1990 DES Case: Anderson v. Eli Lilly & Co.

Abstract

Plaintiff Carol Anderson (hereinafter plaintiff) alleges that her exposure to the drug diethylstilbestrol (hereinafter DES) while she was in utero caused certain abnormalities in her reproductive system which prevented her from giving birth to a healthy child and ultimately resulted in a radical hysterectomy, which has left her infertile. Asserting causes of action based upon, inter alia, negligence, breach of warranty and strict products liability, plaintiff commenced this action for damages against a number of defendants that manufactured and marketed DES when her mother ingested the drug. Plaintiff’s husband asserted a derivative cause of action for loss of consortium, seeking damages for the loss of the ability to have natural children of the marriage. The order on appeal here disposed of a number of motions brought by the parties after issue was joined, resulting in various cross appeals. The issues raised by defendants’ appeals were resolved by the recent Court of Appeals decision in Hymowitz v Lilly & Co., leaving only two issues for our consideration. …

ANDERSON v. ELI LILLY & CO., Leagle, 1990249158AD2d91_1233, June 28, 1990.

… In Enright v Lilly & Co., we recognized a strict products liability cause of action in favor of a plaintiff whose injuries were allegedly caused by her mother’s exposure to DES in utero. Plaintiff’s complaint in Enright met the required elements of a strict products liability cause of action, presenting the question of whether we should refuse to permit recovery because the actionable conduct occurred prior to the plaintiff’s conception. …

… The second issue for our consideration concerns the collateral estoppel effect of the jury verdict in Bichler v Lilly & Co. against defendant Eli Lilly & Company herein. That verdict has been given limited collateral estoppel effect in other DES litigation (e.g., Kaufman v Lilly & Co., Schaeffer v Lilly & Co., Rubel v Lilly & Co.), but Lilly contends that since the Bichler case involved the cancer-causing effects of DES, while plaintiff’s injuries herein do not include cancer, the required identity of issues is lacking. Plaintiff, on the other hand, claims that the nature of the injuries is relevant to the proximate cause issue which must be litigated, but Lilly should be precluded from relitigating certain issues, including its failure to test DES.” …

… Read the full paper ANDERSON v. ELI LILLY & CO., on Leagle.

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