1988 DES Case: Enright v. Eli Lilly & Co.


 Plaintiffs bring suit to recover damages for personal injuries and related claims allegedly sustained as a consequence of ingestion of the drug diethylstilbestrol by Rosemary Whitmore Hickson, the mother of plaintiff Patricia Enright and the grandmother of plaintiff Karen Enright.

Defendants move for summary judgment dismissing the complaint for failure to state a cause of action and on the ground the claims are time barred together with various other grounds. “…

ENRIGHT v. ELI LILLY & CO., Leagle, 1988335141Misc2d194_1295, September 28, 1988.

“From the voluminous documents filed and the myriad of issues therein raised, the following primary issues are distilled:

  • Does a granddaughter, born more than 20 years after the ingestion of drugs by her grandmother, have a cause of action against the drug manufacturer for birth defects claimed to have resulted from her mother’s injuries which are linked to the drug ingestion? 
  • Does New York recognize a joint theory of liability whereby all or any drug manufacturers of a harmful drug may be held responsible for injuries sustained from the drug regardless of whether they are identified as the manufacturer of the drug in the individual case?
  • Is the revival statute which permits the late filing of the instant lawsuit unconstitutional?
  • Does such revival statute permit a derivative claim for loss of consortium?
  • Are emotional claims resulting from the birth of a handicapped child cognizable in New York? ” …

…continue reading the full paper ENRIGHT v. ELI LILLY & CO., on Leagle.

More DES DiEthylStilbestrol Resources

1988 DES Case: Johnson v. Eli Lilly & Co.



Plaintiffs Carol Johnson and her husband, Larry Johnson (“the Johnsons”) commenced this action in New York State Supreme Court alleging that Carol Johnson’s mother ingested diethylstilbestrol (“DES”) manufactured by Eli Lilly in 1952, and that Carol Johnson has been injured as a result. Eli Lilly removed the action to this Court on the basis of diversity jurisdiction.

JOHNSON v. ELI LILLY & CO., Leagle, 1988859689FSupp170_1839, April 7, 1988.

The Johnsons now move for partial summary judgment, contending that Eli Lilly is collaterally estopped from disputing certain facts based on the special jury verdict returned in a prior DES case against Eli Lilly. Defendants cross-move for summary judgment dismissing the complaint, contending that plaintiffs are barred from bringing this action under the doctrine of res judicata. I find that plaintiffs are barred from bringing this action under the doctrines of res judicata and collateral estoppel, and, therefore, grant defendants’ motion to dismiss the complaint.


Plaintiffs allege that Carol Johnson’s mother, Elizabeth Philbin, took DES in 1952 while she was pregnant with Carol Johnson. The prescription written by Mrs. Philbin’s physician called for a five milligram dose of an Eli Lilly product known as Enseals Stilbestrol. “Enseals” is a trade-name used exclusively by Eli Lilly.

Carol Johnson has been diagnosed as having carcinoma in situ of the cervix, vaginal adenosis with focal dysplasis and typical DES changes in the cervix. She entered the Genesee Hospital on July 6, 1981, and received a total abdominal hysterectomy.

Prior Litigation

On February 23, 1983, the Johnsons commenced a products liability action against Eli Lilly in the United States District Court for the Western District of Pennsylvania based on Mrs. Philbin’s ingestion of DES and Carol Johnson’s development of cancer. (“Johnson I“) In an Order dated September 19, 1983, the court granted Eli Lilly’s motion to dismiss, finding that the action was barred by the New York statute of limitations which accrued at the time Mrs. Philbin ingested the DES.

On December 13, 1986, the Johnsons commenced a second action in the court of Common Pleas for Allegheny County, Pennsylvania. (“Johnson II“) The case was removed on January 12, 1987 to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1441. The Johnsons subsequently moved for partial summary judgment, seeking to collaterally estop Eli Lilly from litigating certain issues based upon the verdict in Bichler v. Eli Lilly and Co.. Eli Lilly cross-moved for dismissal on statute of limitations and res judicata grounds.

