” Plaintiff, Nancy J. McCreery, appeals from a summary judgment granted defendant, Eli Lilly and Company, in a product liability action. Plaintiff suffers from a benign cell disorder of the cervix described as vaginal adenosis. She alleges her condition is attributable to her mother’s use of diethylstilbestrol (DES) to prevent miscarriage during pregnancy in 1953, and inferentially, she fears that her cell disorder may become malignant.
Plaintiff now asserts liability against defendant, Eli Lilly and Company, notwithstanding her inability to identify the specific manufacturer of the pharmaceutical compound (diethylstilbestrol) taken by her mother, on the theory that defendant was one of at least 142 manufacturers of DES at the time of her conception and as such, was a jointly and severally liable tortfeasor.
By her complaint, plaintiff asserted four causes of action;
- the first alleged that defendants, Eli Lilly and Company (Lilly) and 30 Does, were the manufacturers and suppliers of the drug known as diethylstilbestrol, and negligently tested, manufactured, and marketed the drug;
- the second alleges that Lilly and 30 Does “designed, manufactured, distributed and sold a defective product, to wit, DES;”
- the third alleges that Lilly and the Does falsely labeled and misrepresented to plaintiff and her mother’s physician material facts about the drug. The second and third causes of action seek to impose strict product liability.
- The fourth cause of action is for the physician’s alleged malpractice in prescribing the drug.
McCREERY v. ELI LILLY & CO., Leagle, decision/197816487CalApp3d77_1158, December 6, 1978.
Discovery revealed that plaintiff did not know and could not ascertain the specific pharmaceutical compound taken by her mother or the identity of the manufacturer; that her mother was unable to remember the name, color, dosage, or dosage frequency of the medication taken; that her mother had not relied upon any advertising by Lilly and did not suffer any side effects after taking the drug; that her mother’s doctor could not recall the drug prescribed or whether he had preferred one manufacturer’s drug over that of another; that the pharmacy that had filled the prescription had been sold upon the owner’s retirement and that the records pertaining to the prescription had been destroyed; and that the only record relating to the prescription kept by the doctor during the period of pregnancy stated only that “`Des stilbesterol 25 mgs., b.i.d. beginning the first day of her period.’ … `continued to take stilbesterol.’ … `patient was nausiated [sic] by two stilbesterols a day….'”
Moreover, counsel for plaintiff concedes that he named Lilly as a defendant only after consulting a 1970 copy of a Physician’s Desk Reference Book and finding Lilly listed as the only manufacturer of diethylstilbestrol, but now acknowledges that the identity of the manufacturer of the specific drug taken cannot, under any circumstances, be identified.
Upon these facts, defendant moved for and was granted summary judgment. “
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