1995 DES Case: Fraser v. Eli Lilly & Co.


“Under the law of the State of Washington, which must be applied in this case with respect to the Statute of Limitations issue (Besser v Squibb & Sons), the question of when a plaintiff discovered, or, with reasonable diligence, should have discovered, all of the essential elements of her cause of action, creates an issue of fact.

FRASER v. ELI LILLY & CO., Leagle, 1995421221AD2d200_1322, November 14, 1995.

In this case, the injury occurred prior to the enactment and effective date of the Washington Revised Code § 7.72.060 (3) (L 1981, ch 27, § 7). Accordingly, plaintiff’s knowledge, as of May 1983, that her injuries were caused by her mother’s gestational ingestion of Stilbestrol, standing alone, was insufficient to trigger the accrual of her cause of action, unless she otherwise may be imputed with knowledge of the additional elements of her cause of action, including knowledge of the defective or dangerous nature of the product; the existence of a seller in the business of selling the product; and a lack of substantial change in the condition of the product.”

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

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Matter of New York County DES Litigation


“This case involves the question of whether defendant-appellant Boyle & Co. Pharmaceuticals (Boyle) is subject to the personal jurisdiction of the New York courts. It is a given that plaintiffs’ mothers ingested DES in New York and that plaintiffs were in utero in New York when the exposure to DES took place. It is also accepted that Boyle is a closely held California corporation which manufactured and sold DES in the States west of the Mississippi from 1949 to 1960. It has never maintained an office, held a license or been registered to do business in New York, or even placed an advertisement in New York. Further, it claims that it never directly sold DES in New York or shipped it here, and for the purposes of this appeal, we accept those claims as true.” …

MATTER OF NY COUNTY DES LITIG., Leagle, 1994208202AD2d6_1207, August 18, 1994.

…”The plaintiffs are proceeding on a “market share” theory of liability because they are unable to link the ingestion of DES (diethylstilbestrol) by their mothers during their pregnancies to any specific manufacturer (see, Matter of DES Mkt. Share Litig.; Hymowitz v Eli Lilly & Co.). In Hymowitz, the Court of Appeals noted that “extant common-law doctrines, unmodified, provide no relief for the DES plaintiff unable to identify the manufacturer of the drug that injured her” but concluded that these circumstances “call for recognition of a realistic avenue of relief for plaintiffs injured by DES” and that “judicial action is again required to overcome the `”inordinately difficult problems of proof”‘ caused by contemporary products and marketing techniques”. Finding that the DES situation was “a singular case” and an “unusual scenario”, the Court said: “Consequently, for essentially practical reasons, we adopt a market share theory using a national market. We are aware that the adoption of a national market will likely result in a disproportion between the liability of individual manufacturers and the actual injuries each manufacturer caused in this State. Thus, our market share theory cannot be founded upon the belief that, over the run of cases, liability will approximate causation in this State [citation omitted]. Nor does the use of a national market provide a reasonable link between liability and the risk created by a defendant to a particular plaintiff [citations omitted]. Instead, we choose to apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large. Use of a national market is a fair method, we believe, of apportioning defendants’ liabilities according to their total culpability in marketing DES for use during pregnancy. Under the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs’ injuries among defendants.” …

… continue reading the full paper MATTER OF NY COUNTY DES LITIG., on Leagle.

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The 1953 Clinical Trial of Diethylstilbestrol During Pregnancy: Could It Have Stopped DES Use?


The legacy of diethylstilbestrol (DES) lives on in children of an estimated 2-3 million women exposed to it during pregnancy.

  • Do we know that children of the DES children are not at an increased risk of conditions transmitted from the DES grandmother?
  • Could the tragic consequence of DES have been prevented with the Dieckmann et al clinical trial? 

SUSPENDED JUDGMENT, The 1953 Clinical Trial of Diethylstilbestrol During Pregnancy: Could It Have Stopped DES Use?, Heinz W. Berendes, MD, MHS, and Young J. Lee, PhD, Division of Epidemiology, Statistics and Prevention Research, National Institute of Child Health and Human Development, National Institutes of Health, Bethesda, Maryland, sciencedirect, 1993.

