1985 DES Case: Kensinger v. Abbott Laboratories

ABSTRACT

Appellant filed a complaint for damages against numerous pharmaceutical companies, some of which are respondents herein, on November 25, 1980, alleging the following causes of action: negligence; strict products liability; breach of implied warranty; breach of express warranty; and fraud. The complaint alleges that respondents manufactured, distributed and sold diethylstilbestrol, a synthetic estrogen popularly known as DES, a substance to which she was exposed in utero in late 1958 and early 1959, causing her to contract clear cell adenocarcinoma of the vagina and cervix many years later.

KENSINGER v. ABBOTT LABORATORIES, Leagle, 1985547171CalApp3d376_1515, August 22, 1985.

After undertaking extensive discovery, respondent Eli Lilly & Company (hereafter Lilly) filed a motion for summary judgment on the ground that appellant’s action was barred by the applicable statute of limitations (Code Civ. Proc., § 340, subd. (3)). The remaining respondents joined in Lilly’s motion, and moved for summary judgment on the additional ground that they did not manufacture or market the product which caused appellant’s injuries.

After a full hearing on the motions, in the course of which deposition testimony and declarations were received as evidence, the trial court ruled that the statute of limitations had run on appellant’s claim. Judgment was entered accordingly in favor of respondents, and this appeal followed. We summarize the pertinent factual background as follows.

While pregnant with appellant in 1958 and early 1959, appellant’s mother ingested DES, a drug customarily prescribed at that time to prevent miscarriages and other accidents of birth. According to the declaration of Richard R. Deardorff, the pharmacist who dispensed the drug in question, his records indicate that Lilly was the manufacturer of the DES given to appellant’s mother. Appellant was born on January 13, 1959, apparently after being exposed to the drug in utero.

Later, the efficacy of DES was questioned and a statistical association between prenatal exposure to DES and adenocarcinoma was discovered. After 1971, DES was no longer marketed as a drug to prevent pregnancy complications.

In August of 1974, after she was diagnosed as suffering from clear cell adenocarcinoma of the vagina and cervix, appellant underwent surgery and a radium implant was placed in her vagina.

At the time of her surgery and treatment in 1974, appellant was told by her doctors that the cancer was caused by her mother’s ingestion of DES during pregnancy. She believed then that DES was a “bad product.” In her declaration, appellant expressed the conclusion, reached in 1977, that “the cause of my cancer and all the things that flowed therefrom, were as a result of the fact that my mother had taken this drug during the time she was pregnant with me.”

In 1977, when appellant reached the age of majority, she felt that the discomfort she experienced during sexual relations and her inability to have children, was also “caused by DES and the cancer and the resulting surgery.” By this time, appellant also learned by overhearing a conversation between her parents that Lilly was the probable manufacturer of the DES taken by her mother. In 1977, appellant’s father was advised by a lawyer that his daughter could not successfully bring suit for her injuries.
 

In 1980, appellant was alerted to newspaper clippings which mentioned the right of DES victims to sue without identifying the particular manufacturer of the drug causing their injuries. She thereafter consulted an attorney and the instant action was filed on November 25, 1980.” 

… read the full paper KENSINGER v. ABBOTT LABORATORIES, on Leagle.

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1985 DES Case: Magallanes v. Superior Court

ABSTRACT

Petitioner Patricia Magallanes is the plaintiff in an action to recover damages for injuries she allegedly sustained, the development of cancer, by reason of her mother’s ingestion of the drug diethylstilbestrol (DES) while plaintiff was in utero. The defendants and real parties in interest (defendants) are the alleged manufacturers and distributors of a substantial share of the DES available to plaintiff’s mother at the time she ingested the substance.

MAGALLANES v. SUPERIOR COURT, Leagle, 19851045167CalApp3d878_1988, May 3, 1985.

In the first and fourth causes of action of her first amended complaint, plaintiff alleged, inter alia, that in manufacturing and distributing the DES the defendants acted with conscious disregard of the rights and safety of the general public; in her prayer she sought punitive, as well as compensatory, damages.

On August 11, 1983, the respondent trial court granted defendants’ motions to strike plaintiff’s punitive damage allegations. (Code Civ. Proc., § 436.) The court granted plaintiff leave to move to amend to allege such damages at any time more than six months prior to trial, and suggested that she conduct further discovery prior to so moving. The court ruled “that there should be identification of a particular defendant before punitive damages may be alleged.” Plaintiff’s subsequent motion for reconsideration was heard and denied.

This petition for writ of mandate seeks to compel the trial court to vacate its order of August 11, 1983, granting defendants’ motions to strike the punitive damage allegations from the first amended complaint, and to enter a new order denying the motions to strike. We issued an alternative writ of mandate.

Plaintiff contends “that under established California law, and under the persuasive reasoning” of Morris v. Parke, Davis & Co., “punitive damages may be awarded in a `market share’ action” brought pursuant to Sindell.

Defendants challenge the timeliness of the petition, the sufficiency of petitioner’s allegations of malice, and the persuasiveness of the decision in Morris, and controvert plaintiff’s contention that punitive damages can be awarded in a Sindell type market share action.” 

… read the full paper MAGALLANES v. SUPERIOR COURT, on Leagle.

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1985 DES Case: McCormack v. Abbott Laboratories

Abstract

…”By way of procedural history, plaintiff’s case was originally consolidated with the case of Payton v. Abbott Laboratories, Civil Action No. 76-1514-S. A class was certified and plaintiff opted to become a member of the class. On December 6, 1983, Judge Skinner decertified the class and plaintiff now prosecutes her action individually.” …

Market-Share Liability in Massachusetts

Accordingly, the court holds that a plaintiff who can not meet the traditional identification requirement may avail herself of a market-share theory of liability by alleging the following elements:

  • that plaintiff’s mother ingested DES during the pregnancy which resulted in plaintiff’s birth;
  • that DES caused plaintiff’s subsequent injuries;
  • that the defendant or defendants produced or marketed the type of DES taken by plaintiff’s mother;
  • and that the defendant or defendants acted negligently in producing or marketing the DES.

Plaintiff must prove each of these elements by a preponderance of the evidence. Note well: plaintiff need not allege or prove that a defendant produced or marketed the particular DES that caused her subsequent injuries. Plaintiff must only establish that a defendant produced or marketed the type of DES, as distinguished by color, shape, size or markings, ingested by plaintiff’s mother.

McCORMACK v. ABBOTT LABORATORIES, Leagle, 19852138617FSupp1521_11883, September 30, 1985.

Individual defendants may exculpate themselves from liability by proving by a preponderance of the evidence that they did not produce or market the particular type of DES taken by plaintiff’s mother; or that they did not market DES in the relevant geographic market area; or that they did not distribute the drug during the time period of plaintiff’s mother’s pregnancy.

Defendants who are unable to establish that the DES they produced or marketed could not have been ingested by plaintiff’s mother will become part of the DES market as narrowed and defined on a case-by-case basis by the specificity of the evidence as to geographic market area, time of ingestion, and physical characteristics of the subject DES. The court follows the approach taken by the court in Martin v. Abbott Laboratories, 1984, for apportioning liability among remaining defendants. Such defendants are presumed initially to have equal shares of the market. However, defendants may rebut this presumption by establishing by a preponderance of the evidence their individual market share of DES in the plaintiff’s particular geographic market during the time period in question. Upon proof of an actual market share, a defendant will only be liable for the portion of the total judgment represented by such share. Of course, other defendants who fail to prove an actual market share will be liable equally for the remaining market. On the other hand, where all defendants successfully establish a reduced actual market share, the portion of the judgment representing the remaining unclaimed share of the market may not be recovered by the plaintiff. The rationale is that unnamed defendants are responsible for the remaining DES distributed in the relevant market and the named defendants should not be held to answer for the negligence of others. Defendants raise several arguments against adoption of such a market-share theory of liability and the court will address them separately.

First, defendants contend that apportionment of liability on this basis violates the letter and spirit of the Payton decision, where the Supreme Judicial Court expressed concern about protecting tortfeasors from liability exceeding their responsibility. However, under the market-share theory set forth in this memorandum of decision, disproportion between potential liability and actual responsibility is significantly reduced. Where each defendant carries its burden of proof with respect to actual market share, no defendant will be held liable in negligence for more harm than it statistically could have caused in the relevant market. Furthermore, the opportunity to present exculpatory evidence reduces the risk of imposing liability on innocent actors. It is conceded that in some situations a defendant will be held liable to a particular plaintiff whose injury it did not actually cause. However, under a market-share theory, a plaintiff must first prove that a defendant acted tortiously before any liability may be imposed. Consequently, a defendant who erroneously is held liable to a particular plaintiff can not be considered wholly innocent of wrongdoing. Such defendant, by engaging in the conduct found to be negligent, contributed to the risk of injury to the public in general and consequently shares some degree of culpability in producing or marketing DES.

Defendants also object to the allocation of the burdens of proof as inequitable and impractical, arguing that plaintiffs, rather than defendant drug companies, have superior access to identification information and that, therefore, defendants should not have the burden of exculpating themselves. This argument, however, proves too much. The fundamental premise of the market-share theory of liability is that the plaintiff lacks sufficient identification information to make out a prima facie case of negligence under traditional principles of tort liability. The absence of such information is largely attributable to the substantial delay in the drug’s effects and the consequent loss of evidence, and the generic marketing methods employed by drug companies to promote and distribute DES. Furthermore, any evidence the plaintiff might possess or have access to concerning the type of DES taken by her mother, the relevant time period, and the place of ingestion is readily obtainable under modern discovery procedures. This is particularly true in the instant case where the defendants have the resources and investigative personnel to pursue all discovery devices. Defendants maintain that the market-share theory of liability will encourage manufacturers who have difficulty proving market share, to implead all other manufacturers since additional defendants will reduce the size of the pro rata share. The experience of courts in other DES cases, however, belies defendants’ apprehension. In fact, the Payton court observed, “in the typical situation, the inquiry narrows down to one or two drug stores and pills that are differentiated in size, shape and color.” Certainly, such evidence is sufficiently specific to enable the majority of DES manufacturers to extricate themselves from the case at the very outset. It would make little sense, then, for a defendant to randomly implead other manufacturers.

