2005 DES Case: Baughn v. Eli Lilly & Co.

Abstract

… “Barbara Baughn was born on August 19, 1965 in Chanute, Kansas, and has lived in Kansas her entire life. Plaintiffs mother, who was pregnant with Barbara in 1964 and 1965, testified that plaintiff was born one week before her due date. From the second month of pregnancy until plaintiff was born, plaintiffs mother took DES prescribed by Dr. Reuben Burkman. Plaintiffs mother purchased DES at Baker & Burkman Pharmacy in Chanute, Kansas. Dr. Burkman owned Baker & Burkman Pharmacy and the pharmacy was attached to his clinic. Plaintiffs mother took DES four times a day in small round red tablets.

BAUGHN v. ELI LILLY & CO., Leagle, 20051533356FSupp2d1177_11429, United States District Court, D. Kansas, February 17, 2005.

In 1964 and 1965, Lilly made and sold DES in a 25 milligram dosage in round red enteric coated tablets. Lilly’s product information recommended a dosage of 25 to 100 milligrams per day for prevention of “accidents of pregnancy.”

In 1965, Dr. Burkman prescribed DES on a fairly common basis to prevent miscarriage. Joan Augustine, a nurse, began working for Dr. Burkman in the spring of 1965. Augustine testified that on occasion, she went into the pharmacy to “fix up” a prescription when the pharmacist was gone. Augustine does not recall when she began helping with prescriptions, but she probably did so for some prescriptions in 1965. Augustine cannot recall preparing a prescription for plaintiffs mother—or any other DES prescription—in 1965.

Augustine testified that the pharmacy stocked Lilly DES in little red entericcoated tablets in 1965, that she recalls only DES from Lilly on the pharmacy shelf, that she believes that the pharmacy carried only DES from Lilly, and that the pharmacy carried a lot of Lilly products. Augustine testified that she cannot recall specifically what dosage the Lilly red DES tablet came in, but that she believed it was one milligram.

Dr. Burkman always had a Physicians’ Desk Reference (“PDR”) in each examining room. In the PDRs for 1964 and 1965, Lilly’s DES advertisements do not mention any risk related to DES during pregnancy, either to the mother or the fetus.

Plaintiff claims that as a result of her exposure to DES in utero, she suffered pregnancy complications, pregnancy losses and infertility for which she sought medical treatment in Kansas. Barbara did not learn of her claim against defendant until late 2001. On May 8, 2003, Barbara Baughn filed suit against Lilly in the United States District Court for the District of Columbia. On November 7, 2003, pursuant to 28 U.S.C. § 1404(a), the court transferred its case to this Court.

Plaintiff asserts four theories of recovery in this product liability action: negligence, strict liability, breach of warranty and negligent misrepresentation. The parties and the Court agree that Kansas substantive law applies in this case.

In its motion for summary judgment, Lilly argues that (1) plaintiff cannot prove that it manufactured the DES to which she was allegedly exposed and (2) absent proof that Dr. Burkman prescribed only DES manufactured by Lilly, plaintiff cannot rely on the presumption that he would have heeded a different warning by Lilly.” …

… read the full paper BAUGHN v. ELI LILLY & CO. on Leagle.

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