“At issue on this appeal is whether the infant plaintiff, Karen Enright (hereinafter plaintiff), who was born with various physical disabilities, has a cause of action against the manufacturers of the drug diethylstilbestrol (hereinafter DES), which was allegedly ingested by plaintiff’s grandmother while pregnant with plaintiff’s mother and allegedly caused certain physical abnormalities in the mother which, in turn, caused the physical disabilities with which plaintiff was subsequently born. Supreme Court answered this question in the negative and dismissed all causes of action seeking to recover damages for plaintiff’s injuries. We reach a contrary conclusion as to plaintiff’s strict products liability cause of action.
ENRIGHT v. ELI LILLY & CO., Leagle, 1990219155AD2d64_1211, March 22, 1990.
The complaint alleges that plaintiff Patricia Enright (hereinafter Enright), who was born in 1960, was exposed to DES in utero as a fetus due to her mother’s ingestion of DES during pregnancy at the direction of a physician. It is further alleged that due to this exposure Enright developed certain anatomical abnormalities and deformities in her reproductive system which subsequently prevented her from carrying a baby to full term. Enright gave birth to plaintiff in August 1981. It is alleged that plaintiff was born prematurely due to Enright’s abnormalities developed as a result of exposure to DES and that plaintiff’s premature birth caused plaintiff to develop severe disabilities which will affect her for her entire life.
Enright and her husband commenced this action individually and on behalf of plaintiff against various manufacturers of DES, alleging causes of action sounding in negligence, strict products liability, breach of warranty and fraud. Damages are sought for physical and emotional injuries sustained by Enright, and physical injuries, pain and suffering sustained by plaintiff. Enright’s husband asserts a derivative cause of action and a cause of action based upon the inability to have a healthy natural child of the marriage. The complaint also alleges that if it cannot be proven which of defendants manufactured the DES ingested by plaintiff’s grandmother, recovery would be sought on the basis of alternative liability and/or enterprise liability and/or market share liability.
After issue was joined, defendants moved for summary judgment, claiming, inter alia, that since New York does not recognize preconception tort liability, all claims based upon plaintiff’s injuries must be dismissed; that no recovery could be had by parents for damages based upon emotional distress resulting from the birth of an impaired child; that the failure to identify the manufacturer of the DES ingested by plaintiff’s grandmother required dismissal of all claims; and that Enright’s claims were time barred since the revival statute under which they were brought is unconstitutional.
Supreme Court held that New York does not recognize preconception tort liability; that New York does not permit parents to recover for emotional distress resulting from the birth of an impaired child; that Enright and her husband could proceed on a concerted action theory of liability; and that the revival statute is constitutional. The resulting order generated the parties’ cross appeals.” …
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