In a Memorandum Decision and Order dated October 28, 1987, the court denied the Johnsons’ motion for summary judgment and granted Eli Lilly’s motion to dismiss. The court held that the suit was barred by res judicata because the dismissal of Johnson I constituted a decision on the merits. Applying Pennsylvania’s borrowing statute and the Pennsylvania accrual date, the judge further found that the suit was barred by the Pennsylvania statute of limitations. However, the court noted that it made no judgment as to whether the New York revival statute served to reviveJohnson I because no formal motion requesting such relief had been filed. The court then granted Eli Lilly’s motion for summary judgment without prejudice to the Johnsons filing a motion to revive Johnson I.

While awaiting the decision in Johnson II, the Johnsons commenced the present action, (“Johnson III“) in New York State Supreme Court.” …

…continue reading the full paper JOHNSON v. ELI LILLY & CO., on Leagle.

More DES DiEthylStilbestrol Resources

1988 DES Case: Jolly v. Eli Lilly & Co.


This case presents the following questions:

  • whether a plaintiff, in a suit for personal injury caused by a defective drug, who is unaware of any specific facts establishing wrongful conduct on the part of any drug manufacturer, may delay bringing an action until she discovers such facts;
  • whether a claim, otherwise barred by the statute of limitations, can be revived due to our decision in Sindell v. Abbott Laboratories, in which we held that a plaintiff who is unable to identify the particular manufacturer of a fungible drug that caused injury to her can state a claim by joining defendants who manufactured a substantial percentage of the market share of the allegedly defective drug;
  • and whether the filing of the class action in Sindell, supra, tolled the statute of limitations for members of the putative class until the class was denied certification.

We answer these questions in the negative and so conclude that the suit is time-barred.

JOLLY v. ELI LILLY & CO., Leagle, 1988114744Cal3d1103_11104, April 7, 1988.

Plaintiff Jolly was born in 1951. In 1972, she first learned that while she was in utero her mother had ingested the synthetic drug estrogen diethylstilbestrol (DES) for the prevention of miscarriage. Plaintiff was told in 1972 that DES daughters could suffer injuries. Therefore, she went to a DES clinic at the UCLA Medical Center for a checkup. She was diagnosed as having adenosis, a precancerous condition that required careful monitoring. In 1976, she had an abnormal pap smear and underwent a dilation and curettage, a surgical procedure to remove abnormal tissue. In 1978, plaintiff underwent a complete hysterectomy and a partial vaginectomy in order to remove malignancy. As of 1972, plaintiff was aware, or at least suspected, that her condition was a result of her mother’s ingestion of DES during pregnancy.

Starting in 1972, plaintiff attempted to discover the manufacturer of the DES ingested by her mother. Efforts were increased in 1976 and 1978 when plaintiff’s condition became acute. Unfortunately, the doctor who prescribed the drug had died, and plaintiff was unable to locate his records. Although the dispensing pharmacist did remember filling the DES prescription, he did not recall or have records pertaining to the specific brand used. This was not unusual since DES was a fungible drug, that is, hundreds of pharmaceutical companies made DES from a single agreed formula. The hospital where plaintiff was born was of no assistance because plaintiff’s mother did not use DES while there.

At least as of 1978, plaintiff was aware of the pendency of one or more DES suits alleging that DES manufacturers were liable to those injured due to their failure to test or failure to warn. Although she believed that DES had caused her injuries and that those who marketed DES had wrongfully marketed a defective product, there is no conclusive evidence in the record to show that a reasonable investigation by plaintiff in 1978 would have disclosed specific proven facts that would establish any wrongful conduct on the part of a DES drug manufacturer. In fact, even today defendants allege that DES is not defective, but for purposes of summary judgment have admitted the allegation of some defectiveness.

Further, plaintiff believed that she had no cause of action if she could not identify the particular manufacturer of the drug her mother took during pregnancy. Because her efforts to identify that manufacturer were unsuccessful, plaintiff did not file suit.

In March 1980, we decided Sindell v. Abbott Laboratories, supra, and held that if a plaintiff could not identify the precise drug manufacturer of the ingested DES, she could state a cause of action against the DES manufacturers of a substantial percentage of the market share of the drug. Defendants would be liable, assuming the remaining material allegations in the complaint were proven, unless they could disprove their involvement. Almost one year afterSindell, plaintiff Jolly brought this action.

Defendants moved for summary judgment, asserting that the action was barred by Code of Civil Procedure section 340, subdivision (3), setting forth a one-year statute of limitations period for an action “for injury … caused by the wrongful act or neglect of another.” Although conceding the applicability of the one-year statutory period, plaintiff denied that the suit was time-barred. She asserted that the statute did not commence until she learned of the Sindell decision, because only then did she realize that she would be able to successfully bring her claim.