The answer to this latter question is no. DES was introduced and promoted long before the trial. However, had the Dieckmann DES clinial trial preceded the widespread use of DES, then the answer could have been yes. More realistically, the answer is somewhere in the middle. We believe that it is a good question to raise, but an impossible one to answer.

Dieckmann et al conducted a clinical trial to determine the value of DES in their obstetrical practice between September 1950 and November 1952. Women were eligible to participate if they registered in prenatal clinics affiliated with the Department of Obstetrics of the University of Chicago and were 6-20 weeks pregnant. Women with such complications as chronic hypertensive vascular disease, diabetes mellitus, or repeat abortions were included. Participants were assigned consecutively with every other patient serving as a control. Treatment was continued from enrollment to 35 weeks gestation. Clinicians, patients, and statisticians were blinded regarding the treatment allocation of patients. Patients kept dally records of tablets consumed that were checked against the box of tablets received at each prenatal visit and at 35 weeks gestation when treatment was terminated. The treatment and the placebo tablets included a dye to check objectively on patients compliance, and patients were asked to provide urine specimens at each visit. No information is available”

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1983 DES Case: Trahan v. E.R. Squibb & Sons, Inc.


“Susan Denise Trahan has filed suit against E.R. Squibb and Sons, Inc., for injuries occurring allegedly as the result of her in utero exposure to Diethylstilbestrol (DES) manufactured by the defendant E.R. Squibb and Sons, Inc. The plaintiff originally claimed a right to recovery under theories of express and implied warranties, but now agrees that any recovery must be based on negligence or strict liability. Squibb has moved for summary judgment on the strict liability cause of action, claiming that the substantive law of North Carolina controls and that North Carolina’s highest court has expressly refused to adopt that doctrine. Trahan argues that Tennessee law, which recognizes strict liability, should apply.

TRAHAN v. E.R. SQUIBB & SONS, INC., Leagle, 19831072567FSupp505_1979, August 2, 1983.

The plaintiff’s mother was apparently a domiciliary and resident of North Carolina during the entire time she was pregnant with Ms. Trahan. Her doctor prescribed treatment with DES as a means of preventing spontaneous abortion. That treatment and the plaintiff’s birth occurred in North Carolina. At the time of her birth no one diagnosed the plaintiff as having a DES related injury. The record is unclear as to whether the lack of such a diagnosis was because the condition had not yet developed, because the condition was not medically discoverable at that time even though it had already developed, or merely because the doctor failed to detect a condition which was discoverable.

Some years after her birth, the plaintiff moved to Tennessee where she became pregnant. Dr. Horace T. Lavely examined the plaintiff in Tennessee on January 15, 1976, before she became pregnant and again on April 10, 1979, when she was three months pregnant. At both of these examinations he found no abnormality of her cervix. (SeeDeposition of Dr. Horace T. Lavely, Jr., p. 7, lines 16-17 and p. 8, lines 7-12). Ms. Trahan’s incompetent cervix was not diagnosed until she was 26 weeks pregnant. That diagnosis was made by Dr. Marcia Montgomery during an examination in Tennessee which occurred while the plaintiff was a resident and domiciliary of Tennessee. Ms. Trahan while in Tennessee gave birth and suffered the damages of which she complains.” …

… continue reading the full paper TRAHAN v. E.R. SQUIBB & SONS, INC., on Leagle.

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1994 DES Case: Millar-Mintz v. Abbott Laboratories


“This appeal arises out of a pharmaceutical product liability action brought by plaintiffs, Marianne Millar-Mintz (Marianne) and Dan Mintz, against various drug companies, seeking recovery for injuries allegedly caused by Marianne’s mother’s ingestion of diethylstilbestrol (DES). The trial court granted the drug companies’ joint motion to dismiss plaintiffs’ second amended complaint, on the ground that our supreme court’s decision in Smith v. Eli Lilly & Co., precluded plaintiffs’ claim. Plaintiffs now appeal the dismissal of count II of their second amended complaint, contending that the trial court erred in refusing to apply the substantive law of New York to their claim. For the following reasons, we affirm the judgment of the trial court.