Defendants further contend that adoption of a market-share theory of liability by this court would run counter to the important public policy favoring the development and marketing of new drugs cited by the Massachusetts Supreme Judicial Court in Payton. The court disagrees. Imposition of market-share liability for defects or inadequate testing or warnings will likely provide an incentive to product safety. . In addition, the market-share theory would encourage manufacturers to either make their products identifiable or to improve their record-keeping procedures when marketing generic products, in order to avoid market-share liability in the future. “DES and a Proposed Theory of Enterprise Liability“. These considerations are particularly significant where medication is involved. The consumer is virtually helpless to protect herself from serious, sometimes permanent injuries caused by defective drugs.

Finally, defendants urge the court to require DES plaintiffs to make a showing of “due diligence” before they may employ a market-share theory of liability. Specifically, defendants argue that plaintiff should be required to allege that she has made a good faith effort to identify the particular manufacturer of the DES which caused her injuries, and that, through no fault of her own, she has been unable to do so. This requirement appears to have originated in Abel v. Eli Lilly & Co. Defendants contend that without such a requirement, a plaintiff can employ a market-share theory of liability when she discovers that the actual manufacturer is either no longer solvent or in existence.

After carefully considering the effectiveness of a due diligence requirement as a safeguard against abuse by plaintiffs of the market-share theory of liability, the court is persuaded that countervailing considerations mandate rejection of the requirement. First, as noted ante, any identification information in plaintiff’s possession will be available to defendants through discovery. Defendants argue that initially the plaintiff, rather than defendants, will have access to specific information regarding any DES ingested by her mother. Hence, it is argued, plaintiff should be required to show that she has not contributed to the lack of identification evidence by failing to investigate the facts or delaying the filing of her claim. But this argument ignores the fact that identification evidence, under any theory of liability, facilitates the plaintiff’s proof of her claim as much as it does the defendants’ proof of a defense. Plaintiffs have little incentive to conceal identification information. To the extent that they can identify a particular manufacturer, they can employ traditional principles of tort liability which provide, upon proof of the claim, for a 100% recovery of the judgment, as well as a simpler, less conjectural remedy probably more appealing to the average juror. In contrast, market-share liability may result in plaintiffs’ only recovering a portion of the judgment, thereby providing incentive to discover the identity of the actual manufacturer. While the court recognizes the potential for abuse, that is not a sufficiently compelling reason for wholesale adoption of a due diligence requirement. In the court’s opinion, normal discovery procedures will prove effective, in most cases, in weeding out wholly unfounded claims.

Furthermore, several considerations strongly counsel against imposing on plaintiffs a requirement of alleging due diligence. First, there may be situations where a plaintiff, confronted with estrangement from her family or the death of her mother, will be unable to satisfy a court that she has genuinely attempted to locate the manufacturer. The due diligence requirement assumes a relationship of confidence between the plaintiff and her mother which may not exist in many cases. A plaintiff may be in no better position than a defendant to discover individualized identification evidence. While a court undertaking a due diligence inquiry would weigh such factors on a case-by-case basis, we decline to impose a requirement that would, in many situations lead to empty allegations by plaintiffs and time-consuming, often fruitless inquiries by courts.

Lastly, the due diligence requirement is fundamentally at odds with the concept of market-share liability. The market-share theory is premised on the inability of a plaintiff to identify the manufacturer that caused her injury. Requiring a plaintiff to allege and prove due diligence is, in essence, requiring her to explain what already can be presumed: the plaintiff has no cause of action under traditional standards of liability. Defendants assert that elimination of the requirement will encourage plaintiffs to delay prosecution of their claims until identification evidence is lost. However, the market-share theory relieves plaintiffs only of the burden of proving causation in fact. Thus, the evidence which defendants fear will be negligently lost or purposely concealed, will often be plaintiffs’ only evidence of proximate cause and damage. Therefore, plaintiffs have as much incentive to protect such evidence as do defendants. In the court’s view, relevant statutes of limitations can address adequately the problem of unreasonable delay in the prosecution of claims. More importantly, however, the market-share theory adapts the rules of causation and liability to meet the changing needs of product liability litigation. It seems inappropriate, then, to require every plaintiff in every DES case, effectively to prove to the court that prior doctrine will not suffice to govern the obligations of manufacturer to consumer. ” 

… read the full paper McCORMACK v. ABBOTT LABORATORIES, on Leagle.

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1985 DES Case: Murphy v. E.R. Squibb & Sons, Inc.

Abstract

We consider issues relating to the liability of a manufacturer and a pharmacy for the production and sale of an allegedly defective drug, stilbestrol (DES). We will decide whether a pharmacy at which the drug was purchased may be held strictly liable for alleged defects in the product (as distinguished from ordinary negligence), and whether a manufacturer which sold 10 percent of DES nationwide may be found to have had a “substantial” share of the market for the purpose of applying the “market share” doctrine enunciated in Sindell v. Abbott Laboratories (1980).

MURPHY v. E.R. SQUIBB & SONS, INC., Leagle, 198571240Cal3d672_1674, December 30, 1985.

Plaintiff filed an action for personal injuries allegedly resulting from DES taken by her mother in 1951 and 1952 during pregnancy for the purpose of reducing the risk of miscarriage. The complaint sought damages on the theory of strict liability, alleging that the drug was defectively designed, with the result that plaintiff developed clear cell adenocarcinoma at the age of 23. As defendants, plaintiff joined Exclusive Prescription Pharmacy Corporation (Exclusive) where plaintiff’s mother purchased the DES, and E.R. Squibb & Sons, Inc. (Squibb). The first cause of action alleged that Squibb was the manufacturer of the DES used by plaintiff’s mother. The second count, added after our decision in Sindell, alleged that plaintiff was unable to identify the manufacturer, but that Squibb supplied a “substantial percentage” of DES for use by pregnant women to prevent miscarriage.

Before jury selection began, the court granted Exclusive’s motion for judgment on the pleadings, holding that a pharmacy may not be held strictly liable for dispensing a prescription drug. The court determined that Exclusive rendered a professional service in supplying the DES, that the consumer of the drug was the doctor who prescribed it rather than plaintiff’s mother, and that as a matter of policy the doctrine of strict liability should not be extended to a pharmacy.

In support of her second cause of action plaintiff offered to prove that Squibb sold 10 percent of the DES in the national market. The court ruled that as a matter of law 10 percent of the national market was not a “substantial percentage” within the meaning of Sindell, and it dismissed the second cause of action. The matter went to trial against Squibb on the first cause of action alleging that Squibb had actually supplied the DES taken by plaintiff’s mother. The parties introduced evidence on whether Squibb was the manufacturer of the offending drug, and the trial court instructed the jury that plaintiff had the burden of proof on this issue. The jury returned a special verdict, finding that plaintiff’s mother had purchased the DES at Exclusive, and that the DES which she purchased was not manufactured by Squibb. The trial court entered judgment in favor of defendants, and plaintiff appeals.” …

… read the full paper MURPHY v. E.R. SQUIBB & SONS, INC., on Leagle.

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1985 DES Case: Schaeffer v. Eli Lilly & Co.

Abstract

Order modified, on the law, by granting plaintiff’s motion only to the extent of the following:

SCHAEFFER v. ELI LILLY & CO., Leagle, 1985940113AD2d827_1748, September 16, 1985.

ORDERED, that plaintiff shall have summary judgment with respect to the following issues:

  • That Diethylstilbestrol (DES) was not reasonably safe in the treatment of accidents of pregnancy (miscarriages) when it was allegedly ingested by plaintiff’s mother in 1954;
  • That in 1954 when plaintiff’s mother allegedly ingested DES, the defendant as a reasonably prudent drug manufacturer should have foreseen that DES might cause cancer in the offspring of pregnant women who ingested the drug;
  • Foreseeing that DES might cause cancer in the offspring of pregnant women who took it, a reasonably prudent drug manufacturer would have tested it on pregnant mice before marketing it;
  • Had the defendant tested DES on pregnant mice before marketing it, it would have shown that DES causes cancer in offspring;
  • That a reasonably prudent drug manufacturer would not have marketed DES for use in treating accidents of pregnancy in 1954 if it had known that DES causes cancer in the offspring of pregnant mice.

As so modified, order affirmed, without costs or disbursements.

The appeal is here because Special Term granted plaintiff’s motion for partial summary judgment, invoking third-party issue preclusion to bar defendant from relitigating various liability issues that were determined in an earlier DES action entitled Bichler v Lilly & Co.  Special Term’s order precluded the defendant from relitigating its liability for marketing DES for use in preventing miscarriages without adequate testing.” …

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

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1984 DES Case: Abel v. Eli Lilly & Co.

This case is but one of many filed in state and federal courts by daughters of women who had taken DES during pregnancy and their spouses against the manufacturers of synthetic estrogen products. …

…  Although each case presents its own factual nuances, one common problem continually reappears: many of the plaintiffs are simply unable to identify the manufacturer of the estrogen product to which they were exposed. The plaintiffs therefore seek some way to circumvent the traditional tort element of causation in fact.

ABEL v. ELI LILLY & CO., Leagle, 1984729418Mich311_1717, October 1, 1984.

In order to bypass the identification requirement, plaintiffs assert that defendants (who are purportedly all the manufacturers of synthetic estrogens for pregnancy use in Michigan) are jointly and severally liable. Several theories have been advanced to justify this joint liability including alternative liability, concert of action, and what is referred to as “collective” or “industry-wide” liability.

Defendants jointly sought partial summary judgment pursuant to GCR 1963, 117.2(1) against all plaintiffs who were unable to identify the manufacturer of the prescription drug allegedly responsible for their injuries. The trial judge denied this motion, without prejudice, and ordered further discovery on “the alleged joint or enterprise liability and conspiracy of all defendants”.

