” In this action stating five separate claims for injuries allegedly sustained by five women against all pharmaceutical companies who allegedly manufactured diethylstilbestrol (DES), in which the women alleged that the drug had been ingested by their mothers (only one alleged that she had ingested the drug herself), the trial court granted complete or partial summary judgments in favor of twenty-six named defendants whose products could not have caused the injuries sustained by the plaintiffs designated in the defendants’ respective motions for summary judgment. In an appeal from these summary judgments, the plaintiff-appellants do not dispute that the defendant-appellees’ products could not have been ingested by them or their mothers, but they contend that there should be industry-wide liability for injuries caused by the ingestion of DES. We reject this argument and affirm the trial court’s order entering summary judgment.
BURNSIDE v. ABBOTT LABORATORIES, Leagle, 1985615351PaSuper264_1584, February 28, 1986.
In separate actions against seventy-two pharmaceutical companies, four women alleged various physical disabilities which they attributed to the ingestion of DES by their mothers during pregnancies in the 1950’s. Another woman’s cause of action, i.e., that of Mrs. Stark, was based upon her own ingestion of DES. DES is a synthetic estrogen first synthesized in 1937 and frequently prescribed by physicians for various purposes, including deterrence of miscarriages. The complaints in this case did not contain averments regarding the identity of the manufacturer whose product had been ingested by the respective users. Plaintiffs concede that they cannot do so. Instead, their complaints contained averments that the defendant pharmaceutical companies were jointly and/or severally liable because, at the time of ingesting the drug, DES was being marketed in generic form.
On June 22, 1982, pursuant to an uncontested motion by Eli Lilly and Company, one of the defendants, the trial court issued an order relating to organization of the defendants and discovery. The order called for a “first stage” of discovery to end June 30, 1983. It said:
The Court recognizes that this is a complicated action which will require a considerable amount of discovery. The Court also recognizes that time and expense to all parties will be minimized if the first stage of such discovery is limited to the determination of which defendants are proper parties to this action. After a determination of the identity of the product ingested by the mothers of plaintiff daughters, some defendants may wish to file motions for relief by way of dismissal, summary judgment or otherwise…
The court ordered further that first stage discovery should consist of depositions, interrogatories and requests for admissions of those who may aid in the determination of the proper parties to the action. Plaintiffs were given until September 1, 1982 to effectuate service on all defendants. During the course of first stage discovery, thirty-two of the original seventy-two defendants were dismissed without objection by the plaintiffs. Seventeen defendants were dismissed because appellants had failed to serve them. Fifteen others were dismissed because each had demonstrated that its products could not have been ingested by any of the alleged users. As of July, 1983, therefore, only forty of the original seventy-two defendants remained as party defendants.
Twenty-six of the forty remaining defendants thereafter filed motions for summary judgment. Each of these defendants argued that discovery proceedings had revealed that the plaintiffs named in its motion for summary judgment could not have been exposed to and injured by its product. ” …
… read the full paper BURNSIDE v. ABBOTT LABORATORIES, on Leagle.