Plaintiff maintained that Sindell created a new cause of action by redefining “causation.” Prior to Sindell, she claimed, only the specific manufacturer of the pills that were ingested was deemed to have “caused” the injury. After Sindell, according to plaintiff, it was the generic drug DES that “caused” the harm, and therefore all DES manufacturers were tortfeasors.

The trial court granted defendants’ motion and entered judgment in their favor. The Court of Appeal reversed, relying on its earlier decision in Kensinger v. Abbott Laboratories. The Court of Appeal did not address Jolly’s main argument, that the statute could not begin to run until after our decision in Sindell, supra, except by way of a footnote declining to adopt her position. ” …

…continue reading the full paper JOLLY v. ELI LILLY & CO., on Leagle.

More DES DiEthylStilbestrol Resources

1988 DES Case: Kortenhaus v. Eli Lilly & Co.


This is a prescription drug liability case brought against a manufacturer for in uterogynecological injury plaintiff Susan Kortenhaus alleges resulted from her mother’s ingestion of DES during pregnancy Her complaint asserts claims against defendant Eli Lilly & Company based on theories of negligence, strict liability and breach of warranty.

KORTENHAUS v. ELI LILLY & CO., Leagle, 1988390228NJSuper162_1372, September 26, 1988.

The matter comes before us on defendant’s interlocutory appeal, on leave granted, from a partial summary judgment precluding it from litigating certain liability issues on the ground these were previously litigated by defendant and resolved against it in an earlier action in New York, Bichler v. Eli Lilly and Co.,reported on appeal and from denial of its subsequent motion for reconsideration. In the February 16, 1988 order for partial summary judgment appealed from, defendant was collaterally estopped, i.e., barred, from disputing that DES was not reasonably safe for accidents of pregnancy in 1953; that in 1953 defendant should have foreseen that DES might cause cancer in the offspring of pregnant women who took it; that a reasonable and prudent drug manufacturer would have tested DES on pregnant mice before marketing it; that the results of such tests would have shown that DES causes cancer in the offspring of tested mice; and that a reasonable and prudent drug manufacturer would not have marketed DES for use in accidents of pregnancy in 1953 if it had known that DES causes cancer in the offspring of pregnant mice. On appeal defendant contends the application of collateral estoppel to preclude it from contesting these factual conclusions was improper.” …

…continue reading the full paper KORTENHAUS v. ELI LILLY & CO., on Leagle.

More DES DiEthylStilbestrol Resources

1988 DES Case: Maloney v. American Pharmaceutical Co.


This case presents a question of successor liability of a corporation for injuries allegedly caused by a prescription drug manufactured by a predecessor corporation, now defunct. We conclude that successor liability does not attach, and we affirm a summary judgment entered in favor of the defendant corporation.

Statement of Facts

MALONEY v. AMERICAN PHARMACEUTICAL CO., Leagle, 1988489207CalApp3d282_1471, December 21, 1988.

Declarations and deposition transcripts filed in the case at bar reveal the following uncontroverted facts. In 1950, while Mary Maloney was a fetus developing in Grace Beckley’s womb, Grace Beckley took a prescription drug, stilbestrol, also known as diethylstilbestrol (DES). The manufacturer of that drug was American Pharmaceutical Company, a Delaware corporation (APC I).

APC I went through a period of financial difficulty. In 1972, all of the then officers of APC I were fired and William Widerkehr was installed as APC I’s new president, at the behest of the principal stockholders and with the approval of the First Pennsylvania Banking and Trust Company (the bank), APC I’s sole secured creditor, to which APC I owed over $1 million. Widerkehr’s efforts failed to save APC I. The bank called its notes, APC I ceased doing business, and Widerkehr worked for the bank during the early part of 1973 liquidating the assets of APC I. The bank took over APC I’s accounts receivable. Except as noted below, the bank sold APC I’s machinery and equipment and other assets to Keith Machinery Company and to various other persons.

