“As a direct result of the decision of the Court of Appeals in Hymowitz v Lilly & Co., the plaintiff herein moves, on behalf of herself and the numerous plaintiffs in the over 400 DES (diethylstilbestrol) actions currently pending before this court, for an order “deeming all defendants named and served in any DES action a defendant in each pending action”. Such an order would allegedly serve to alleviate the hardship created by the Court of Appeals adoption in Hymowitz of a market share theory as the measure of a DES producer’s liability. Several of the defendants cross-move to impose sanctions against the plaintiff for the bringing of the present motion.
KORREN v. ELI LILLY & CO., Leagle, 1990579150Misc2d429_1508, August 30, 1990.
Plaintiff brings this action against various manufacturers of the drug diethylstilbestrol (DES) to recover for injuries she claims to have sustained as a result of her mother’s ingestion of the drug during pregnancy. Like numerous other plaintiffs throughout the State, plaintiff instituted her action during the one-year “window period” created by New York’s “Toxic Tort Revival Statute” which became effective on July 30, 1986. Under this extraordinary provision persons whose causes of action for exposure to DES (and other substances) had been barred by the statutory limitations period, or whose actions had been dismissed on Statute of Limitations grounds, were permitted to commence an action during a one-year period. (See, Singer v Lilly & Co.)
Plaintiff, allegedly relying on the belief that the Court of Appeals would impose joint liability on the manufacturers of DES even if a plaintiff was unable to identify the manufacturer of the drug taken by her mother, named only a handful of the numerous potential defendants who had already been identified as DES manufacturers and suppliers in nationwide litigation.”
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