After approximately two years of discovery, the defendants again moved jointly for partial summary judgment on the basis of GCR 1963, 117.2(1) and (3). Finding that the plaintiffs had indeed failed to state a cause of action, the trial judge granted summary judgment in favor of defendants and against those plaintiffs who were unable to identify the manufacturer of the drug which allegedly caused their injury. Also, with regard to those plaintiffs able to identify the manufacturer, the court dismissed all other defendants.

On appeal, the Court of Appeals reversed the summary judgment, finding that the plaintiffs had made sufficient allegations to support the alternative liability and concert of action theories. Abel v Eli Lilly & Co . The Court of Appeals reviewed only the defendants’ GCR 1963, 117.2(1) claims (failure to state a cause of action); the GCR 1963, 117.2(3) issues (no genuine issue of material fact) were not addressed.

We are called upon today to review the correctness of these rulings. We hold that the plaintiffs have made sufficient allegations to support both the concert of action and alternative liability causes of action. ” …

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

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1984 DES Case: Collins v. Eli Lilly & Co.

This is an appeal from a judgment and an order of the circuit court for Milwaukee county, Judge Marvin C. Holz, granting summary judgment for the defendant drug companies and denying the plaintiff’s motion to amend her second amended complaint to identify as a sole defendant Eli Lilly and Company. The plaintiff appealed and petitioned to bypass the court of appeals pursuant to sec. 808.05 and sec. (Rule) 809.60, Stats. We granted the petition to bypass. We reverse in part and affirm in part the judgment of the trial court granting summary judgment for the defendants, and we remand the case for further proceedings. We affirm the order of the trial court denying the plaintiff’s motion to amend her second amended complaint.

COLLINS v. ELI LILLY CO., Leagle, 1984282116Wis2d166_1274, January 4, 1984.

The issues presented on appeal are whether the trial court erred in granting summary judgment for the defendants based upon its conclusion that no Wisconsin rule of law would permit the plaintiff to recover for her injuries stemming from her mother’s ingestion of the drug diethylstilbestrol (DES), and whether the trial court erred in not permitting the plaintiff to amend her second amended complaint to name a single drug company, Eli Lilly and Company, as defendant.

In 1957 Mrs. Roseann Collins became pregnant with Therese Marie Collins, the plaintiff in this case. Because Mrs. Collins was having problems with spotting in the early stages of her pregnancy, she consulted her physician, Dr. William P. Wendt. Sometime in the course of his treatment of Mrs. Collins, Dr. Wendt prescribed DES, which he told her would prevent a miscarriage. Mrs. Collins took DES throughout her pregnancy. Mrs. Collins could not recall where she purchased the DES but did recall, without being certain, that “it was a little white [uncoated] pill … smaller than an aspirin.” Information adduced in the course of discovery revealed that the DES Mrs. Collins took was in the form of 25 milligram pills. The plaintiff was born March 11, 1958, in Milwaukee.

In June or July, 1975, the plaintiff began to experience longer than normal menstrual periods accompanied by severe cramping. On July 24, 1975, Mrs. Collins took the plaintiff to consult Dr. Wendt. During the examination Dr. Wendt discovered a visible lesion in the plaintiff’s vagina. Dr. Wendt referred the plaintiff to Dr. William Fetherston for further diagnosis. After examining the plaintiff, Dr. Fetherston concluded that she was suffering from a full cell cancer of the vagina. On August 26, 1975, Dr. Fetherston performed surgery on the plaintiff, removing her uterus, part of her vagina, and a number of lymph nodes. Subsequent analysis by Dr. David Carlson, a pathologist at St. Mary’s Hospital in Milwaukee, confirmed that the plaintiff had adenocarcinoma of the vagina and benign adenosis of the vagina. Subsequent to the surgery, the plaintiff discovered that her bladder had ceased functioning because of the radical cancer surgery.

On January 6, 1977, the plaintiff filed suit against twelve drug companies which allegedly produced or marketed DES. On November 21, 1977, Judge William R. Moser granted defendants Lilly, Rexall, Squibb, and Abbott’s motion to dismiss on the grounds of improper service. On February 28, 1978, the plaintiff filed a second amended complaint, naming five additional drug companies as defendants, and this time effectuated proper service on all defendants.

The plaintiff’s second amended complaint alleged five causes of action: that the defendants were negligent in producing and marketing DES for use by pregnant women; that the defendants were strictly liable because DES was a defective and unreasonably dangerous product; that the defendants misrepresented that DES was safe and efficacious for use by pregnant women; that the defendants conspired to misrepresent that DES was safe and efficacious for use by pregnant women; that the defendants acted as a class in manufacturing and marketing DES. The plaintiff demanded $3 million in compensatory damages, together with $3 million in punitive damages.

On May 26, 1981, the defendants jointly moved the court, pursuant to sec. 802.08, Stats., for summary judgment in their favor alleging that there was no genuine issue as to any material fact and that Wisconsin law provided no remedy for the plaintiff based upon the factual record. The defendants also individually moved for summary judgment, variously alleging that the statute of limitations barred recovery, that the defendant drug company had not manufactured or marketed DES in the relevant form, time period, or geographical area, or that the plaintiff’s theory of recovery was not recognized under current law.

On April 23, 1982, Judge Marvin C. Holz rendered a memorandum decision on the defendants’ joint summary judgment motion. The court granted the motion for summary judgment after examining various theories proposed by the plaintiff to avoid the problem of the plaintiff’s inability to identify which defendant drug company produced or marketed the DES taken by her mother. The court concluded that all the theories would necessitate a radical departure from current law, and that if such a departure were appropriate, it should be decided by this court. Accordingly, on September 16, 1982, the trial court entered judgment dismissing the plaintiff’s second amended complaint.

On May 20, 1982, the plaintiff filed a motion requesting permission to amend her second amended complaint if she did not appeal from the summary judgment decision of April 23, 1982, or if she appealed and the summary judgment was affirmed. The plaintiff wanted to amend her second amended complaint to name Eli Lilly as the sole defendant on the grounds that there was a reasonable probability that it manufactured the DES taken by the plaintiff’s mother. In a memorandum decision dated August 9, 1982, the trial court concluded that the requested amendment was not appropriate because the plaintiff was not alleging any new facts which would support her recently asserted allegation that one drug company manufactured DES. The trial court entered an order denying the plaintiff’s motion to amend on August 23, 1982. The plaintiff filed an appeal from the judgment entered September 16, 1982, and the order entered August 23, 1982.

The problem facing Therese Collins, who alleges injury by in utero exposure to DES, is that she is unable to identify the precise producer or marketer of the DES taken by her mother due to the generic status of some DES, the number of producers or marketers, the lack of pertinent records, and the passage of time. Several courts have applied existing theories of law or crafted new theories to permit DES plaintiffs to avoid the almost insurmountable obstacle of proving that a particular drug company produced or marketed the DES which caused them injury Other courts have simply denied DES plaintiffs recovery because existing tort law requires plaintiffs to prove that a particular defendant caused the plaintiffs’ harm In determining our approach to this problem, it is appropriate to set forth the factual background against which the issues in this case must be analyzed. ” …

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

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Fear of Disease and Delayed Manifestation of Injuries

INTRODUCTION

The fear of disease, sometimes called hypochondria, has long been recognized as a medical problem, but seldom as a legal one. Its costs, therefore, have been borne by its victims and their insurance companies. Although such fears have traditionally been dismissed as groundless, the great strides made recently in the medical profession’s ability to connect environmental exposure with disease are beginning to change this view. They are also causing a shift in the view of who should bear the costs of such fears. Increasingly plaintiffs are claiming that the entities responsible for their exposure to disease-causing agents should compensate them for their concern about the possibility of developing the disease. Courts have so far been unwilling to recognize suits for the increased chance of developing a delayed-manifestation disease. An increasing number, however, are recognizing the right to sue for the fear of disease development due to that increased chance and for medical monitoring necessary to check for that development. The recent expansion of emotional distress theories and the concomitant easing of restrictions is likely to facilitate this trend. Compensation for delayed disease-caused emotional distress may even provide the only recovery possible for thousands of people who have been exposed to toxic substances but whose diseases will not become manifest until after statutory limitations have run. Such recovery may also provide one way to ease the future claims problems raised by bankruptcy and reorganization filings, and post-insurance coverage of liabilities. Societal costs of open recognition of such claims, however, are likely to outweigh these benefits. This Article discusses the history of disease phobia recovery, the recent expansions of emotional distress theories, and how they are likely to be combined in the toxic tort area.

I. EMOTIONAL DISTRESS CLAIMS

Fear of Disease and Delayed Manifestation of Injuries: A Solution or a Pandora ‘s Box?, Fordham Law Review, Volume 53 | Issue 3 Article 5, 1984.

Common law has long recognized a right to recover for emotional distress. The tort of assault, which developed as a form of trespass, was recognized as early as the thirteenth century. This cause of action was probably originally created to deal with actions that could lead to a breach of the peace, rather than to compensate for the emotional distress that was caused by the defendant’s act. Nevertheless, compensation went to the victim primarily for the emotional harm suffered. In the early courts the amount of that compensation was determined by reference to a predetermined schedule of payments based on the kind of injury that was inflicted.

Compensation for emotional distress was also awarded early in the common law when that distress arose from an action such as battery or other nonemotional injury.  These damages were parasitic, and could not be recovered without a finding that the defendant was liable to the plaintiff for the primary injury to which the emotional claim was attached.

The practice of having unscheduled damages determined by the tribunal grew along with the development of the common law of trespass The jury was eventually allowed to set the amount of compensation because it was familiar with local economic values.  Inclusion of damages for pain and suffering naturally accompanying the plaintiff’s injury became part of the jury’s assessment of damages.

Unlike property damage or other types of injuries which could be measured by recognized economic yardsticks, emotional injuries had no reference to any market value scale. They were highly subjective and speculative, and as such were not truly compensatory. As a result they were viewed with suspicion, and control of such damages became a judicial concern. The judge served as a check on the jury’s discretion, with the power to change awards when he deemed the amount to be out of line. Thus judicial concern with control of emotional injury awards has a long history.

