” The defendants, Lilly, Abbott, Upjohn, Vale, Merck, and Squibb, seek an order granting partial summary judgment dismissing the derivative claim of plaintiff Kevin Murphy for loss of consortium on the ground that the alleged tortious conduct which gave rise to his wife’s claim for personal injury occurred prior to the marriage.
MURPHY v. ELI LILLY & CO., Leagle, 1989169146Misc2d23_1166, December 1, 1989.
The defendants’ motions for partial summary judgment must be granted. Damages for loss of consortium are not recoverable where, as here, the alleged wrongful conduct preceded the marriage. (Clark v Lilly & Co.)
The policy behind this rule is that a third party should not be able to “create an ex post facto liability for loss of consortium where none existed before” simply by marrying an injured person. The plaintiff Kevin Murphy’s reliance on Enright v Lilly & Co. is misplaced.
The latter case cited Piccirelli v Johns-Manville Sales Corp. as authority for the proposition that where a personal injury action is revived, the derivative loss of consortium claim is also revived. In Piccirelli, an asbestos case, the parties were married on the date of the alleged tortious conduct and, thus, the derivative cause of action was revived, as well. Such is not the case here.” …
… continue reading the full paper MURPHY v. ELI LILLY & CO., on Leagle.