2003 DES Case: Albers v. Eli Lilly & Co.


“Katherine and James Albers originally filed their six-count Complaint against Eli Lilly and Company (“Lilly”) in the United States District Court for the District of Columbia, advancing a number of claims that stemmed from the ingestion of diethylstilbestrol (“DES”) by Katherine’s mother Mary Murphy while she was pregnant with Katherine some 48 years ago. By mutual consent the action was then transferred to this judicial district, where it was assigned at random to this Court’s calendar. Because the District of Columbia treats statute of limitations issues as procedural, and because the procedural law of the transferor forum continues to apply after transfer, the parties have also agreed that this Court should look to District of Columbia law on that subject.

ALBERS v. ELI LILLY & CO., Leagle, 20031404257FSupp2d1147_11300, United States District Court, N.D. Illinois, Eastern Division, April 15, 2003.

At this point Lilly has moved for summary judgment under Fed.R.Civ.P. (“Rule”) 56 on a host of grounds that its counsel sets out at page 1 of its motion:

Specifically, Lilly is entitled to summary judgment because

  1. plaintiffs cannot prove that she was exposed to DES in utero;
  2. plaintiffs cannot identify Lilly as the manufacturer of the DES to which plaintiff was allegedly exposed, as required under applicable Illinois law;
  3. plaintiffs’ claims are time-barred;
  4. plaintiff cannot prove causation;
  5. plaintiffs’ strict liability claims are timebarred by the Illinois statute of repose;
  6. and plaintiff James Albers cannot maintain a claim for loss of consortium because he was not married to plaintiff at the time of her alleged injury.

In turn, Albers’ counsel have begun their responsive legal memorandum in this fashion:

Without confidence in any single one of their arguments, Defendant proposes four different ones for depriving Ms. Albers of her day in Court, hoping that one will find its mark. Ms. Albers will thwart each seriatim.” …

… continue reading the full paper ALBERS v. ELI LILLY & CO., on Leagle.

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