Additional checks helped control tort recovery for emotional suffering. In assault, for example, the requirement that the threat be imminent limits the number of suits that can be based on apprehension of threatened harm, and severely limits the time period for which the distress can be claimed. Even stricter controls were built into the primary emotional injury torts which developed later.

No cause of action for emotional distress independent of assault or another tort was recognized until this century. Part of the reluctance to grant such an action was based on the lack of guidelines for the jury to follow in assessing damages for an injury that had no inherent monetary value, was not overt, and was subject to great individual variation. Probably the biggest obstacle, however, was the fear of fraudulent claims and frivolous lawsuits. In response to these reservations, the courts that allowed actions for emotional distress severely restricted the kinds of actions that could support such claims as well as the persons who could claim injury.

Intentional infliction of emotional distress as an independent cause of action was contained by requiring proof of extreme and outrageous conduct resulting in serious emotional distress, which usually had to manifest itself in a physical illness. Mere insults or other annoying behavior were not to be compensated. The outrageousness could arise from either the nature of the conduct itself, or abuse of a special position or knowledge. If the defendant’s action was truly outrageous, the certainty of resulting emotional distress was assumed to be sufficiently clear to allow recovery. In addition, such actions were clearly worthy of legal deterrence. The allowance of such claims also reflected the scientific and legal communities’ growing understanding of emotional injury.

Recognition of the tort of negligent infliction of emotional distress has occurred more slowly. Voicing the same objections about fraudulent and frivolous suits and a flood of litigation, the courts have been even more reluctant to recognize this cause of action. Defendant’s actions, being merely unreasonable, are not as good an indicator of the certainty and severity of resulting distress as are intentional acts. Thus, in order to maintain control, courts usually refused to grant recovery in negligent infliction of emotional distress cases unless the plaintiffs could demonstrate some physical impact from the tort and a physical manifestation of the emotional distress. When third parties were later allowed to sue for emotional distress resulting from witnessing the defendant injuring another person, the impact and physical manifestation requirements, as well as the requirement of close familial relationship, served the same screening purposes.

A. Recent Developments in Infliction of Emotional Distress

Although some courts still cling to these early restrictions, the trend has been toward liberality in construction, or elimination of these limitations to allow wider recovery in emotional distress cases. In intentional infliction cases, for example, the class of actions that are considered to be outrageous has been expanded. As in punitive damages cases, judges and juries in emotional injury cases now find it relatively easy to be out raged by defendant’s actions.

Another trend has been to abandon the requirement of contemporaneous physical injury or impact in both intentional and negligent infliction cases.  In these cases, physical manifestation of the emotional distress has become the primary screening device. Some courts have gone even further by abandoning the physical manifestation requirement and using the seriousness of the distress as the screen. These trends have been well documented in both cases and law review articles. In substituting these requirements, courts recognize the progress in knowledge about mental distress and its etiology, diagnosis and proof. Even in these later cases, however, control of emotional distress suits continues to be a concern.

In Molien v. Kaiser Foundation Hospitals, for example, the California Supreme Court broke with precedent and found that physical manifestation of the emotional distress was no longer necessary in a negligent infliction case. Plaintiff Molien’s wife was misdiagnosed by her doctor as having syphilis, and Molien was emotionally injured by this news and the resultant marital discord. The court found the touchstone to be the severity of emotional injury, not physical manifestation, because the state of the art was such that emotional injury could be established with medical certainty and causally linked to the shocking experience. The requirement that the emotional injury be serious was found to be a sufficient screen against fraudulent claims, unlimited liability and a flood of litigation. The court found that the former screening device of physical injury, which had ensured authenticity and seriousness, was both over- and under-inclusive, and could lead to extravagant pleading and distorted testimony. Other courts have followed California’s lead in substituting seriousness for physical manifestation as the screening device.

Suits by third parties who witness harm to another and thereby suffer emotional distress have probably shown the most change and growth in recent years. The case that firmly established the right of a bystander to recover for emotional harm resulting from negligent injury to another was the 1968 California case Dillon v. Legg. In that case a mother was allowed to sue for the emotional distress resulting from seeing her child injured, despite the fact that she was not in the zone of danger and was not physically injured. In order to control subsequent third-party cases, the court stressed that proximity, contemporaneous observance and close relationship must be shown if the plaintiff is to recover. Again, other states followed California’s lead in allowing such suits. The three screening factors, which were meant to be guidelines to foreseeability in determining who should be allowed to sue, became rigid requirements in an effort to keep such cases under control. Such rigidity led to fine hairsplitting and denial of recovery in some compelling cases. This in turn has led to the liberalization of these requirements in some of the subsequent cases.

In Haught v. Maceluch, for example, plaintiff’s daughter was injured during birth by the negligence of the obstetrician. Plaintiff successfully sued for the mental suffering she incurred because of her daughter’s condition, but the award was deleted by the district court because the mother did not meet one of the the three bystander criteria: She was under anesthesia during the birth and therefore did not witness the accident. The Fifth Circuit reversed, finding that Texas law would allow recovery. The court found that the mother was not only at the scene of the accident, but that in some sense she was the scene; because the accident happened before parturition, the relationship could not have been closer. The strength of these two factors was sufficient for recovery because the court found that Texas law did not require all three Dillon elements. However, the court went on to find that although plaintiff did not perceive the injury, she did have an experiential perception of the accident because of the protracted and difficult labor experienced before she was anesthetized.

Many courts that have followed the Dillon precedent have adopted an additional screening device. These courts, like the Molien court, require the mental distress to be serious. Serious mental distress is that which “a reasonable [person] normally constituted, would be unable to adequately cope with” in light of the circumstances of the event. Thus, a standard reminiscent of the outrageousness requirement in intentional infliction cases is used to keep control over negligent emotional distress suits. The especially sensitive person is still not to be accorded recovery for his or her pure mental distress.

B. Recent Developments in Other Distress Claims

The broader acceptance of emotional distress as a legitimate injury, and the willingness of courts to accept proof of it unrelated to physical injury or impact, is demonstrated by the awards for parasitic emotional distress which are being made in a wide variety of cases in which they were previously denied or only infrequently given. In Simon v. Solomon,  for example, a tenant was awarded $35,000 for the emotional distress of having her apartment flooded with sewage thirty times. This case marked the first time that a state supreme court upheld emotional distress damages against a landlord. Emotional damages were also awarded for the first time in a first amendent case in Abramson v. Anderson. Abramson, a high school teacher, was awarded $300 for the mental distress he suffered from being exposed to prayers in two school holiday assemblies.

Another area in which emotional distress claims have recently been recognized is in suits for the “wrongful birth” of a child. An increasing number of courts are allowing parents to recover against physicians for the mental anguish of having a healthy but unwanted child because sterilization procedures were negligently performed, or for the anguish of having a defective child because genetic counseling was faulty or absent. Although courts usually do not allow the child to recover for its own wrongful life because of the difficulties in determining the value of being born with handicaps versus not being born at all, they are no longer deterred from allowing parental recovery for the intangible emotional distress.

Courts are also increasingly interpreting statutes to encompass damages for emotional distress. The Fifth Circuit incorporated emotional damages into the Texas Deceptive Trade Practices Act in a case in which a sixty year old woman was traumatized by a burglar when her home security system failed. The woman recovered for her past and future mental anguish which resulted from the defendant home security company’s misleading representations about its system. The Deceptive Trade Practices Act under which she sued provided for recovery of actual damages; the court interpreted this to mean common law damages. Because the woman’s emotional injury had manifested itself in physical symptoms, she met the Texas common law requirement for a mental anguish award and therefore could recover under the statute.

In Young v. Bank of America National Trust & Savings Association the California Court of Appeal allowed a consumer to recover treble damages under the Song-Beverly Credit Card Act for the emotional distress she suffered after the bank refused to remove charges from her account. Plaintiff had loaned her BankAmericard Visa to a friend so that he could buy a one-way ticket to Hawaii. He did not return the card, and two days after lending it she reported it stolen. When the bank recovered the card four months later, there were $2,200 in charges, which the bank continued to charge to plaintiff. Despite the fact that the charges were disputed, the bank informed a credit reporting service that plaintiff’s account was over its limit and past due. She was subsequently denied credit. The court found that plaintiff’s feelings of distress and frustration over several months justified the jury’s award of $50,000 against the bank’s “computer-hearted insensitivity.” Again, these cases present just a few examples of the emotional recovery expansion in the statutory area. That expansion has even longer roots in the liberal interpretations of the state workers’ compensation statutes.

Last term, however, the United States Supreme Court refused to allow emotional impact to play a determinative role in interpreting an environmental impact statute. The decision reversed the ruling of the District of Columbia Circuit Court, which had held that under the National Environmental Policy Act (NEPA), which requires federal agencies to consider the environmental impact of major federal actions that have a significant effect on the human environment, the agency must consider the degree to which the proposed action affects public health and safety. Plaintiffs alleged that the start-up of the Three Mile Island reactor would create the risk of an accident, which caused them to fear that risk. The circuit court found that the psychological effect of this fear, or the impact on the psychological health of nearby residents, was part of the public’s health and safety, and had to be considered by the Nuclear Regulatory Commission before deciding whether to permit resumption of operation of the nuclear power plant. Although mere dissatisfaction engendered by political disagreements or economic or social concerns were not to be considered, the inquiry was to include genuine post-traumatic fears that engendered fears of recurring catastrophe and that were accompanied by physical effects.

