“This is a prescription drug liability case brought against a manufacturer for in uterogynecological injury plaintiff Susan Kortenhaus alleges resulted from her mother’s ingestion of DES during pregnancy Her complaint asserts claims against defendant Eli Lilly & Company based on theories of negligence, strict liability and breach of warranty.
KORTENHAUS v. ELI LILLY & CO., Leagle, 1988390228NJSuper162_1372, September 26, 1988.
The matter comes before us on defendant’s interlocutory appeal, on leave granted, from a partial summary judgment precluding it from litigating certain liability issues on the ground these were previously litigated by defendant and resolved against it in an earlier action in New York, Bichler v. Eli Lilly and Co.,reported on appeal and from denial of its subsequent motion for reconsideration. In the February 16, 1988 order for partial summary judgment appealed from, defendant was collaterally estopped, i.e., barred, from disputing that DES was not reasonably safe for accidents of pregnancy in 1953; that in 1953 defendant should have foreseen that DES might cause cancer in the offspring of pregnant women who took it; that a reasonable and prudent drug manufacturer would have tested DES on pregnant mice before marketing it; that the results of such tests would have shown that DES causes cancer in the offspring of tested mice; and that a reasonable and prudent drug manufacturer would not have marketed DES for use in accidents of pregnancy in 1953 if it had known that DES causes cancer in the offspring of pregnant mice. On appeal defendant contends the application of collateral estoppel to preclude it from contesting these factual conclusions was improper.” …
…continue reading the full paper KORTENHAUS v. ELI LILLY & CO., on Leagle.