‘ In an action for damages brought by a plaintiff who claims that she was prenatally exposed to diethystilbestrol (DES) and developed vaginal cancer, we are confronted with the question whether a hospital which is alleged to have treated her improperly may seek contribution from the pharmaceutical manufacturer which produced, marketed and sold the alleged cancer-causing agent. We hold that under the facts in this case as framed by the pleadings the hospital may seek contribution.
HELMRICH v. LILLY & CO., Leagle, 198253089AD2d441_1457, November 9, 1982.
DES is the generic name for a medication which duplicates the effects of natural estrogens in the human body. It has been used, and is still being used, to treat a variety of medical conditions. In 1971, however, the Federal Food and Drug Administration “banned” the use of DES for the treatment of problems of pregnancy because of mounting evidence that it was ineffective in preventing miscarriage and dangerous to the unborn children as well. Since then, “the link between prenatal DES exposure and the later development in female offspring of clear cell cervical or vaginal adenocarcinoma, a hitherto rare disease involving cancerous growth in glandular tissue, has been unquestionably confirmed” (Bichler v Lilly & Co.).
Plaintiff was born in 1955 to a mother who ingested DES during pregnancy. In 1969 she began to experience a variety of gynecological disorders which persisted after she enrolled as a student at Syracuse University in 1973. Between 1973 and 1977 she was treated at the university’s Student Health Center as her gynecological symptoms worsened. On July 20, 1977 a private gynecologist consulted by plaintiff diagnosed her condition as clear cell vaginal adenocarcinoma. Radical female pelvic surgery was performed upon her shortly thereafter and all of her internal reproductive organs were removed.
In September, 1979 plaintiff commenced this action against Eli Lilly & Co. (Lilly), a manufacturer of DES, and Syracuse University in which she seeks damages for injuries sustained as a result of her prenatal exposure to DES and the malpractice of the university in treating her. Causes of action were alleged against Lilly in negligence, strict products liability, breach of warranty, misrepresentation and fraud in connection with its production, marketing and sale of DES.
Plaintiff claims in each cause of action against Lilly that she has “sustained serious and permanent injuries”. She also claims that as a result of the university’s conduct in treating her improperly she “has suffered a hysterectomy and other and serious and permanent injuries and damages, incurred economic expense and loss, suffered unnecessary pain, suffering [sic] and mental anguish and has been deprived thereby of the ability to bear children and other injuries and damages. In response to a demand by the university to specify every injury plaintiff claims she sustained because of the acts of defendant [Lilly], or the University, or both”, plaintiff alleged in a verified bill of particulars that “as a result of the negligence of Lilly and the University, plaintiff underwent radical female pelvic surgery and has lost all of her reproductive organs; there is danger of further metastasis and fear of further spread of cancer.”
Plaintiff’s suit against Lilly has been dismissed as barred by the Statute of Limitations. The university, however, asserts in its answer a cross claim against Lilly for contribution. Special Term granted summary judgment to Lilly and dismissed the cross claim on the ground that the university, as a successive independent tort-feasor, can only be liable for the aggravation of plaintiff’s condition and, as such, is not entitled to contribution from the prior tort-feasor, Lilly. We disagree. ” …
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