The Supreme Court, in an unanimous opinion, held that the Commission was only required to assess the impact on the physical environment. Although recognizing that psychological health could be considered under NEPA, it found that such consideration was not warranted in this case because there was too tenuous a connection between the change in the environment and the alleged psychological harm. In rejecting the emotional impact claim, the Court cited reasons reminiscent of earlier courts’ objections to emotional distress claims: the fear of fraudulent or frivolous claims and the potential impact on decisionmaking resources if such considerations were allowed. The Court warned that if the circuit court’s ruling were upheld, agencies could be forced “to expend considerable resources developing psychiatric expertise” and that their resources may be spread so thin the agency could not do its job.  In addition, it would be difficult for the agency to differentiate between genuine psychological claims and other objections based on political differences. Thus, with somewhat tortured logic the Court found that although NEPA “was enacted to require agencies to assess the future effects of future actions,” the effects of the risk of accident could only be considered in regard to the physical environment.

The Court recognized that a risk, which “is a pervasive element of modem life” often created by modem technology, can generate stress which in turn can cause serious health damage. Although stating that the balance to be struck between the risks of technology and its gain is an important policy issue, it was not one the Court chose to tackle in this politically charged context.  Allowing anxiety about future risks in the context of agency decision making apparently was viewed by the Court as opening a Pandora’s box of emotional impact claims.

In refusing to recognize fear of future risks in the environmental context, the Court overlooked a long line of precedent that allowed fear of risks to be considered in civil damage suits. The result, however, does coincide with several recent decisions by lower courts in fear of disease cases. Unlike emotional distress damages in general, recovery for distress caused by the fear of disease has been approached with extreme caution in recent toxic tort cases.

IL DAMAGES FOR FEAR OF DISEASE

Fear of disease that arises from an injury caused by defendant’s wrongful act was traditionally considered to be part of or akin to pain and suffering damages commonly awarded. By the 1920’s several states had recognized parasitic damages for fear of disease or injury arising from, but different than, the original bodily injury. The overwhelming majority of these early cases involved fears that were necessarily short-lived. The most prevalent claim, for example, involved fear of hydrophobia or rabies from dog bites. Because the period during which rabies can develop after being bitten is no longer than a year, plaintiff’s fears about its development could not realistically last longer than this period., As in other emotional distress cases, courts denied recovery to plaintiffs whose fears of future disease were not grounded on sound probability; therefore, fears lasting longer than the incubation period were not compensated.

Other common claims were for fear of lockjaw, blood poisoning and miscarriage. Realistic fears of these diseases would also be of limited duration. Although some of the later cases were based on fears of different diseases or injuries, most of them also contained inherent time limitations. The courts were not particularly concerned with control of this form of emotional damage. The fear arose from physical injury, which was easily verified and, the plaintiff was not compensated for it unless the fear was deemed to be founded on sound probability and of limited duration. Thus, worry about fraudulent and spurious claims and a flood of litigation was not an important issue.

This is in sharp contrast to the law regarding claims for emotional distress unaccompanied by serious physical injury, which was developing at the same time. As discussed previously, concern about fraudulent and frivolous suits was pre-eminent, and recovery could be had only in the most egregious or clear cut cases.

Although a few early decisions recognized the right to recover for fear of an injury that did not contain inherent time limitations, it was not until the middle of this century that suits for fear of diseases such as cancer, which have no specific development or termination date, became more commonplace. One of the earliest cases to allow recovery for a fear of an “unlimited” disease was the 1912 case of Alley v. Charlotte Pipe & Foundry Co. Plaintiff Alley was seriously burned when a negligently made core exploded. A physician was allowed to testify that the resulting wound was “liable” to lead to an “eating cancer” or sarcoma. The court equated “liable” with “probable,” and held that the testimony was adequate to corroborate plaintiff’s mental suffering. It found that the probability of cancer “must necessarily have a most depressing effect” because, like the sword of Damocles, plaintiff knows not when it will fall. The practice of having a physician’s testimony corroborate the possibility of development of the feared disease to prove the reasonableness of the fear was followed in later cases. Fear of unlikely developments, especially in this kind of case, was not compensated.

Although the Alley court expressed some sympathy for Alley’s apprehensions, thirty years elapsed before appellate courts again dealt with a similar issue. The 1958 case of Ferrara v. Galluchio, a which is often cited as a landmark decision, also involved a wound that a doctor advised might become cancerous In this suit against her physician for x-ray bums, plaintiff was allowed to testify that her dermatologist had advised her to get six-month check-ups for cancer.  This advice caused plaintiff to develop a neurosis about cancer. The testimony regarding the dermatologist’s advice legitimized plaintiff’s fears as realistic, and she recovered for them. This case, as well as other similar cases decided around this time, have in common with the earlier fear of disease cases the fact that the feared disease would arise from an existing injury inflicted by defendant. No recovery was granted for fear of disease unaccompanied by pre-existing injury.

Fear of disease cases since Ferrara have also allowed recovery so long as there was a pre-existing injury. The existing injury, rather than the degree of probability that the disease may actually develop, is determinative. Thus, in Heider v. Employers Mutual Liability Insurance Co., the plaintiff, who received a cerebral concussion in a car accident, recovered for his fear of developing epilepsy even though there was only a two to five percent chance of its developing. The plaintiff in Lorenc v. Chemirad Corp. recovered for his fear of developing cancer from a chemical burn on his hand despite the fact that cancer was highly unlikely and preventable. The plaintiff, a doctor, refused a skin graft that would have cured the hand ulceration from which he feared cancer would arise. In addition, the plaintiff had had only a single exposure to the chemical; repeated exposure was necessary to cause cancer in rats. As long as there is some reasonable medical basis for the fears, and a preexisting injury, recovery is allowed.  In recent toxic tort cases, in which the typical pre-existing injury is arguably absent, courts have been reluctant to allow recovery despite the clear medical probability that the disease could develop.

III. FEAR OF DISEASE FROM Toxic SUBSTANCES

The recent product liability suits based on fear of disease differ from the earlier cases in several ways. One of the most important differences is that there is generally no diagnosable pre-existing injury from which the feared disease will come. The lack of such injury distinguishes these cases in two regards: Damages for the fears are not parasitic, and proof of injury is likely to be considered more speculative. Because of these differences courts are looking to traditional emotional distress limitations to determine the viability of claims and proceeding very cautiously. Toxic tort claimants, however, should be able to recover even under the more restrictive emotional distress requirements.

A. Negligent Infliction in Toxic Tort Cases

The original screening device in negligent infliction of emotional distress was the requirement that plaintiff suffer some contemporaneous physical injury or impact. As was discussed above, physical manifestation of the emotional distress was substituted for the impact rule when that rule was perceived to be too limiting. Some courts have further liberalized recovery by requring only that the emotional distress be serious. Ironically, toxic tort plaintiffs, who can meet the physical injury/ impact requirement, are generally barred because they do not meet the more liberal screening devices.

1. Impact in Toxic Tort Cases

Toxic tort plaintiffs have a fear of disease because they have in some manner come in physical contact with a harmful substance. Plaintiffs come in contact with that harmful substance due to defendant’s alleged negligence, and that impact leads to their emotional distress. It is foreseeable that negligently causing someone to come into contact with a harmful substance, which can cause serious or deadly disease, could lead to emotional distress. Thus toxic tort claimants should be able to recover under the traditional impact rule.

Long before the physical manifestation rule became common, impact had become quite easy to show as courts joined legal commentators in the view that this screening device was not crucial. Thus a man who inhaled oily and smoky dust showed sufficient impact without any physical damage to bring suit for his mental anxiety, and a plaintiff who felt a shock wave from an explosion but was not injured by it likewise showed sufficient impact. The ingestion of a harmful substance is certainly sufficient impact under this more relaxed standard.

Adulterated food cases provide a close analogy. Plaintiffs who ingest a noxious substance in adulterated food but who suffer no physical injury find no barriers to bringing suit for emotional distress. A few courts have recognized that ingestion of a toxic substance may be sufficient simultaneous impact or injury to sustain an award for fear of disease. They have taken different approaches, however, in arriving at this conclusion.

An example of one approach is the toxic tort case of Ayers v. Township of Jackson. In Ayers, residents of the New Jersey township sued for cancerphobia arising from their enhanced risk of cancer due to ingestion of toxic waste that leaked from the municipal landfill into their well water. Plaintiffs alleged that the ingestion caused a negligible change to their bodies, which constituted sufficient impact or injury to sustain their cause of action. The New Jersey court, citing an early impact case in which a woman was allowed to sue when some debris hit her in the neck and dust got into her eyes, denied defendant’s motion for summary judgment because further findings as to the nature of the impact were necessary. The court sought to determine whether the ingestion of the chemicals caused a change in plaintiffs’ bodies, even though currently negligible, and thereby caused plaintiffs physical injury. The question is presumably one of degree, because all chemicals that enter the body cause some change. Presumably, a purely transitory change with no discernible effects would not be sufficient, or the question would not have been put to the jury. A slight change with potential for future harm may be. A jury ultimately found in favor of Ayers plaintiffs. If such a change is adequate, most toxic tort claimants can show sufficient injury to support an emotional distress claim.

Not all courts, however, have taken such a liberal approach to impact. The court in Payton v. Abbott Labs stated that impact can be a sufficient basis for a fear of disease case as long as the emotional distress is a reasonably foreseeable outcome of the impact. It is foreseeable that the ingestion of a toxic subtsance would reasonably cause an individual to fear the possible adverse consequences. Nevertheless, the court did not discuss whether plaintiffs-women who were exposed to the drug diethystilbestrol (DES) in utero-had experienced impact. This may be because the court was answering a certified question that assumed that plaintiffs had suffered no physical harm. The Massachusetts court merely held that plaintiffs must suffer physical harm which “must either cause or be caused by the emotional distress alleged,” and that the harm “must be manifested by objective symptomatology and substantiated by expert medical testimony.

In a later DES case, the United States District Court for the District of Rhode Island implied that ingestion was not sufficient impact and that therefore a physical manifestation of the emotional harm was necessary. The plaintiffs in Plummer v. Abbott Laboratories, who allegedly suffered emotional distress due to their increased risk of developing cancer, based their claims on negligent infliction but did not allege physical manifestations of the distress. The court found that, in the interest of control and screening of false claims, Rhode Island would not allow recovery when “both impact and physical manifestations of the asserted emotional harm are absent.” The court, without discussing it, assumed that ingestion was not sufficient impact. This focus on physical injury rather than on impact or emotional harm is likely to continue as courts become increasingly aware of the need to control toxic tort cases. It will result in the denial of recovery to many toxic tort claimants because they typically do not allege or show physical injury.

