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

Plaintiff initiated this diversity action (28 U.S.C. Sec. 1332) seeking damages because of her vaginal and cervical adenosis, allegedly caused by her exposure to diethystilbesterol (DES). She admittedly cannot identify the manufacturer of the DES she alleges caused her condition. Defendants have now filed a joint motion contending that each are entitled to summary judgment in light of plaintiff’s inability to prove that any of them manufactured or sold the DES involved here. …

McELHANEY v. ELI LILLY & CO., Leagle, 1983829564FSupp265_1789, May 16, 1983.

The plaintiff has based her cause of action on breach of warranty, negligence, strict liability and theories of enterprise liability, concert of action, market share liability and alternative liability. It is clear that in a diversity action a United States District Court must follow the substantive law of the forum. In the absence of a controlling rule as set forth either by statute or by the state’s highest court, the United States District Court must apply the rule it believes the State Supreme Court would adopt.

… The defendants in the case at bar are or were manufacturers of the drug DES. The above rule does not relieve the plaintiff of proving DES caused her injury or lessen the burden as to any other element necessary under negligence, or strict liability theories. It does, however, remove from the plaintiff the burden of identifying the source of the DES which allegedly injured her and would shift to each defendant, the burden of proving it was not the source of the DES to which plaintiff was exposed. ” …

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

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