Appellate Division Recognizes Preconception Tort Liability in Favor of DES Granddaughter

American courts uniformly recognize a child’s right to sue for injuries sustained prior to birth, yet only a minority of jurisdictions have been willing to extend prenatal tort liability to include actions for injuries resulting from acts committed prior to conception. The New York Court of Appeals has steadfastly refused such an expansion, on the ground that New York does not recognize preconception tort liability under common-law negligence principles. Recently, however, in Enright v. Eli Lilly & Co., the Appellate Division, Third Department, held that a child, injured as a result of her mother’s exposure to diethylstilbestrol (DES), could maintain a preconception tort action against the drug manufacturer on a strict products liability theory.

Appellate Division Recognizes Preconception Tort Liability in Favor of DES Granddaughter, St. John’s Law Review, Issue 3 Volume 64, Number 3 Article 13, April 2012.

In Enright, the plaintiff’s grandmother ingested DES in 1960 while pregnant with the plaintiff’s mother. As a result, the plaintiff’s mother developed abnormalities in her reproductive system, which rendered her unable to carry the plaintiff to term and caused the plaintiff to be born prematurely and to suffer severe and permanent disabilities. The plaintiff’s parents commenced an action on behalf of the infant-plaintiff against several drug manufacturers under the theories of negligence, strict products liability, breach of warranty, and fraud.

The Supreme Court, Chenango County, dismissed all of the plaintiff’s claims, stating that New York did not recognize preconception tort liability. However, the Appellate Division, Third Department, while adhering to New York’s policy of denying a preconception tort action in negligence, reversed the dismissal of the plaintiff’s cause of action in strict products liability.

Writing for the majority, Justice Casey noted that the necessity of establishing manageable bounds for liability, a consideration underlying the Court of Appeal’s reluctance to expand liability in negligence, was conspicuously absent in a strict products liability action. Based on the strong policy favoring a remedy for DES victims, and the legislative intent behind the recent enactment of New York’s toxic tort statute of limitations and revival statute, the court concluded that the plaintiff, though not a DES daughter, was nonetheless a DES victim, and therefore entitled to bring a preconception tort action in strict products liability.

Dissenting, Justice Weiss asserted that the majority overstepped its bounds in setting aside the established rule of not recognizing preconception torts in New York. He maintained that the decision to fashion a new remedy would be better left to the legislature, and argued that the majority misconstrued the legislature’s intent in enacting the toxic tort revival statute. It was Justice Weiss’s contention that the purpose of the statute was merely to allow an action that otherwise would be time barred, and not, as asserted by the majority, to provide a cause of action for future generations not yet conceived at the time of the tort.

While it appears that the court in Enright correctly recognized the need to afford this particular plaintiff a remedy, it is submitted that it failed to establish a compelling doctrinal argument sufficient to persuade the Court of Appeals to abandon its traditional denial of preconception tort liability actions. The court should have found that a preconception tort action is a logical extension of prenatal tort liability, for although the tortious conduct occurs prior to conception, the injury is not sustained until after conception, at which time the tort is complete.

In Albala v. City of New York, the New York Court of Appeals, although denying a preconception tort action in negligence, left open the question as to whether a cause of action in strict products liability would be permitted. In Enright, the Appellate Division seized the opportunity to allow such an action  and justifled its decision by acknowledging a trend toward expanding recovery in DES cases and other DES policy considerations. In addition, the court relied on the legislature’s recently enacted toxic tort statute, including the revival provision, both of which also apply to substances other than DES. Yet, the court restricted a preconception tort action to those affected by DES only, and ignored those injured by other toxins, and thereby committing a grave injustice against victims of toxins other than DES. Moreover, since the statute was adopted to extend the time in which an action may be brought and not to provide a remedy for future generations, the court erred in relying on the statute to justify the recognition of a cause of action for an injury occurring prior to conception.

A more persuasive approach in support of preconception liability in New York would have been to concentrate on an analysis of prenatal tort liability. In Enright, the tortious conduct occurred when the DES was administered, but the tort was not complete until the plaintiff was injured when premature labor was induced. This type of injury can therefore be categorized as a prenatal injury, for which a cause of action already exists in New York. s While the Albala court found prenatal tort cases to be distinguishable, it appears that the only distinction between a prenatal and a preconception tort action is the time at which the wrongful act occurs. Thus, to allow such an arbitrary time restriction to defeat a genuinely compensable injury clearly contradicts the goal of the Albala court which sought to set guidelines for liability in a manner which avoids the drawing of artificial and arbitrary boundaries.

Lastly, although the Enright court had laudable goals in recognizing preconception torts, the boundaries of liability the court attempted to set may prove to be insufficient. An additional limitation on liability should be set to restrict standing in a preconception tort action to the first generation to discover the effects of the tortious conduct. Such a limitation would permit the recognition of preconception tort liability without imposing too harsh a burden on potential defendants.

The timing of the tortious conduct in no way, diminishes the devastating effects wrought by drugs such as DES. New York courts, however, in adhering to a policy denying preconception tort actions, have disregarded the needs of an entire class of plaintiffs. It is urged that the New York Court of Appeals, in order to remedy this injustice, extend the area of prenatal tort liability to include an action for injuries resulting from tortious acts committed prior to conception. The recognition of preconception tort liability in New York would effectuate a right common to all: to be compensated for injuries resulting from the wrongful conduct of another.

Judith M. Reilly, 1990.

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