MILLAR-MINTZ v. ABBOTT LABORATORIES, Leagle, 1994923645NE2d278_1903, November 21, 1994.

The record reveals the following relevant facts. Marianne was born in New York on February 15, 1949. While Marianne’s mother, Gussie Millar, was pregnant with Marianne, Gussie took DES on a prescription from her obstetrician. In 1969 or 1970, Marianne moved to California. Sometime in the mid 1970s, Marianne was examined at a DES clinic in California, where she was advised that she had vaginal adenosis, a benign condition that was associated with prenatal DES exposure. In 1977, Marianne married Dan Mintz, and the couple moved from California to Illinois, where they continue to reside.

Plaintiffs first attempted to have a child in 1981. After failing to conceive, Marianne sought medical care from Dr. James Schreiber, the former head of reproductive endocrinology at the University of Chicago Hospitals. In 1983, Dr. Schreiber informed Marianne that she had an unusual T-shaped uterus and abnormally small cervix, that these abnormalities were associated with prenatal exposure to DES and that they prevented her from conceiving. Dr. Schreiber continued to examine and treat Marianne for her inability to conceive until 1986, including two attempts atin vitro fertilization. In 1986, Dr. Schreiber advised Marianne that her infertility problems were consistent with his previous diagnosis.

On November 12, 1986, plaintiffs filed a two count complaint against seven pharmaceutical companies that had manufactured and sold DES, alleging strict products liability (count I) and negligence (count II). In count II, plaintiffs alleged that they could not identify the manufacturer of the DES ingested by Gussie Millar during her pregnancy with Marianne, but that all manufacturers of DES were liable for Marianne’s infertility under a “market share liability” theory. On November 3, 1987, the trial court, Judge Myron T. Gomberg presiding, struck portions of count I of plaintiffs’ complaint, and granted leave to plaintiffs to file an amended complaint. Subsequently, in separate orders, the trial court, Judge Thomas P. Quinn presiding, granted defendants’ separate motions to dismiss count I of plaintiffs’ first amended complaint as barred by the Illinois statute of repose.

On November 14, 1990, the trial court, Judge Paddy H. McNamara presiding, dismissed count II of plaintiffs’ first amended complaint on defendants’ motions for judgment on the pleadings based on the supreme court’s holding in Smith v. Eli Lilly & Co.In Smith, our supreme court rejected the “market share liability” theory as viable for tort claims in Illinois. At that time, the trial court granted plaintiffs’ motion to file a second amended complaint, providing plaintiffs an opportunity to assert some other theory of recovery.

On November 21, 1990, plaintiffs filed their second amended complaint in two counts, alleging in count II a modified theory of market share liability as announced in the New York case, Hymowitz v. Eli Lilly & Co., and asserting for the first time that the substantive law of New York governed their action. Defendants filed a joint motion to dismiss plaintiffs’ second amended complaint pursuant to section 2-619 of the code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-691 (Now 735 ILCS 512-619 (West 1992))), arguing that under a “choice of law” analysis, Illinois has the most significant relationship to plaintiffs’ claim, and that plaintiffs’ claim is precluded by Smith.”  …

… continue reading the full paper MILLAR-MINTZ v. ABBOTT LABORATORIES, on Leagle.

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1994 DES Case: Wind v. Eli Lilly & Co.


… “It is well settled that a settlement agreement is a contract subject to principles of contract interpretation and that where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used. Moreover, it is equally well settled that an ambiguity should not be found where none in fact exists.

WIND v. ELI LILLY & CO., Leagle, 1994430210AD2d220_2139, December 5, 1994.

In this case, the parties’ stipulation of settlement was clear, concise, and unambiguous. The settlement was to include all the New York State DES cases that the plaintiff’s counsel’s law firm handled, and made no mention of any “third generation claims”.

