Hymowitz v. Eli Lilly and Co.

Facts

Plaintiffs said they were injured by diethylstilbestrol (DES), a synthetic substance that mimics estrogen, which their mothers took during pregnancy. Beginning in 1947, the FDA approved manufacturers to market DES to prevent miscarriages. In 1971 the FDA banned that use after studies showed harmful latent effects on the children of women who took it. Tests indicated that DES caused vaginal adenocarcinoma, a form of cancer, and adenosis, a precancerous vaginal or cervical growth. Plaintiffs generally could not say which company made the pill their mother took. All DES had the same chemical composition. Druggists usually filled prescriptions from whatever was on hand. Approximately 300 manufacturers produced the drug, entering and leaving the market over the 24 years it was sold for pregnancy use. Memories faded, records were lost, and witnesses died. A second barrier was the statute of limitations. New York's exposure rule started the clock at exposure, so many claims expired before the injury was discovered. In 1986 the Legislature adopted a discovery rule for latent injuries and revived, for one year, DES claims that had been time barred. The court described these cases as representative of nearly 500 similar actions pending in the State.

Issues

1. When a DES plaintiff cannot identify which manufacturer made the drug that injured her, may she recover against DES manufacturers, and on what theory of liability should that recovery be based?
2. Does the Legislature's one-year revival of DES claims that were already barred by the statute of limitations violate due process or equal protection under the State and Federal Constitutions?

Holding

Plaintiffs who cannot identify the DES manufacturer may recover under a national-market market share theory, with several-only liability and no exculpation for market members who did not cause the plaintiff's injury. The one-year revival of time-barred DES claims violates neither due process nor equal protection under the State and Federal Constitutions.