2. Physical Manifestation in Toxic Tort Cases

The great majority of states, as they abandoned impact as a requisite for negligent infliction of emotional distress claims, required that physical harm result from the emotional distress. It was assumed that if the distress were sufficient to cause physical injuries, the suits would not be frivolous or fraudulent and could be contained. This screening device will continue to be a primary focus of courts dealing with toxic tort fear of disease cases, despite the fact that the emotional distress clearly results from plaintiff’s exposure to a very real harm, and the recognition that genuine emotional injury can occur without significant physical harm.

Not all courts will interpret the manifestation requirement as a bar to recovery when the injury is limited to emotional distress. Many courts have held that even under a manifestation test, bodily contact with a frightening or noxious substance is sufficient physical injury to sustain an award for emotional distress that ensues from this contact. In Laxton v. Orkin Exterminating Co.  the Tennessee Supreme Court held that contact with adulterated water containing chlordane, a possible carcinogen, is sufficient physical manifestation to meet the rule. The court allowed recovery despite the facts that the family suffered no physical injury from ingestion, the mental anxiety did not produce symptoms, and it was not severe enough to require medical treatment. At most, Mrs. Laxton was “very worried” and would “call her husband at work, and cry and express concern about the future health of her children.”

The court found persuasive the fact that the plaintiffs had reasonably obtained medical services because of their exposure. This medical treatment was sufficiently close to physical injury to fit the case within the requirement. Plaintiffs, however, did not seek treatment for any physical manifestation of their mental anxiety or for the mental anxiety itself. When the children in the family exhibited a general malaise, they were taken to their doctor, who, knowing of their ingestion of contaminated water, took blood tests of the family. The blood tests showed that the family had a mild sub-acute reaction to a viral infection, and that there were no chlordane-related abnormalities. The family was advised that they needed no more tests because they had changed water sources and the chlordane was not presently a problem.

As in the earlier fear of disease cases, the court only allowed the award after finding the family’s fears and their seeking of medical tests to be reasonable. In addition, as in those earlier cases, the time for which damages could be recovered was severely limited: Plaintiffs could recover only for the time between the discovery that the ingestion could be harmful and the time blood tests showed that the chlordane had not caused abnormalities-a period of one month. It was during this period that there was sound reason to be concerned.

The result of other courts’ focusing on this “medically reasonable” precedent from earlier fear of disease cases would be to enable virtually all fearful toxic tort plaintiffs to bring suit. Presumably anyone who discovers that he or she has been exposed to a toxic product and who is sufficiently worried to suffer mental distress will seek a medical examination to determine if he or she shows any symptoms of the feared disease. Because there has been exposure to a toxic substance, seeking such exam inations is reasonable and therefore, under the Laxton precedent, satisfies the physical manifestation requirement.

In the Payton case, however, the plaintiffs’ allegation that they had sought periodic medical exams for cancer on the advice of their physicians was not a sufficient demonstration of manifestation for the Massachusetts court. After reviewing the history of emotional distress suits, the court chose to require objective symptomatology of the physical manifestation and corroboration by expert medical testimony. The fact that the fears themselves are reasonable and are based on objective evidence that can be substantiated by expert medical testimony is not enough. The court concluded that unless anxiety produces physical manifestations or flows from a physical injury, it is not sufficiently serious to merit recovery or to ensure the genuineness of the emotional distress claim.

Because DES produces adenosis in up to ninety percent of women exposed in utero to the drug, most of the DES plaintiffs would be able to meet the Payton physical injury requirement. Such a showing, however, bears no necessary relationship to the genuineness of plaintiff’s fears about developing DES-related cancer, and would leave some of the DES daughters with no remedy. By following prior fear of disease decisions and requiring expert medical substantiation that the fears are based on sound probability, a more equitable result would have been achieved. The court, however, opted for the screening devices of other emotional distress cases, choosing control over the comprehensiveness exhibited by the Ayers and Laxton decisions. Strict adherence to the manifestation screening device will result in the denial of meritorious claims. From the standpoint of avoiding such harsh consequences, the Laxton approach is preferable. Fear of frivolous claims, however, appears to be the dominant consideration in these cases, and perhaps rightly so.

3. Judicial Concern with Frivolous Claims

The main difference between traditional impact cases and many toxic tort claims is the time lag between impact and emotional injury. In the former, mental distress occurs almost instantly; in the latter, it often occurs more than a decade later. This may also account for the difference in result between Ayers and Laxton, and decisions such as Payton and Plummer. The crucial difference may be one of degree rather than one of simultaneousness per se. Although there may be no logical or causative reason for the phenomenon, the long standing concern with control and containment of frivolous claims seems to get stronger as the time period gets longer. In Laxton and Ayers, for example, plaintiffs drank water containing toxic substances for a period of time before discovering the harmful properties in the water. In both cases, however, the last ingestion was close in time to discovery of the potential harm. After discovery, plaintiffs suffered emotional distress from concerns about developing diseases from these toxic substances. The Laxton court allowed suit without discussing the time issue, noting only that the distress followed soon after plaintiffs learned of the water’s harmful properties, and that the distress was very short-lived.  The Ayers court, however, specifically stated that the issue was foreseeability, not immediacy. Plaintiffs need not show that their fright resulted from fear of immediate personal injury, as long as defendants could foresee that allowing carcinogens to get into the drinking water would cause fear of cancer. If the harm is foreseeable and the plaintiff’s fears are reasonable and sufficiently severe, suit can be brought.

The fact that the fear and ingestion were not simultaneous, however, seems to have caused the Plummer court to state that there was not sufficient impact or physical manifestation to sustain a claim for the mothers’ fears of developing cancer. The court discussed the time lag in the context of the mothers’ claims for damages based on fears that their daughters would develop cancer, a third-party emotional distress claim for which simultaneity has traditionally been crucial. The court concluded, however, that “prudential jurisprudence” would bar the mothers’ recovery for worrying about potential medical problems of their own or their daughters, because “the trauma of the moment is dissipated by space and time to such an extent that tort law should not permit recovery.” Thus, the court incorporated simultaneity into the impact and manifestation requirements to narrow recovery in toxic tort fear of disease cases.

In Plummer, the time lag between ingestion and the development of the fears was years, not days. If it is foreseeable that causing someone to ingest a carcinogen will cause emotional distress due to fears of developing cancer, it should be irrelevant that the fear develops several years after ingestion, as long as the fear develops close in time to the gaining of knowledge of the carcinogenic properties. In adulterated food cases, for example, the emotional distress arises from discovering that there was something noxious in the food ingested. In toxic substance cases the same is true: Emotional distress arises from discovery that the substance that has entered the body is potentially disease-causing. If the causal connection is clear, the fact that the emotional distress does not coincide with impact should not bar suit. Indeed, the early mishandling-of-body cases, in which recovery for emotional distress was first allowed, did not necessarily require congruence between the negligent act of mishandling and the emotional distress, which often arose later when knowledge of the mishandling was obtained. More recently the California Supreme Court, in its landmark Molien decision, found that simultaneity should not be determinative. The plaintiff husband recovered in that case even though he was emotionally injured only when he learned of the negligent diagnosis given to his wife, not when the actual diagnosis was given. Some courts may, however, be uncomfortable with a long time lag even though the knowledge just as clearly causes the emotional distress, and significant time lags may provide a convenient, though not necessarily logical, way to limit fear of disease cases.

An additional factor in most toxic tort cases which did not exist in Laxton and most early fear of disease cases is the duration of the fears. When the victims have been exposed to substances like asbestos, DES and radiation, they cannot remove themselves from the hazard and thereby stop the risk as the Laxtons were able to do. The potentially harmful substance remains in the body waiting like the sword of Damocles to strike at some indeterminate future date. Thus, the fear of disease is likely to last much longer than has been true in most fear of disease cases. Although this is likely to lead to higher jury awards, it does not change the substantive merits of the case. It may, however, make courts more reluctant to allow suits that do not have this inherent limitation. Courts faced with such situations may follow the lead of Plummer and Payton and ensure that the controls from emotional distress suits remain in toxic tort fear of disease cases.

B. Intentional Infliction of Emotional Distress in Toxic Tort Cases

The requirement of physical manifestation has generally been abandoned in cases in which the emotional distress has been recklessly or intentionally inflicted. Thus, toxic tort plaintiffs who do not suffer physical injuries may be able to proceed under the tort of intentional infliction of emotional distress. Intentional infliction is particularly amenable to toxic tort suits because virtually all such suits allege that defendants knew of the harmful properties of their products but concealed or failed to act on this knowledge for a substantial period of time.

There is increasing evidence of manufacturers distorting, hiding or ignoring information concerning the toxic effects of their products. Such evidence is likely to meet the intentional infliction requirement that defendant’s actions be outrageous or reckless. From the inception of this tort, businesses have been held to a higher standard than have individuals. Recent outrageous business examples include the high-pressure tactics of collection agencies and employer treatment of employees. The intentional or reckless endangering of the public by manufacturers fits easily into the category of the outrageous, especially in these times of consumerism and expapding liability for manufacturers. The large number of awards of punitive damages in toxic tort product liability cases lends credence to the fact that such actions are likely to be considered outrageous.

If the defendant’s actions are outrageous, courts are more likely to compensate for emotional distress even though there is no physical impact or manifestation. The outrageousness is considered a sufficient screening device in itself so that the other screening mechanisms can be eliminated without raising fears of frivolous claims and a flood of litigation. Individuals who fear a disease to which they have been exposed by defendant’s outrageous or reckless actions should have an easier time recovering for those fears. If the manufacturer’s actions are particularly irresponsible, that may even be sufficient to allow recovery for fear of another’s safety.

