2007 DES Case: Galvin v. Eli Lilly & Co.


… “Assuming, as the court does, that only two pills match the description given by Galvin’s mother of the small, round, white, cross-scored pill that she took, Galvin has proffered evidence from which a reasonable jury could find that she was more probably exposed to diethylstilbestrol (“DES”) manufactured by Lilly than the alternative manufactured by Marsh Parker. The events underlying Galvin’s complaint occurred more than four decades ago. Hence, it is hardly surprising that evidence such as pharmacy business records from 1964-65 is unavailable to demonstrate with certainty which manufacturer produced the DES giving rise to Galvin’s claims for relief. But Galvin need not produce at trial evidence of substantial certainty, and the court errs by holding her to a standard of proof greater than is required under the relevant State law, to wit:

“more probable that the event was caused by the defendant than that it was not.”.

GALVIN v. ELI LILLY & CO., Leagle, 20071514488F3d1026_11510, United States Court of Appeals, District of Columbia Circuit, June 8, 2007.

In a universe of two pills, any evidence tending to implicate the Lilly pill suffices to make that pill the more probable cause of Galvin’s injuries. Galvin has proffered multiple pieces of evidence that, when viewed together as a mosaic, support the reasonable inference that among the small, round, white, cross-scored pills, her mother’s DES pill was more probably manufactured by Lilly than by Marsh Parker. In response to Lilly’s alternative theory that the Marsh Parker pill, which also matches Galvin’s mother’s description, may have caused Galvin’s injuries, the court initially acknowledges that, as the non-moving party, Galvin “need not disprove that alternative.” This, however, is what the court requires her to do. Thus, having rejected the probative value of each piece of her evidence viewed in isolation, the court observes that

“Galvin simply has not provided the evidence — market share data for the Marsh Parker pill in a relevant market — necessary for a reasonable juror to conclude that a Lilly pill was probably the cause of her injury.”

But Galvin is not relying solely on statistical evidence. Once that flaw in the court’s analysis is removed the “mosaic” that emerges from Galvin’s evidence, according her as we must the benefit of all reasonable inferences, suffices to defeat Lilly’s claim that it is entitled to judgment as a matter of law, for at the summary judgment stage Galvin is not required to

“produce evidence in a form that would be admissible at trial.”  “…

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

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