In August 1973, Widerkehr and two other men (who had not been associated with APC I) formed a new corporation called American Pharmaceutical Company (APC II), with Widerkehr as president. APC II was, and is, a New Jersey corporation. In September, 1973, the bank sold the leftover bottles, labels, packaging materials and finished goods which bore APC I’s logo, and were therefore of no use to other companies, to APC II. APC II paid the bank $32,500 for these items and paid $500 for the right to use APC I’s name, APC I’s goodwill, and APC I’s patents and trademarks (limited to nonprescription drugs). The assets of APC I which APC II acquired constituted about 10 percent of the total liquidated assets of APC I.

APC II acquired none of APC I’s machinery, equipment, buildings, inventory, stock, or accounts receivable. APC II never used any of the premises formerly occupied by APC I. APC II did not and does not make or sell prescription drugs, and has never made, sold, or owned any DES. APC II did not agree to assume any of the liabilities of APC I.

Procedural History

On January 12, 1982, Mary Maloney filed a complaint in Contra Costa County Superior Court in which she claimed that the DES which her mother had taken had caused Mary Maloney to suffer menstrual irregularities, cysts, ovarian and fallopian tube irregularities, and precancerous vaginal and cervical growths. The complaint further alleged that T.J. Maloney, Mary Maloney’s son, suffers from cerebral palsy as a result of Mary Maloney’s exposure to DES as a fetus. Mary Maloney sued in her own behalf and as guardian ad litem for her minor son. The defendants in this first complaint were four pharmaceutical companies and one hundred does. The defendants in a third amended complaint, filed December 8, 1982, were 171 companies and 250 does. The third amended complaint asserts the following theories of recovery: strict liability for a defective product, negligent manufacture, breach of implied warranty, breach of express warranty, and fraud.

On September 9, 1983, (defendant) APC II filed a motion for summary judgment, on the ground that APC II did not market or manufacture the DES which had allegedly caused plaintiffs’ injuries. (Indeed, as noted above, APC II never marketed or manufactured any DES at all.) Plaintiffs opposed the motion, on the ground that a triable issue of fact existed as to APC II’s successorship status. The trial court denied the motion on November 28, 1983. On February 18, 1986, APC II again moved for summary judgment, on the same ground as that asserted in its first summary judgment motion. The trial court decided to hear the motion anew, and granted APC II’s motion for summary judgment on April 17, 1986. A judgment of dismissal as to APC II was entered June 24, 1986. Plaintiffs appeal that judgment. ” …

…continue reading MALONEY v. AMERICAN PHARMACEUTICAL CO. on Leagle.

More DES DiEthylStilbestrol Resources

1988 DES Case: Needham v. White Laboratories, Inc. Rehearing


Anne Needham brought this products liability suit against White Laboratories, basing federal jurisdiction on diversity of citizenship, and after a jury trial obtained a judgment for $800,000. White Laboratories appeals from the judgment. Needham cross-appeals, seeking a new trial on damages or, alternatively, additional interest on the judgment.

In 1952 Anne Needham‘s mother, while pregnant with her, used a prescription drug manufactured by White Laboratories — dienestrol — to prevent a miscarriage. Dienestrol is a synthetic estrogen similar to the better-known DES (diethylstilbestrol). In 1974 Anne Needham developed clear-cell adenocarcinoma, a vaginal cancer that is substantially more common among women whose mothers received estrogen treatments during pregnancy than among other women. Anne Needham brought this suit in 1976, and in 1979 won a judgment for $800,000 which this court reversed because of error in the admission of evidence. On May 12, 1982, the district court decided that the new trial we had ordered would be limited to liability, and that if Needham won again her damages would be the same $800,000 that she had been awarded at the end of the first trial. She did win again, she was duly awarded $800,000, and the present appeal and cross-appeal followed.

NEEDHAM v. WHITE LABORATORIES, INC., Leagle, 19881202847F2d355_11148, April 27, 1981.

According to White Laboratories, the critical issue in the second trial was whether it should have known back in 1952 that dienestrol might pass through the placenta and induce cancer in the fetus. If so, White Laboratories admits it would be found liable either for negligence, or for the form of strict liability (perhaps misnamed) that consists of selling without a warning a product which the seller should know is unreasonably dangerous — provided that the issue of causation was also resolved in Anne Needham’s favor: the Melnick study indicates that clear-cell adenocarcinoma is not always caused by estrogen therapy, so there is some chance that she would have developed the condition even if her mother had never taken dienestrol. On this appeal, however, White Laboratories does not question the sufficiency of the evidence that White should have known of the danger and also that Anne Needham would not have developed adenocarcinoma but for her mother’s taking dienestrol.

