” In an action to recover damages for adenocarcinoma of the cervix and vagina alleged to have resulted from the ingestion by plaintiff’s mother of Diethylstilbestrol (DES) while pregnant with plaintiff, the defendant Eli Lilly & Company (Lilly), appeals from an order entered December 3, 1982, which:
- granted plaintiff’s motion for partial summary judgment on the basis of issue preclusion as to certain issues determined by the special verdicts and judgment in Bichler v Lilly & Co.;
- granted plaintiff’s motion and that of codefendants for a severance of plaintiff’s action against Lilly from that of the trial to be conducted on plaintiff’s claims against all other codefendants, including eight pharmaceutical companies;
- and denied Lilly’s cross motion to vacate a prior order restraining counsel from communicating with jurors in the Bichler case and for leave to depose two named jurors in the Bichler case.
KAUFMAN v. ELI LILLY & CO, Leagle, 198479499AD2d695_3311, February 9, 1984.
In significant respects, the issues presented on this appeal are similar to those addressed by this court recently in Goldstein v Consolidated Edison Co. Both cases involve the appropriateness of an affirmative application of issue preclusion in the absence of mutuality in the context of a multiple claimant situation against the contentions of a defendant that circumstances surrounding the determination sought to be given preclusive effect render the application of issue preclusion fundamentally unfair. To the extent to which Lilly relies upon grounds similar to those relied upon by the defendant in Goldstein, and there found insufficient by a majority of this court to justify the denial of issue preclusion — indications of a compromise verdict and alleged prior inconsistent determinations — I find Lilly’s arguments less persuasive on balance than I had evaluated the comparable arguments presented in Goldstein, although of sufficient merit to make this a close question. However, the central issue here seems to me to derive from a legal development that
- leaves in serious doubt the viability of the concert of action theory of liability on the basis of which this court sustained Lilly’s liability in Bichler for a product not proved to have been manufactured by Lilly,
- and strongly suggests that a sounder basis for imposing liability, and one more likely to be sustained by the Court of Appeals, may be found in the modified alternative liability theory developed by the California Supreme Court in Sindell v Abbott Labs. an approach that this court did not have an opportunity to consider in Bichler, and which requires the joinder in a single action of companies representing a substantial portion of the relevant market.
In affirming the Bichler judgment, the Court of Appeals found that the defendant had not preserved for its consideration the essential issues of liability presented in the case, and was explicit that the affirmance was not to be taken as an acceptance either of that theory of liability or indeed of any other that had been advanced in DES cases. In the light of this carefully limited holding, it is surely significant to the issue before us that a decisive majority of the courts that have addressed the issue have rejected the concert of action theory of liability sustained by this court in Bichler, some in comprehensive, carefully detailed opinions written subsequent to this court’s decision. It is equally significant that in an opinion written subsequent to this court’s decision, the Massachusetts Supreme Court indicated that in a proper case it might be prepared to sustain liability on the basis of the modified alternative liability theory. (See Payton v Abbott Labs.)
The effect of the several determinations embraced in the order appealed from is to require a second trial on a theory of liability not likely to be sustained by the Court of Appeals, and to defer for some period of time a trial that would permit a determination of factual issues relevant to a theory of liability that has a better chance of being sustained. In any event, it seems to me manifestly preferable in the interest of the expeditious, economical and fair determination of the many pending DES lawsuits in this State that there be an early trial which permits a resolution of issues pertinent to more than one theory of liability in this unclear and doubtful area, and which would also present the possibility of a definitive determination of liability with regard to pharmaceutical companies that collectively represent a very large share of the DES market. ” …
… read the full paper KAUFMAN v. ELI LILLY & CO, on Leagle.