” Plaintiff Eli Lilly and Company moves this Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). Defendants, Lilly’s insurers from 1947 to July 15, 1976, vigorously oppose the motion. For the reasons set forth in this Opinion, the Court finds that there is no genuine issue as to any material fact and Lilly is entitled to judgment as a matter of law. Accordingly, the motion of plaintiff for summary judgment is granted.
ELI LILLY AND CO. v. HOME INS. CO., Leagle, 1984654653FSupp1_1654, April 12, 1984.
Eli Lilly is one of several hundred manufacturers of products containing the drug diethylstilbestrol (DES). Between 1947 and 1967, Lilly manufactured and sold DES for prescription use by women with a history of threatened or habitual miscarriages In 1970, a statistical association was shown between the ingestion of DES by pregnant women and the occurrence of vaginal clearcell adenocarcinoma in the female offspring exposed in utero to DES. Since the discovery of this association, Lilly’s liability for clear-cell adenocarcinoma and other DES-related diseases has become the subject of voluminous litigation. Indeed, as of March 1, 1983, approximately 641 lawsuits had been filed against Lilly.
In the typical case, the plaintiff, a DES-daughter, alleges that her mother ingested DES during pregnancy and her in utero exposure to DES caused a DES-related injury. The most common injuries alleged by plaintiffs are vaginal or cervical clear-cell adenocarcinoma and vaginal adenosis Lilly also has been named as a co-defendant with other manufacturers of DES in cases where a plaintiff is unable to identify the manufacturer of the particular synthetic estrogen that allegedly caused the injury These cases are not uncommon since several years elapse between the ingestion of DES by a pregnant woman and the diagnosis of a DES-related disease in the male or female child of that pregnancy.
Lilly notified defendants of the various DES claims filed against it. The general position of each of the insurers is, however, that its policy does not provide coverage for these claims since the proper date of the alleged DES-related injury did not occur during the policy period. In this action for declaratory judgment, Lilly seeks a judgment declaring that
- each policy in force from the date of ingestion of DES until the manifestation of an alleged DES-related injury provides full coverage to Lilly for the entire amount of its indemnifiable losses and expenses, subject only to those underlying dollar limits of liability contained in each policy;
- Lilly may elect under which of the policies in force it will file each claim;
- the insurer which issued the policy that Lilly elects must pay the full amount of Lilly’s indemnifiable losses and expenses with prejudgment interest as permitted by law;
- and the participation or contribution by other insurers whose policies are in force during the period of coverage shall be the responsibility of the insurers and shall not impede or detract from Lilly’s ability to receive indemnification. ” …
… read the full paper ELI LILLY AND CO. v. HOME INS. CO., on Leagle.