It had long been known that estrogen treatments could cause cancer in the women receiving the treatments, and that many substances could pass through the placental barrier. A study conducted in 1940 and known to White Laboratories had found abnormalities in the sexual organs of both male and female offspring of rats who had been injected with estrogen during pregnancy. But no studies had shown that estrogen would cause cancer in the fetus, based on a concession by the defendant in that case); and only one study had found that any cancer could be induced in a fetus by migration of a carcinogen across the placenta, — let alone the long-delayed estrogen-induced cancer that struck Anne Needham when she was an adult.

This may be rather tenuous footing for an inference that before marketing a new drug to pregnant women back in the early 1950s White Laboratories should have conducted tests on pregnant animals (which it did not do) and that if it had done so it would have discovered that estrogen therapy might cause cancer in fetuses, in which event it would surely have had to tell physicians, including Mrs. Needham’s physician, to warn their patients of the danger. On the other hand, White Laboratories is almost certainly mistaken in suggesting that the jury would have had to draw this inference in order to impose liability. It would have been quite enough — might indeed have been more than enough, as we shall see later — that White Laboratories should have known that estrogen could cause some harm to the fetus, and immaterial whether the harm took the form of cancer, let alone a specific cancer such as clear-cell adenocarcinoma. McMahon v. Eli Lilly & Co., (applying Illinois law in a DES case).

At all events, White Laboratories does not question the jury’s right to draw an inference of negligence or unreasonable (implying reasonably foreseeable) danger. It does complain about the jury instructions, however, and about the action of the plaintiff’s counsel in harping to the jury on the dangers of dienestrol to Anne Needham’s mother, even though she was not a plaintiff and, so far as appears, had not been injured by the estrogen treatments that she took while pregnant. The complaints are related; the alleged error in the instructions consists of language that, White Laboratories argues, authorized the jury to award judgment to Anne on the basis of the dangers of dienestrol to her mother.

The attack on the instructions assumes, what is by no means certain but is also unnecessary to decide, that if the harm to Anne Needham was unforeseeable she cannot recover damages merely because the defendant was negligent toward her mother and the negligence caused the daughter’s injury. Against the assumption it can be argued that while unforeseeable plaintiffs are sometimes barred, this is by no means always true. In Renslow v. Mennonite Hospital, a child who had not been conceived at the time the hospital’s employees committed negligent acts against her was allowed to recover the harm to herself caused by those acts. The present case is thus an even stronger case for what the Supreme Court of Illinois later described as the “limited area of transferred negligence” (corresponding to transferred intent in the law of intentional torts) recognized in Renslow. Kirk v. Michael Reese Hospital & Medical Center.

Even if the injury to Anne Needham would have had to be foreseeable for White Laboratories to be held liable, its attack on the instructions must fail — and this though the instructions are redundant, disorganized, and full of legal jargon. White Laboratories does not complain about the instructions en masse; and although the result of the judge’s picking and choosing among the instructions tendered by the parties leaves much to be desired as a specimen of English prose designed for persons with no legal training, we do not set aside a jury verdict on the ground of lack of clarity, or even outright error in some of the instructions, unless — having due regard for the unrealism of assuming that isolated passages in a long set of instructions are likely to have made the difference — we are convinced that the instructions, taken as a whole, are likely to have impaired substantially the jury’s ability to understand the case.

