1982 DES Case: Pipon v. Burroughs-Wellcome Co.

ABSTRACTs

In Lyons v. Premo Pharmaceutical Labs, diagnosis Inc., the mother identified the prescribing physician who in turn identified the medication and said he did not specify a brand. The pharmacist established that the prescription was filled with tablets made by Premo. It was then found that the bulk medication was supplied to Premo by its manufacturer, Specific Pharmaceutical Labs, Inc., through a broker who never had physical control of the product.

PIPON v. BURROUGHS-WELLCOME CO., Leagle, decision/19821169532FSupp637_11046, June 30, 1982.

Suit was against more than a dozen defendants, among them being Premo, its supplier and the broker, but not Burroughs-Wellcome, the defendant here. All other defendants were granted summary judgment since they were not within the chain of distribution. The case was then settled with Premo and its supplier, but continued against the broker on the theory of strict liability in tort. The opinion does not indicate whether any claim was made against the physician or the pharmacist. …

… The Appellate Division affirmed the summary judgments in favor of manufacturers other than Premo and its supplier after considering theories of “concert of action”, “joint action”, “alternative liability” and the “enterprise theory of liability.” …

… Another case is Namm v. Charles E. Frosst and Company, In that case, 44 defendants were served including Burroughs-Wellcome. The mother identified the physician and the pharmacist. She identified that the medication came as tablets (not capsules) of various sizes, which were white or light in color and none smaller than five milligrams. The pharmacist could only say that he obtained his DES supplies from various sources but could not say whose product was used to fill the prescriptions. …

Plaintiffs here argue that the motion should not be granted but that the case should be placed on a “reserve calendar” until some case involving DES reaches the Supreme Court of New Jersey and is decided. Plaintiffs are confident that the highest court will reverse the requirement that the actual manufacturer be identified. They do not say that a case is now pending there but predict that one will be “in the foreseeable future.

… Putting aside questions that would need to be faced if the case were allowed to stand, such as whether it can be proven that DES caused the injury claimed, or whether DES was taken at all (and the Court notes that the 1965 PDR identifies medications other than DES to prevent miscarriages and there have long been therapies for the purpose that do not involve medication), or whether, if DES was taken and did cause the injury, whether there would have been a miscarriage rather than a birth and so on, it is plain that plaintiffs cannot prove a case against this defendant under the applicable New Jersey law as laid down by its highest court. …

… read the full paper PIPON v. BURROUGHS-WELLCOME CO. on Leagle.

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