” Seven drug manufacturers appeal from a well-reasoned determination which denied exculpation based on their claim that they were not the manufacturer of the drug known as diethylstilbestrol (DES), allegedly ingested by the mothers of the plaintiffs. The history of DES is well documented in a previous opinion of this court, Bichler v Lilly & Co.
TIGUE v. E. R. SQUIBB & SONS, INC., Leagle, 1988570139AD2d431_1490, April 14, 1988.
The underlying problem presented is which of the many manufacturers of this unpatented drug should be held culpable, where it cannot be definitively determined which company manufactured the pills ingested by the plaintiffs’ mothers.
In the 1987 Cumulative Supplement to his treatise, 1 New York Products Liability § 8:07, Michael Weinberger succinctly analyzes the present state of the law under the heading Enterprise Liability:
In Bichler v. Eli Lilly & Co., the Court of Appeals affirmed a plaintiff’s verdict, which was based on a concerted action theory. However, the Court did not decide the validity of a cause of action based on concerted action in DES cases. The court stated that because defendant did not object to the trial court’s instructions on concerted action, this theory became the law of the case, and was not preserved for appellate review. Hence, the court took no position on the question of whether New York recognizes a cause of action based on concerted action.
In a later related DES case, the Court of Appeals again took no position on whether the theory of concerted action (or other related theories) should be adopted in DES cases. The court held only that the Bichler jury finding of concerted action was not entitled to collateral estoppel effect, because the issue of concerted action was not actually contested in the trial judge’s jury charge in the earlier case.Therefore, New York still has no position on whether a cause of action in DES cases can be based on concerted action.
As noted … ” … continue reading the full paper TIGUE v. E. R. SQUIBB & SONS, INC., on Leagle.