” Petitioner Patricia Magallanes is the plaintiff in an action to recover damages for injuries she allegedly sustained, the development of cancer, by reason of her mother’s ingestion of the drug diethylstilbestrol (DES) while plaintiff was in utero. The defendants and real parties in interest (defendants) are the alleged manufacturers and distributors of a substantial share of the DES available to plaintiff’s mother at the time she ingested the substance.
MAGALLANES v. SUPERIOR COURT, Leagle, 19851045167CalApp3d878_1988, May 3, 1985.
In the first and fourth causes of action of her first amended complaint, plaintiff alleged, inter alia, that in manufacturing and distributing the DES the defendants acted with conscious disregard of the rights and safety of the general public; in her prayer she sought punitive, as well as compensatory, damages.
On August 11, 1983, the respondent trial court granted defendants’ motions to strike plaintiff’s punitive damage allegations. (Code Civ. Proc., § 436.) The court granted plaintiff leave to move to amend to allege such damages at any time more than six months prior to trial, and suggested that she conduct further discovery prior to so moving. The court ruled “that there should be identification of a particular defendant before punitive damages may be alleged.” Plaintiff’s subsequent motion for reconsideration was heard and denied.
This petition for writ of mandate seeks to compel the trial court to vacate its order of August 11, 1983, granting defendants’ motions to strike the punitive damage allegations from the first amended complaint, and to enter a new order denying the motions to strike. We issued an alternative writ of mandate.
Plaintiff contends “that under established California law, and under the persuasive reasoning” of Morris v. Parke, Davis & Co., “punitive damages may be awarded in a `market share’ action” brought pursuant to Sindell.
Defendants challenge the timeliness of the petition, the sufficiency of petitioner’s allegations of malice, and the persuasiveness of the decision in Morris, and controvert plaintiff’s contention that punitive damages can be awarded in a Sindell type market share action.” …
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