“The Court of Appeals, in Hymowitz v Lilly & Co., has adopted a market-share theory, using a national market, for determining liability and apportioning damages in DES cases in which identification of the manufacturer of the drug that injured the plaintiff is impossible. Under that theory, a defendant is not culpable and should not be held liable if it was not a member of the national market of DES marketed for pregnancy. Thus, if a defendant sold DES in a form unsuitable for use during pregnancy or establishes that its product was not marketed for pregnancy use, there should be no liability.
ALLEN v. ABBOTT LABS., Leagle, 1990398160AD2d238_2318, April 5, 1990.
In denying appellants’ motions, Justice Gammerman found that although Rorer and Winthrop sold their DES for non-pregnancy purposes, both manufactured it in doses prescribed for use in pregnancy. He also found “strong evidence” indicating that pharmacists often filled DES prescriptions from whatever stock of DES they had on hand, without regard to whether the drug was prescribed for use during pregnancy or whether it was manufactured by a company that specifically “indicated” the use of DES in pregnancy.”…
… continue reading the full paper ALLEN v. ABBOTT LABS., on Leagle.