C. Third-Party Recovery in Toxic Tort Cases

Negligence recovery for fears that close relatives will develop a delayed-manifestation disease from toxic exposure is least likely. In this situation the time lag problem discussed above will probably be determinative. Virtually all courts that allow third-party emotional distress damages keep recovery within reasonable bounds by relying on the requirements of proximity to and contemporaneous observance of a traumatic event. These factors are used as predictors of foreseeability, and work so that liability for defendant’s negligence to someone else ceases at some point. Plaintiffs in third-party toxic tort suits are unable to point to any sudden traumatic event to their close relatives from which springs their emotional distress about those relatives’ developing the feared diseases. Rather, the distress comes long after defendant’s negligent action, and generally without proximity or contemporaneous observance. In virtually all emotional distress cases courts hold that distress from such after-acquired knowledge is not compensable. Indeed, the Supreme Court in Metropolitan Edison v. People Against Nuclear Energy  specifically cited relatives’ fears as one reason not to recognize plaintiffs’ emotional impact claims. The Court recognized that relatives of residents in the Three Mile Island area may suffer emotional distress due to the risks that the start-up of the reactor presents to their relatives. The Court, however, held these fears to be too attenuated to merit cognizance. Underlying this decision were the fear of fraudulent or frivolous claims and concern for the potential impact on decisionmaking resources if such considerations were allowed. In a toxic tort context, the Plummer court denied the third-party claims of plaintiffs, DES mothers, partially on the grounds of lack of simultaneity.

Despite the strong third-party emotional distress precedent, the parents in Laxton were allowed to recover for their fears about their children’s health as well as their own. The court did not discuss the point, but it found that there was “sufficient ‘injury‘ to the plaintiffs to justify a recovery for their natural concern and anxiety for the welfare of themselves and of their infant children.

In addition to the Laxton precedent, there is also some indication that the simultaneity requirement is beginning to weaken in traditional emotional distress cases, especially when the other two requirements are especially strong. DES mothers, who are the primary third-party claimants, could present a good case in this regard. Because their children were exposed to the DES in utero, the relationship could not be closer and, as in Haught, they were in some sense the scene of the accident. Although their fear did not arise at the time of ingestion, it did coincide with their knowledge of the harm, and that fear on the acquisition of knowledge was foreseeable. So far, however, DES mothers have failed to recover for fears concerning their daughters. Few courts are soon likely to follow the Laxton or Haught precedents. Courts will most strongly express their traditional limitation and control concerns through strict adherence to Dillon. Expansion is likely to come last to this area.

The court in Mink v. University of Chicago, although denying such concerns were sufficient for a negligence action, did leave open the possibility of the mothers recovering for their fears about their daughters under a battery theory. Those toxic tort plaintiffs who can prosecute their claims under an intentional tort theory may have an easier route to recovery for their fears about others. Traditionally, courts have been more lenient regarding recovery in intentional infliction cases in which defendants’ actions are outrageous. If, as discussed above, defendants’ actions are found to be sufficient to support intentional infliction claims, fearful parents are more likely to recover.

D. Strict Products Liability

A few plaintiffs have attempted to sue for fears about others as well as themselves under the theory of strict products liability. So far, however, such claims have been unsuccessful. As in the negligent infliction cases, physical injury seems to be a problem. The Mink court denied strict liability recovery on these grounds. The court cited the Restatement (Second) of Torts, which states that one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer. The court found that because plaintiffs had not alleged physical injury, they did not fit within this tort. Yet it is clear that sellers of adulterated food can be held strictly liable for injuries flowing to consumers even when the consumers’ injuries are purely emotional. Contact with a frightening or potentially dangerous product is physically damaging enough to merit the imposition of strict liability in these cases. A few states have even allowed recovery for purely emotional distress under a theory of strict liability in bystander cases.  Following these precedents in fear of disease cases could create the danger of wide recovery for toxic tort claimants because such claims would be parasitic to the claim of strict liability.

E. Containment and Control

As the foregoing discussion illustrates, toxic tort plaintiffs who sue for fear of disease have met with mixed success. Although precedent clearly exists for allowing recovery, many courts have opted to focus on requirements, such as physical injury, which may bar claimants. In so doing, these courts hope to put limits on a defendant’s liability and screen out frivolous claims. Limitation and screening have traditionally been concerns of courts recognizing suits for emotional distress. Another traditional concern, so far largely ignored but which may ultimately prove conclusive, is the fear of a flood of litigation. Modern courts, in expanding recovery under emotional distress, have cited this fear, but they have generally dismissed it as either unrealistic based on past experience, or as an insufficient reason to deny meritorious claims. Delayed manifestation injury cases, however, represent a clearer threat of inundation than any other of the previous expansions.

The number of potential suits for work-related asbestos exposure alone is in the millions. One study estimates there are 14.1 million workers who have had significant exposure to this cancer-causing product since 1940. Millions of others have been exposed outside the workplace. Another study estimates that one in five Americans runs a risk of developing cancer. The number of DES-exposed offspring, whose exposure was not work-related, is also in the millions. Asbestos and DES are but two of the many disease-causing products to which the current population has been exposed. Toxic waste, radiation, formaldehyde, and Agent Orange are other toxic products which have received much publicity, partly due to their wide dissemination. Many other products in wide use have potentially toxic effects, and new relationships are being discovered monthly.

Little is known about the long term mental or physical effects of working or living under the threat of cancer or other disease. Effects of such stress, however, are beginning to be reported. It was recently discovered that wood model makers are at much higher risk of developing colon and rectal cancer than is the general population. Workers reported higher use of alcohol since learning of this danger, and a psychologist predicts more ulcers, drinking and wife abuse will occur as a result of this occupational disease threat. The plaintiffs in Ayers alleged that, in addition to conditions ranging from mild depression to severe psychosis, the families suffered from stress, outbursts of rage and hostility, loss of sleep, and other disturbances. Similar conditions have been reported by other plaintiffs suffering under the threat of developing a disease. In general, physical or emotional illness grows with the stress of the threat of cancer or other disease. Eventually a threat-of-illness etiology may develop which will make it easier for plaintiffs to recover.

Almost one-half of the states have enacted statutes of repose, which commonly set a limit from time of purchase, often ten years, after which suit for physical injuries cannot be brought. Similarly, many state worker compensation statutes impose strict time limitations, barring recovery after a relatively short period. Because a large number of victims will not develop a diagnosable disease until after the running of the statutory time period, they will not be able to claim compensation for their injuries. A recent New Jersey decision, which will significantly add to the number of suits barred, is yet another illustration of the time problem faced by potential plaintiffs. The case, Coons v. American Honda Motor Co., does not directly involve toxic substances; it interprets the constitutionality of a New Jersey statute of limitations. Although Honda was the company involved in the suit, the case was primarily argued by an asbestos mining company as amicus curiae. The statute, which benefits New Jersey citizens without harming in-state corporations, tolls the running of the two year statute of limitations in cases involving suit against a foreign corporation not represented in New Jersey. The United States Supreme Court, in G.D. Searle Co. v. Cohn, held that the statute did not violate the equal protection or due process clauses. The Court did not resolve a commerce clause challenge to the statute, however. The Coons case resolves this issue.

The New Jersey Supreme Court found that the statute unconstitutionally burdened interstate commerce by effectively requiring foreign corporations that engage solely in interstate commerce to register to do business in New Jersey in order to gain the statute’s two-year protection. 88 Although the ruling is to be prospectively applied, its effect is that all corporations can now take advantage of the two year bar. Asbestos litigation is especially heavy in New Jersey because of ship building there, and hundreds of cases will be affected.

Thus, for a large percentage of the millions exposed to toxic substances, fear of development of the disease provides the only avenue to recovery. An additional spur to sue for fear of disease exists if potential defendants appear to be in danger of running out of assets before the claimants develop the feared disease. These incentives, when combined with the wide publicity about product-caused delayed manifestation injuries and an increasingly aggressive and organized toxic tort plaintiffs bar, make fear of inundation of the court system quite realistic.

In some states, courts are already inundated by asbestos-related disease suits alone. These courts are especialy likely to view the addition of hundreds of fear of disease cases as unmanageable. Many courts, however, may be unpersuaded by this threat. Courts that have expanded theories and developed new ones in order to facilitate plaintiffs’product liability suits and overcome time-related problems may be reluctant to deny compensation to thousands of victims of toxic torts. They have overlooked inundation fears in the past and may do so in these cases. This real threat, however, when coupled with the traditional reluctance of most courts to interpret emotional distress claims broadly, should lead to limited recognition of toxic tort fear of disease claims.

IV. COMPROMISE SOLUTIONS

A. Recovery of Medical Monitoring Costs

Plaintiffs who are unable to recover under the current restrictive requirements may still be able to recover the medical costs incurred in determining whether the feared disease has developed. The court in Ayers v. Township of Jackson so held on the basis of public policy. Although plaintiffs could not recover for the enhanced risk of developing cancer, and possibly not for the fear of developing it, medical surveillance to monitor for its development, if necessary, was compensable.  Of course, allowance of such a claim implicitly recognizes that the fears are reasonable and that there is a clear causal connection between the exposure and the emotional distress. It is a short step from Ayers, in which costs of medical monitoring were recovered, to Laxton v. Orkin Exterminating Co., in which reasonably seeking medical monitoring was sufficient to support the emotional distress claim. This middle ground between recovery and denial may, however, be appealing to courts that recognize the real dangers plaintiffs face but that want to hold a tight rein on emotional distress suits.

In the recently decided case of Friends for All Children, Ina v. Lockheed Aircraft Corp. the District of Columbia Circuit affirmed an award of diagnostic damages. Although the Friends plaintiffs faced possible injury from the explosive depressurization of a crashing plane rather than from exposure to a toxic product, the court granted the diagnostic award on public policy grounds similar to those stated in Ayers. The court determined that it was fairer for defendant to pay for diagnostic exams than for plaintiff to bear the risk of receiving damages too late to be of any use. In addition, it found that such an award served the two principal aims of tort law: deterrence of misconduct and just compensation to the victims of wrongdoing.  In so finding, the court rejected plaintiff’s arguments that the jurisdiction did not recognize a cause of action for diagnostic examination without proof of actual injury, and that the common law of tort does not encompass an action for being put at risk. Finally, the court rejected the argument that undergoing diagnostic exams does not constitute injury.