Prior to the settlement, the subject “third generation claims” had been dismissed in New York by the Court of Appeals in Enright v Eli Lilly & Co. Accordingly, these “third generation claims” were properly excluded from the settlement by the court.”

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

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1994 DES Case: Wood v. Eli Lilly & Co.


… “The plaintiffs, Mrs. and Mr. Wood, are parents of a son whose premature birth and resulting permanent injury to his digestive system costs them significant medical expense. The Woods contend their losses were ultimately caused by exposure to a synthetic estrogen, DES. In 1959, while the son’s grandmother was pregnant with his mother, the grandmother was prescribed and took DES. The grandmother purchased this medication from a military pharmacy in Florida. Twenty-nine years later, the mother gave birth to her son prematurely. The Woods allege injuries to their son were the result of the mother’s in utero exposure to DES while she was carried by the grandmother.

WOOD v. ELI LILLY & CO., Leagle, 199454838F3d510_1473, October 11, 1994.

The Woods originally named twenty-seven drug manufacturer defendants and claimed all were liable under market share nonidentification theory. By November 1991, when the Woods filed their third amended complaint, twenty-four of the original twenty-seven defendants had been dismissed, although the Woods added another defendant during the interim. The four remaining defendants filed motions for summary judgment based on the inability of plaintiffs to identify the specific manufacturer of the DES ingested by the grandmother. The Woods moved to amend to assert the additional nonidentification theory of alternative liability, and their motion was denied. Nonetheless, the Woods asserted alternative liability in their opposition to defendants’ summary judgment motions.” …

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

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1993 DES Case: Burgess v. Eli Lilly & Co.


… “Plaintiffs Sanda Burgess, Lillian Baker, and Deborah D. Sauer filed this personal injury action against defendant Eli Lilly and Company seeking damages for injuries allegedly resulting from exposure to its drug, Diethylstilbestrol (“DES”). Jurisdiction is premised on diversity of citizenship.

BURGESS v. ELI LILLY & CO., Leagle, 19931641995F2d646_11514, June 7, 1993.

The plaintiffs are a mother, Lillian Baker, and her daughters, Sanda Burgess and Deborah D. Sauer. The essence of the daughters’ complaint is that each suffered numerous injuries as a direct result of her mother’s having taken DES, a synthetic hormone, during her pregnancy with each child. Baker was pregnant with Burgess in 1948 and with Sauer in 1951-52. In the ensuing years, Baker experienced vaginal cysts, a uterine polyp, and a breast tumor. Neither Burgess nor Sauer ever developed mature reproductive systems.

In the late 1970’s, the plaintiffs began to explore the possibility that their various medical problems were attributable to Baker’s DES ingestion. A physician informed Sauer in 1982 that her condition could possibly be linked to in utero exposure to DES. The same physician later examined Burgess and offered the same opinion. Burgess ultimately underwent a hysterectomy in 1985, and the post-operative diagnosis indicated that her medical condition may have been caused by in utero exposure to DES. The plaintiffs filed their action in federal district court on May 30, 1986.” …

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

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1993 DES Case: Burgess v. Eli Lilly & Co.


“We answer the three questions together by responding that the provision of R.C. 2305.10 regarding the accrual date of a cause of action for DES-related injuries is unconstitutional. A cause of action based upon DES exposure accrues only when the plaintiff has been informed by competent medical authority that she has been injured by DES, or upon the date on which, by the exercise of reasonable diligence, she should have known that she has been so injured.”…

BURGESS v. ELI LILLY & CO., Leagle, 199312566OhioSt3d59_1102, February 23, 1993.

… “Simply put, the two-year statute of limitations is triggered when the plaintiff learns that she possibly has a DES-related injury.

There is more than a semantic difference between knowing that one has a DES-caused injury and knowing that one may have such an injury. A degree of certainty is missing. Knowledge of the possibility that an injury may be related to a specific cause simply does not reach the constitutionally mandated threshold granting every person a remedy in due course of law for an injury done.” …

… “DES victims are arbitrarily and unreasonably given a more restrictive statute of limitations, one unlike any other in the Ohio Revised Code. Indeed, during oral arguments, respondent’s (Eli Lilly & Company’s) attorney, who was arguing for the constitutionality of the statute, stated that he was not aware of a statute of limitations anywhere in this country which uses the “may be related” language of R.C. 2305.10. That language unreasonably requires DES victims to bring their claim based upon the mere possibility of an injury.

