1988 DES Case: Shirkey v. Eli Lilly & Co.

Julie Shirkey, the plaintiff in this diversity action, appeals from a jury verdict in favor of Eli Lilly & Company (“Lilly”). Shirkey seeks tort damages under both strict liability and negligence theories as compensation for having contracted clear cell adenocarcinoma of the vagina, a cancer that has been linked to in utero exposure to synthetic estrogen. Shirkey attributes her illness to her mother’s ingestion of diethylstilbestrol (“DES”), a form of synthetic estrogen marketed as a prescription drug for the prevention of miscarriage and other complications of pregnancy by Lilly and other pharmaceutical companies from 1947 through 1972.

SHIRKEY v. ELI LILLY & CO., Leagle, 19881079852F2d227_11036, September 9, 1988.

The case went to trial on the liability issue alone with damages issues reserved for later resolution. At the conclusion of the evidence, the district judge read separate instructions to the jury pertaining to negligence and strict liability theories. Responding to a series of special interrogatories, the jury found that Shirkey’s mother had ingested DES manufactured by Lilly while pregnant with Julie. The jury also held, however, that Lilly was neither negligent in marketing DES in 1960 nor strictly liable for having marketed a defective product.

On appeal, Shirkey asserts that the district court’s jury instructions misstated Wisconsin law. She contends that the district judge should not have instructed the jury that Lilly could be held strictly liable only if it knew or should have known about the dangers of in utero exposure to DES. Shirkey also asserts that the district judge’s negligence instruction understated Lilly’s duty to potential users by directing the jury to consider the reasonableness of Lilly’s failure to foresee the specific harm at issue here — cancer in female offspring — rather than the reasonableness of failing to foresee the possibility of some harm to the offspring of pregnant users. Shirkey also contends that the district judge abused his discretion by excluding two bodies of relevant evidence: depositions from an earlier suit against Lilly taken from an expert who was unable to appear at Shirkey’s trial and evidence that DES was ineffective in preventing miscarriages.

We find that Shirkey’s challenges to the jury instructions raise issues that lack determinate answers under existing Wisconsin case law. We will therefore certify questions concerning Wisconsin’s strict liability and negligence law to the Wisconsin Supreme Court under the mechanism provided by Wisconsin law. Since the relevance of the excluded evidence may depend on the correctness of the legal standard that the district court applied, we defer consideration of the evidentiary questions until the Wisconsin Court either clarifies the legal standard or declines our certification and leaves us to anticipate the development of Wisconsin law as best we can.” …

… continue reading the full paper SHIRKEY v. ELI LILLY & CO., on Leagle.

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