1985 DES Case: Kaufman v. Eli Lilly & Co.


This is one of 15 similar actions pending in the First Department seeking to recover from pharmaceutical companies for injuries allegedly sustained by the plaintiff daughters as a result of their mothers’ ingestion of the drug diethylstilbestrol (DES) while pregnant. In 1977 the Assistant Administrative Justice designated the actions as “complex litigation cases” and assigned them to Justice Arnold Fraiman, directing him to handle all matters relating to them. The first of the 15 actions chosen to be tried was Bichler v Lilly & Co. and the rest were held pending its disposition. The principal issue in this appeal is the collateral estoppel effect to be given to certain jury findings in that action.

KAUFMAN v. LILLY & CO., Leagle, 198551465NY2d449_1466, July 9, 1985.

After we sustained a jury verdict against Lilly in Bichler, plaintiff moved for partial summary judgment precluding Lilly from relitigating six issues decided by the Bichler jury, a severance of the action against Lilly and an immediate trial on the issues of DES ingestion, causation and damages. Lilly cross-moved to depose two of the jurors in the Bichler case to establish that their verdict was a compromise. The remaining defendants cross-moved for a severance in the event the court granted plaintiff’s motion for collateral estoppel against Lilly. Special Term granted plaintiff’s motion for partial summary judgment, denied Lilly’s cross motion and granted the codefendants’ motions for a severance. A divided Appellate Division affirmed and granted Lilly leave to appeal to this court on a certified question. We now modify the order of the Appellate Division and hold that Lilly may not be collaterally estopped from relitigating the jury’s finding that it acted in concert with other drug manufacturers in testing and marketing DES for use in treating accidents of pregnancy. Our modification is required because the concerted action liability found in Bichler was based on an unresolved question of law which should not be given preclusive effect in this litigation.” 

… read the full paper KAUFMAN v. LILLY & CO., on Leagle.

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