” The issue presented in this appeal is whether the appellant, Terry Lynn Conley, who was allegedly injured as a result of the ingestion by her mother of the drug diethylstilbestrol (DES), may state a cause of action against numerous DES manufacturers even though she is admittedly unable to identify the specific manufacturer of the drug her mother ingested.
CONLEY v. BOYLE DRUG CO., Leagle, 19851077477So2d600_1979, November 18, 1985.
Ms. Conley filed an action against eleven defendants who manufactured the drug DES in 1955-56 and prior thereto. The action alleges that in 1955-56, before Ms. Conley was born and while she was still in the fetal stage, her mother was given DES. Ms. Conley alleges that her mother was administered the drug in Broward County, Florida. Years later Ms. Conley, who is also a Florida resident, was diagnosed as suffering from cervical adenosis and underwent surgery for the removal of most of her cervix as well as other precancerous and cancerous lesions and tumors. She alleged that her cancer is linked to the ingestion of the DES by her mother and that the drug was defective by reason of the cancer-causing agent it contained and the danger that agent presented to unborn children. She also alleged that she was unable to identify the manufacturer of the DES ingested by her mother. The trial court granted various motions to dismiss and motions for judgment on the pleadings because Ms. Conley was admittedly unable to identify the specific manufacturer of the drug her mother ingested. The only issue which Ms. Conley raises on appeal is whether she must allege the identity of the specific manufacturer of the drug in order to state a cause of action.
In an effort to state a cause of action Ms. Conley has suggested four theories of liability, none of which have yet been approved by the Florida Supreme Court. Under traditional tort law long recognized in Florida, failure to allege legal causation by identifying the specific tortfeasors precludes recovery. It is established law in Florida that district courts of appeal may advocate changes in the law and state their reasons for advocating change, but, nevertheless, they are bound to follow the case law set forth by the supreme court. We do so here. While this court sympathizes with Ms. Conley, we must conclude that we have no authority to approve a theory of liability which does not require her to pinpoint the specific defendant that caused her injury.
While we recognize that the status of tort law in Florida precludes us from approving a new theory of liability, we must also recognize Florida’s constitutional mandate that for every wrong there is a remedy. Art. I, § 21, Fla. Const. This constitutional “guarantee” of a remedy is particularly compelling when the magnitude of the harm is great and the claimant is innocent of any conduct contributing to the injury. Here the consequences of the alleged drug defect are particularly devastating because the resulting cancer is life-threatening and the victim is not the direct consumer of the drug, but rather the consumer’s off-spring. The circumstances are also unique in that the ill effects of the drug did not manifest themselves for years, thereby compounding the problem of identification of the particular manufacturer. Thus, in our view, if appellant’s allegations are accepted as true, it is clear that traditional theories of tort law are inadequate to redress the appellant’s injuries, primarily because of the requirement of identifying the specific wrongdoer. Someone has to pay. Is it to be the admittedly blameless child whose similarly innocent mother ingested the allegedly defective drug? Surely it is more appropriate that the producers of the drug, those who derive profit from its distribution, bear and share the risk of injury from its defects. Because of our concern for the apparent lack of a remedy for a grievous wrong, we would like to add our own observations to the debate as to whether the requirement for identifying the wrongdoer should be relaxed. ” …
… read the full paper CONLEY v. BOYLE DRUG CO., on Leagle.