brief - Rule of Law: In certain circumstances where the plaintiff is unable to identity the actual tortfeasor and it is. Use of a national market is a fair method, we believe, of apportioning defendants' liabilities according to their total culpability in marketing DES for use during pregnancy. . In 1941, the Food and Drug Administration (FDA) approved the new drug applications (NDA) of 12 manufacturers to market DES for the treatment of various maladies, not directly involving pregnancy. Appellate Case No. The dissenter misapprehends the basis for liability here. 2d 338 (1989) Cartel Capital Corporation v. Fireco of New Jersey81 N.J. 548, 410 A.2d 674 (1980) Board of County Commissioners of Teton County v. Bassett. We avoided extending this theory, because its concomitant requirement of joint and several liability expands the burden on small manufacturers beyond a rational or fair limit. We are aware that the adoption of a national market will likely result in a disproportion between the liability of individual manufacturers and the actual injuries each manufacturer caused in this State. Two years after Fleishman v Lilly & Co. the Legislature addressed the Statute of Limitations problem, and instituted a discovery rule for “the latent effects of exposure to any substance” . The Legislature also, for one year, revived causes of action for exposure to DES that had been time barred. ... She brought suit against Eli Lilly & Company and others, alleging that her mother's ingestion of DES in 1953 while she was pregnant with her caused her injuries. Plaintiffs in these appeals allege that they were injured by the drug diethylstilbestrol (DES) ingested by their mothers during pregnancy. Plaintiffs deserved a recovery because there was a policy issue of fairness. Eli Lilly & Co. (1984), 418 Mich. 311, 343 N.W.2d 164 (allowed concert of action).) Under the dissent's theory, a manufacturer with a large market share may avoid liability in many cases just because it manufactured a memorably shaped pill. Summers v. Tice; Hymowitz v. Eli Lilly & Co. Falcon v. Memorial Hospital; Richardson v. Richardson-Merrell Inc. Instead, we choose to apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large. The court held that where two defendants breach a duty to the plaintiff, but there is uncertainty regarding which one caused the injury, "the burden is upon each such actor to prove that he has not caused the harm." CITED BY VISUAL. Precocious sexual development in Puerto Rico, linked to DES, 1982, Annali dell’Istituto superiore di sanita, 1984, Canadian Medical Association journal, 1983, Pharmacology & therapeutics, NCBI PubMed 1980, Fertility and sterility, NCBI PubMed 1979, Prenatal hormone administration and postnatal socialization, 1978, Signs of sexual precocity in seven children due to diethylstilbestrol exposure, 1963, Breast enlargement in two young girls following stilbestrol exposure, 1953, Gynecomastia with pigmentation in a 10 months old male following stilbestrol exposure, 1952. Under the Washington scheme, defendants are first allowed to exculpate themselves by proving by the preponderance of the evidence that they were not the manufacturer of the DES that injured plaintiff. . Hymowitz v. Eli Lilly and Company case brief, lawschoolcasebriefs, January 31, 2013. A large number of cases (500 plus) were brought in New York by Plaintiffs suing for damages. . Steven J. Ahmuty, Nancy Ledy Gurren, John J. Bower and Karen L. Hymowitz for The Upjohn Company, respondent. Additionally, in DES cases many years elapse between the ingestion of the drug and injury. However, the doctrine of alternative liability is "available in some personal injury cases to permit recovery where the precise identification of a wrongdoer is impossible" (Hymowitz v Eli Lilly & Co., 73 NY2d at 505; see Bichler v Eli Lilly & Co., 55 NY2d 571, 580 n 5; Restatement [Second] of Torts: Negligence § 433B). . The Legislature does not violate equal protection by providing a rational piecemeal remedy for what may be a larger problem. Receive notifications of new posts by email. The paradigm of alternative liability is found in the case of Summers v Tice . Consequently, the ever-evolving dictates of justice and fairness, which are the heart of our common-law system, require formation of a remedy for injuries caused by DES. We answer these questions in the affirmative.” …. If a defendant was not a member of the national market of DES marketed for pregnancy, it is not culpable, and should not be liable. Note: The following opinion was edited by LexisNexis Courtroom Cast staff. It appears, however, that we have applied a less strict test in other cases, and have been satisfied if there was an apparent injustice which "calls for [a] remedy," and which is "reasonable" and not "arbitrary.". Supreme Court of Wyoming (2000)8 P.3d 1079 (Wyo. We are wary, however, of setting loose, for application in the hundreds of cases pending in this State, a theory which requires the fact finder's individualized and open-ended assessment of the relative liabilities of scores of defendants in every case. During the hunt, defendants shot simultaneously at the same bird, and plaintiff was struck by bird shot from one of the defendants' guns. With this in mind, we now resolve the issue twice expressly left open by this court, and adopt a market share theory, using a national market, for determining liability and apportioning damages in DES cases in which identification of the manufacturer of the drug that injured the plaintiff is impossible (see, Kaufman v Lilly & Co.,  Bichler v Lilly & Co.,. Instead, here we must proceed on the presumption that the law is constitutional, and will hold otherwise only if it is established that the distinction drawn has no reasonable basis. We are concerned here only with the constitutionality of the statute as it pertains to DES; there are no producers of the other substances, or plaintiffs alleging injury therefrom, before the court on these appeals. Hymowitz v. Eli Lilly & Co. Posted on November 18, 2016 | Torts | Tags: Torts, Torts Case Briefs, Torts Law. , the California Supreme Court resolved some apparent ambiguity in Sindell v Abbott Labs, and held that a manufacturer's liability is several only, and, in cases in which all manufacturers in the market are not joined for any reason, liability will still be limited to market share, resulting in a less than 100% recovery for a plaintiff. It first loosened the requirement that all possible wrongdoers be before the court, and instead made a "substantial share" sufficient. Under these circumstances, the Legislature properly determined that it would be more fair for all plaintiffs to uniformly now have one year to bring their actions, rather than for the courts to begin drawing arbitrary lines transecting this area's shades of gray. Balancing these considerations, we are led to the conclusion that a market share theory, based upon a national market, provides the best solution. . Thus summary judgment cannot at this time be granted on this issue as to any defendants. Consequently, if a particular defendant sold DES in a form unsuitable for use during pregnancy, or if a defendant establishes that its product was not marketed for pregnancy use, there should be no liability. 2d 338 (1989) Cartel … In Sindell v Abbott Labs, the court synthesized the market share concept by modifying the Summers v Tice alternative liability rationale in two ways. . ) Thus this theory also fails in supporting an action by DES plaintiffs. …continue reading the full paper HYMOWITZ v. ELI LILLY & CO., on Leagle. We have not by the backdoor adopted a theory of concerted action. Applied on a limited scale this theory may be feasible, and certainly is the most refined approach by allowing a more thorough consideration of how each defendant's actions threatened the plaintiff. 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