1989 DES Case: Clark v. Eli Lilly & Co.

Abstract

Susan and Robert Clark commenced this action to recover damages for injuries allegedly sustained as a result of Susan Clark’s mother’s alleged ingestion of diethystilbestrol (“DES”) in 1954, while pregnant with Susan. Susan Clark claims that her in utero exposure to DES caused her to suffer various physical injuries. Her husband, Robert Clark, contends that because of the physical injuries which Susan has sustained he has been deprived of his wife’s love, companionship, society, consortium, and other services. Defendants E.R. Squibb & Sons, Rexall, Abbott Laboratories, McNeilab, Eli Lilly, and Upjohn have moved to dismiss Robert Clark’s loss of consortium claim under Rule 12(b)(6) and for partial summary judgment with regard to this claim.” …

CLARK v. ELI LILLY & CO., Leagle, 1989855725FSupp130_1836, November 24, 1989.

… “The only issue raised by the defendants’ motions is whether under New York State law a spouse can recover for loss of consortium where the tortious conduct which gave rise to the loss of consortium claim occurred prior to the marriage. Although this question has not been frequently litigated in the New York courts, the courts that have addressed the question have uniformly held that a loss of consortium claim cannot be sustained where the tortious conduct occurred before the plaintiff married the injured person.

The parties do not dispute that Susan Clark’s alleged in utero exposure to DES occurred prior to her marriage to plaintiff Robert Clark. Plaintiff attempts to distinguish the above cases, however, by arguing that unlike the present action

“each of these cases involved personal injuries which had occurred prior to the marriage and were clearly evident and well known to both husband and wife prior to their marriage.”

Accordingly, plaintiff contends that since his wife’s injuries did not manifest until after their marriage, he did not enter the marriage

“with his eyes wide open, and therefore his loss of consortium claim is not precluded under New York law.”  … “

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

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