1983 DES Case: McElhaney v. Eli Lilly & Co. Memorandum

Plaintiff Patricia Smith McElhaney is a “DES Daughter“; she was exposed to the prescription drug diethylstilbestrol (DES) in utero in 1949. She now complains of injuries allegedly caused by such prenatal exposure. Defendant Eli Lilly & Co. admits that it manufactured and marketed the DES which plaintiff’s mother ingested in 1949 Plaintiff’s cause of action is based solely on strict liability in tort. She contends that defendant’s DES, as marketed in 1949, was in a defective and unreasonably dangerous condition to the consumer. Defendant in turn argues that DES is an “unavoidably unsafe” drug but was not, in 1949, unreasonably dangerous because its harmful side effects relevant here were not then foreseeable by Lilly.

McELHANEY v. ELI LILLY & CO., Leagle, 1983803575FSupp228_1749, November 25, 1983.

When this case was called for trial plaintiff, contending that she had no burden to prove that Lilly knew, or should have known in 1949, of the side effects complained of, conceded she had no evidence on the foreseeability issue Lilly thereupon moved for a directed verdict on the ground that such proof was essential to plaintiff’s cause of action. …

In cases involving prescription drugs “the manufacturer must warn the physician, not the patient”. The prescribing physician acts as a learned intermediary between the patient and manufacturer. In this way, the consumer is able to determine the risks associated with the prescription drug.

In the present case, it is agreed that at the time plaintiff’s mother ingested defendant’s DES, there were no warnings given by defendant of potential adverse side effects such as those allegedly suffered by plaintiff. The issue presented is whether defendant owed a duty to warn in 1949 of such potential side effects.” …

… read the full paper McELHANEY v. ELI LILLY & CO. on Leagle.

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