The DES-related provision of R.C. 2305.10 does not bear a real and substantial relation to the public health, safety, morals or general welfare. It is also unreasonable and arbitrary, and is therefore unconstitutional.” …

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

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1993 DES Case: Hartnett v. Schering Corp.


“In February 1960, Kathleen Dwyer, pregnant with the plaintiff, Mary Hartnett, received care from Dr. Milton Carvahlo, a New York obstetrician. Dr. Carvahlo, aware that Dwyer had experienced two prior miscarriages, prescribed the drug Dienestrol (DEN), as a preventative measure. DEN is a synthetic estrogen that was approved in 1950 and administered to patients with a high risk of miscarriage due to hormonal deficiency. Dwyer gave birth to Hartnett on September 29, 1960.

HARTNETT v. SCHERING CORP., Leagle, 1993922F3d90_173, August 26, 1993.

In the mid-1970’s, Dwyer learned of the dangers of Diethylo-stilbestrol (DES) through media publicity. DES is a synthetic estrogen, similar to DEN. Dwyer, unable to recall the name of the drug that had been prescribed during her pregnancy with Hartnett, became concerned. As a result, Dwyer asked two doctors, Dwyer’s present gynecologist and Hartnett’s pediatrician, whether it was possible that Dwyer had been prescribed DES during her pregnancy. The latter said it was possible and the former said it was unlikely. Neither doctor, however, had any personal knowledge of the events concerning Dwyer’s pregnancy.

Dwyer then wrote to Dr. Carvahlo’s office requesting the same information. She received a reply stating that Dr. Carvahlo had moved from the area and that her office records were unavailable. In addition, Dwyer wrote to Lourdes Hospital, where she had given birth to Hartnett. The hospital stated in response, that it found “no prescriptions for Stilbeslerol [another name for DES] while you were here in this hospital during your 1960 admission.” Dwyer made no further inquiries into the matter.

In 1982, Hartnett was hospitalized for surgery necessitated by an ectopic pregnancy. During the surgery it was necessary to remove Hartnett’s left fallopian tube and left ovary. After conducting a complete gynecological examination, Hartnett’s physician informed Hartnett that she had been exposed to DES in utero and was suffering from various “stigmas” of that condition, including an impaired ability to carry a pregnancy to term.

Following hospitalization, Hartnett discussed the matter with her mother and was informed of Dwyer’s attempts to gain information in the 1970’s. Hartnett made no further investigation into the matter, except in 1986, when Hartnett met with her attorney and discussed the possibility of contacting Dr. Carvahlo, but decided against it.

Between 1981 and 1988 Hartnett suffered two miscarriages and three premature births. In 1988, she elected to have a tubal ligation of her remaining fallopian tube.

In 1988, Mary and Joseph Hartnett initiated suit against Eli Lilly and Company, the manufacturer of DES. During discovery, Eli Lilly located and deposed Dr. Carvahlo. Eli Lilly also obtained Dwyer’s records from the hospital. Both Dr. Carvahlo’s and the Lourdes Hospital’s records revealed that Dwyer was prescribed DEN, not DES. As a result of this information, the Hartnetts dismissed their suit against Eli Lilly and initiated an action in the Northern District of New York against Schering and two other DEN manufacturers. The district court, however, dismissed the Hartnetts’ suit for lack of diversity.

The Hartnetts subsequently filed this action against Schering in the United States District Court for the District of Maryland. Upon finding that the Hartnetts failed to bring their claim within the applicable three year statute of limitations period, the district court granted summary judgment in favor of Schering. The Hartnetts now appeal.”  …

… continue reading the full paper HARTNETT v. SCHERING CORP., on Leagle.

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