… Lilly seeks reversal on two principal grounds: that the trial court’s instructions on concerted action liability were erroneous, and that the evidence before the jury was legally insufficient to support a verdict in plaintiff’s favor on the issue of concerted action. …
… Lilly claims that the evidence was insufficient to support a determination that cancer to the offspring was a foreseeable risk of prenatal DES exposure. … , Lilly argues that the trial court erroneously declined to instruct the jury about Lilly’s duty to warn.
BICHLER v. LILLY & CO., Leagle, 198262655NY2d571_1571, October 14, 1982.
Concerning proof of foreseeability, Lilly conceded at trial that it was aware by 1947 that DES posed the threat of cancer to the user, that DES had been shown to cross the placental barrier and that DES had caused malformations in the offspring of pregnant mice to which the drug had been administered. Lilly contends, however, that because no human transplacental carcinogen was discovered until 1962, when the first thalidomide babies were born, it could not have foreseen the occurrence of DES-caused cancer in human offspring. Although Lilly’s experts supported this position, plaintiff’s experts testified to the contrary conclusion, which the jury accepted and which we have no reason to disturb. We note, moreover, that the proof shows that a researcher had in 1947 conducted an experiment in which pregnant mice were injected with urethane, an anesthetic administered to women during delivery, in order to determine if the offspring developed cancer from the drug. Obviously, this researcher was concerned about a human transplacental carcinogen.
Concerning the duty to warn, Lilly’s argument has two branches. First, Lilly contends that since all drugs are inherently unsafe, liability for a “side-effect” can only be imposed if the side-effect was foreseeable and if the manufacturer failed to include a warning about it in the literature accompanying the drug. Second, Lilly contends that the jury should have been instructed that no liability can be found against a drug manufacturer if the physician did not rely upon or consider product literature and warnings in prescribing the drug. We have, however, no opportunity to consider the application of these principles to this case because plaintiff‘s theory of liability went far beyond them. As the series of special interrogatories submitted to the jury demonstrates, plaintiff could only recover if knowledge that DES might cause cancer in the offspring of pregnant mothers would have caused a reasonably prudent drug manufacturer not to market DES for problems of pregnancy at all, as opposed to marketing the drug with appropriate warnings. This formulation of plaintiff’s burden was never objected to by Lilly. That being the case, whatever the merits of Lilly’s claims are to a products liability drug case brought on a duty to warn theory, they have no application to this case pleaded and proved exclusively on a failure to test theory.
We have considered Lilly’s remaining arguments and find them to be either unpreserved or without merit. The order of the Appellate Division should therefore be affirmed, with costs.
… read the full paper BICHLER v. LILLY & CO. on Leagle.