The award of screening costs, and treatment expenses if the disease develops, comprises an appealing settlement for many plaintiffs. Often the people who experience heaviest exposure to toxic substances are those who can least afford medical care. In the town of Triana, Alabama, for example, a dichloro-diphenyl-trichloro-ethane (DDT) manufacturer that closed its plant in 1971 left 837 tons of insecticide at the bottom of a waterway a few miles upriver from the town. Several years later it was discovered that citizens had high levels of DDT in their bodies, some having the highest levels ever reported in medical history.  The town had a cancer death rate of almost four times the national average, yet most residents had not sought medical help because they could not afford to do so. At least two suits were filed against the manufacturer seeking recovery for plaintiffs’ mental anguish from knowing that high levels of DDT existed in their bodies. The Triana cases resulted in a settlement that provided funds for medical screening and treatment of the feared diseases. The Mink case was similarly settled.319 Such a settlement strikes an appropriate balance between the desire to compensate meritorious claims and the need to avoid a flood of litigation.

B. Future Claims Problems in Bankruptcy and Reorganization

Recognition of fear of disease claims may also help lead to other compromise settlements. Future claims problems have plagued attempts at settlement or management of current delayed manifestation litigation. Notable examples are the Unarco (UNR) and Manville filings for reorganization, which have affected large numbers of asbestos-related injury suits. UNR’s appeal to have a special representative appointed to represent future claimants in its bankruptcy proceeding was rejected by the district court because it found that future claimants could not be creditors under the Bankruptcy Code. Because the claims of asbestos victims do not arise under state law until these victims know or should know of their injury, there is no claim until their disease is diagnosable.  Without a claim, victims cannot be included in a settlement plan. Without the ability to settle future claims problems, companies may be forced into bankruptcy, leaving future claimants with nothing. Representing future claimants in the reorganization plan, however, raises questions of due process and jury trial rights of these future litigants.

The recognition that future disease litigants have a present claim for emotional distress means that people who have knowledge of their exposure and are concerned could be included in the reorganization plan. If included, all present litigants would receive less than if they were the only claimants, and the emotional distress claimants would receive less than if they sued later when they developed the feared disease. All are better protected, however, by giving a reduced amount to each.

An additional advantage of recognizing such claims is that it would be easier to determine a settled amount for retroactive insurance purposes. Retroactive insurance, which is purchased after liabilities have been incurred, has been used recently in mass disaster situations such as the MGM Grand Hotel and Casino fire, which killed eighty-five people and injured hundreds more. Manville has suggested the purchase of such insurance to guarantee payment of claims under its reorganization plan. Because the harmful properties of many products were not known or appreciated during the many years that they were in use, many companies have inadequate insurance (or no insurance at all) covering injuries arising from those products. Retroactive insurance is thus a very attractive alternative. Insurance companies, however, are unwilling to extend such insurance for an indeterminate amount. Recognition of future disease claims as current emotional injury claims would facilitate the determination of a definite figure for insurance purposes.

CONCLUSION

Recognizing the claims of toxic tort plaintiffs who are symptomless but fear development of a delayed-manifestation disease would at best produce mixed results. It would allow suit to thousands of plaintiffs who might otherwise be denied recovery when they later develop the feared disease. In addition, it could help lead to solutions to mass disaster toxic tort problems that some manufacturers are facing. Precedent clearly exists for the allowance of such suits, but allowing them in the context of an unlimited time frame would be a dangerous break with that precedent. It is likely that such recognition would overwhelm the judicial system as well as some defendants already struggling under injury claims.

Courts have long feared that recognizing and expanding emotional distress claims would open the proverbial Pandora’s box. In the case of fear of a latent disease, these fears are well grounded. The tort system simply cannot afford to encompass such pervasive fear. Even if courts generally recognize such claims, plaintiffs still face a very practical but difficult problem: convincing the jury to compensate them for their fears. It is difficult to go a week without news of toxic exposure. Virtually everyone in society is conscious of the fact that the air they breathe, water, food and drugs they ingest, land on which they live, or products to which they are exposed are potential health hazards. Although few are exposed to all, few also can escape exposure to any.  A member of our society faces a one in five chance of developing cancer or other debilitating disease.  Probably most are concerned at some level about the implications of such exposure. Because such risks are inherent in everyone’s lives, it may be difficult to convince a jury that the plaintiff should be specially compensated for his or her fears. In the DES cases that have gone to trial, plaintiffs with cancer have collected sizeable awards, but those without have been denied recovery by the jury.

Courts that have liberalized the law of negligent infliction of emotional distress by not requiring impact have maintained control by requiring that the plaintiff prove that a reasonable person would have suffered severe emotional distress from the defendant’s actions. Courts that have gone further and substituted seriousness for manifestation likewise require plaintiff to prove serious mental distress by showing that a normally constituted person would be unable to adequately cope with the mental stress engendered by the circumstances. Toxic tort plaintiffs may discover that courts and juries view fear of disease to be a normal condition of everyone’s life.

Terry Morehead Dworkin, 1984.

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1983 DES Case: Plummer v. Abbott Laboratories

Abstract

” This is a products liability action initiated by 51 individual plaintiffs against 7 manufacturers of the drug diethylstilbestrol (DES). Jurisdiction is based on 28 U.S.C. § 1332. Of the original plaintiffs, 48 remain in the case; 21 are women who, during their respective pregnancies, took DES on the advice of their physicians. These women, in the fourth amended complaint, complain of emotional distress arising out of increased fear of contracting cancer and out of heightened concern for the current or future medical problems of their respective daughters.

After extensive discovery, all defendants now seek summary judgment against 16 of the 21 aforementioned women. The gravamen of the defendants’ motion is that Rhode Island does not and would not recognize a cause of action for negligent infliction of emotional harm in the absence of physical manifestations of such distress. The targeted plaintiffs have objected. The matter has been fulsomely briefed; and at a chambers conference held on May 9, 1983, all parties waived oral argument and declined the court’s invitation to consider certification of the questions raised to the state supreme court.

Plummer v. Abbott Laboratories, U.S. District Court for the District of Rhode Island, law.justia, 568 F. Supp. 920, July 1, 1983.

The facts are not in dispute and can be summarized succinctly. The targeted plaintiffs ingested DES during their respective pregnancies; they do not contend, however, that they have sustained any physical harm or that they have manifested physical sequelae of any emotional distress.

The targeted plaintiffs claim as injuries only the following:

  • increased risk of contracting cancer and concomitant mental strain as a side effect of trepidation associated therewith;
  • and/or mental distress ancillary to fear and concern as to their children’s current and possible future medical problems.

This court, sitting in diversity jurisdiction, must determine whether the enumerated facts combine to state a cause of action for negligent infliction of emotional distress under Rhode Island law.” …

… read the full paper Plummer v. Abbott Laboratories, 568 F. Supp. 920 on Justicia US Law.

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1984 DES Case: Eli Lilly & Co. v. Home Ins. Co.

Abstract

” Plaintiff Eli Lilly and Company moves this Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). Defendants, Lilly’s insurers from 1947 to July 15, 1976, vigorously oppose the motion. For the reasons set forth in this Opinion, the Court finds that there is no genuine issue as to any material fact and Lilly is entitled to judgment as a matter of law. Accordingly, the motion of plaintiff for summary judgment is granted.

Background

ELI LILLY AND CO. v. HOME INS. CO., Leagle, 1984654653FSupp1_1654, April 12, 1984.

Eli Lilly is one of several hundred manufacturers of products containing the drug diethylstilbestrol (DES). Between 1947 and 1967, Lilly manufactured and sold DES for prescription use by women with a history of threatened or habitual miscarriages In 1970, a statistical association was shown between the ingestion of DES by pregnant women and the occurrence of vaginal clearcell adenocarcinoma in the female offspring exposed in utero to DES. Since the discovery of this association, Lilly’s liability for clear-cell adenocarcinoma and other DES-related diseases has become the subject of voluminous litigation. Indeed, as of March 1, 1983, approximately 641 lawsuits had been filed against Lilly.

In the typical case, the plaintiff, a DES-daughter, alleges that her mother ingested DES during pregnancy and her in utero exposure to DES caused a DES-related injury. The most common injuries alleged by plaintiffs are vaginal or cervical clear-cell adenocarcinoma and vaginal adenosis Lilly also has been named as a co-defendant with other manufacturers of DES in cases where a plaintiff is unable to identify the manufacturer of the particular synthetic estrogen that allegedly caused the injury These cases are not uncommon since several years elapse between the ingestion of DES by a pregnant woman and the diagnosis of a DES-related disease in the male or female child of that pregnancy.

Lilly notified defendants of the various DES claims filed against it. The general position of each of the insurers is, however, that its policy does not provide coverage for these claims since the proper date of the alleged DES-related injury did not occur during the policy period. In this action for declaratory judgment, Lilly seeks a judgment declaring that

  1. each policy in force from the date of ingestion of DES until the manifestation of an alleged DES-related injury provides full coverage to Lilly for the entire amount of its indemnifiable losses and expenses, subject only to those underlying dollar limits of liability contained in each policy;
  2. Lilly may elect under which of the policies in force it will file each claim;
  3. the insurer which issued the policy that Lilly elects must pay the full amount of Lilly’s indemnifiable losses and expenses with prejudgment interest as permitted by law;
  4. and the participation or contribution by other insurers whose policies are in force during the period of coverage shall be the responsibility of the insurers and shall not impede or detract from Lilly’s ability to receive indemnification. ” …

… read the full paper ELI LILLY AND CO. v. HOME INS. CO., on Leagle.

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