“ Plaintiffs Denise Rubel and Ivan Rubel, a married couple, are residents of New York. Denise Rubel was born to Julia and George Horowitz on January 23, 1953. Defendant, Eli Lilly and Company [“Lilly”], is a corporation organized and existing under the laws of Indiana, and does not have a principal place of business in New York. Lilly is a major American pharmaceutical manufacturer which manufactured and supplied Diethylstilbestrol (DES).
RUBEL v. ELI LILLY AND CO., Leagle, 1987832681FSupp151_1811, October 9, 1987.
Allegedly, Julia Horowitz, while pregnant with Denise in 1952, daily ingested one 25 mg. pill of DES purportedly manufactured by Lilly. Plaintiffs claim that the DES ingested by Julia Horowitz injured Denise Rubel in utero, ultimately causing gross tissue and organ abnormality of the cervix and vagina, infertility and consequential physical and emotional distress. Plaintiff does not claim to suffer from cancer or a cancerous condition, nor does she claim that her ailments will become cancerous.
DES is a synthetic estrogen drug that was routinely prescribed between 1947 and 1971 to prevent accidents, such as miscarriages, in pregnancies. Although DES was approved for use in the United States as early as 1941, it was not until 1947 that the Food and Drug Administration (FDA) approved DES for use by pregnant women. In 1971, it was first reported that ingestion of DES by pregnant women could cause vaginal cancer and other abnormalities in the reproductive tracts of their daughters. FDA approval of the drug for treating problem pregnancies was withdrawn. It is estimated that several million women were treated with DES between 1947 and 1971.
Plaintiffs move for partial summary judgment on its claim that Lilly was negligent in marketing DES without adequate testing. Their motion is based on the doctrine of collateral estoppel. Defendant opposes the motion.”
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