White Laboratories focuses on the instruction that allowed the jury to find negligence if “the defendant failed to warn the medical profession … about the reasonably foreseeable potential development of cancer to users and their offspring exposed to the effects of the drug,” or “failed to reasonably test for potential harmful effects to users and their offspring.” There was much evidence that White Laboratories should have warned the medical profession about the danger that dienestrol would cause cancer in the users of the drug, such as Anne Needham’s mother. This evidence was admissible and admitted, even though Mrs. Needham was not a plaintiff, because the more carcinogenic a drug is, the greater the duty of the manufacturer to explore the full scope of its potential danger. This is an application of the basic tort principle (itself a corollary of the even more basic principle that negligence is the failure to take a level of precautions commensurate with the likelihood and magnitude of the risk created by the defendant’s conduct, that the greater the benefits of precaution, the more precautions must be taken. Investigation of the dangers of a product is a form of (or step toward) precaution against those dangers; so the greater the potential dangers, the greater the duty of inquiry. In the case of a drug given to pregnant women, the potential danger includes harm to the fetus, since many substances pass the placental barrier — and this was known in 1952. But because no one in 1952 knew that estrogen therapy could cause cancer in the fetus, the plaintiff’s counsel naturally placed heavy emphasis on the studies that showed it might cause cancer in the mother, as those studies helped bridge the gap between the single study that had shown that estrogen might harm the fetus and the conclusion he wanted the jury to draw (perhaps unnecessarily) that White Laboratories should have realized there was a risk that estrogen might cause cancer in the fetus. White Laboratories argues that this heavy emphasis, combined with the instruction quoted above, invited the jury to award Anne Needham damages for White Laboratories’ failure to warn the medical profession about the danger of dienestrol to the user, not the danger to the fetus.

This argument (an artifact of White Laboratories’ own insistence that Anne Needham prove that the danger of cancer to the fetus must be foreseeable, but we shall pass this point by for the moment) is not rebutted by pointing out that the phrase “users and their offspring” (emphasis added) logically required the jury to find that the potential for the development of cancer in offspring as well as users was reasonably foreseeable. That is pushing logic too hard, since “and” is frequently used disjunctively (as one when says, “I don’t have any aches and pains” today). Nevertheless, White Laboratories’ argument must fail. Shortly after the quoted passage, the instructions tell the jury: “It was the duty of the defendant, before and at the time of Mary Needham’s ingestion of dienestrol, to use ordinary care for the safety of the plaintiff.” The only plaintiff was Anne Needham. Later the judge said, “If you [the jury] find that the defendant White Laboratories knew or should have known by way of proper testing or inquiry into the scientific literature that the drug dienestrol was capable of causing harm to Anne Needham, and that the defendant White Laboratories did not convey this information to the medical profession, those facts would constitute negligence.” This is the clearest passage in the instructions, and it should have dispelled the ambiguity created by the “users and their offspring” passages. The instructions on strict liability are explicitly limited to danger to offspring, and White Laboratories does not complain about them.

No doubt the plaintiff’s counsel was trying to strengthen his case that the defendant should have investigated and discovered the danger to the fetus, by directing the jury’s attention to dramatic evidence that the defendant had been distressingly insouciant about the danger that dienestrol would cause cancer in the user of the drug, i.e., the mother. Unless the district judge was prepared to rule that foreseeability of the danger to the mother was enough, which he was not prepared to do, it would have been better if he had made clear to the jury that this evidence was relevant only insofar as it showed that a responsible firm would have conducted tests on pregnant animals before making the drug available to human beings, or at least would have warned the medical profession about the danger so that doctors could advise their patients on the tradeoffs between, on the one hand, the destruction of the fetus by miscarriage and, on the other, the danger of cancer to the mother and the possible danger of cancer or other illness or deformity to the fetus. But the instructions read as a whole put the issue correctly to the jury, if less clearly than could be desired. And copies of the instructions were given the jury to take with them into the jury room; they were not forced to rely on their memories.

We do not pretend to know a great deal about the mental processes of jurors. Since jurors are not required to explain their reasoning, since their deliberations are confidential, and since their lack of legal training and experience makes it difficult for a judge to think his way into their minds, the attempt by judges to evaluate the impact of specific instructions on a jury’s verdict is speculative and quite likely to be mistaken. This is a reason to proceed cautiously when asked to set aside a jury’s verdict, and order a new trial bound to consume substantial judicial resources, on the ground that the instructions contained erroneous or confusing passages. This cautious approach is especially appropriate for an appellate court asked to set aside the verdict of a jury that, necessarily, it never saw. The instructions here were inelegant and somewhat ambiguous, but that is not a good enough reason to put the parties and the district court through the ordeal of another trial.

White Laboratories’ second ground of appeal — that Needham’s lawyer was allowed to make too much of the evidence of the danger to users of the drug, both in his opening and closing statements and in his questions to witnesses — requires little discussion. The balancing of the probative value of relevant evidence against its inflammatory or otherwise prejudicial or confusing effect is a matter committed to the judgment and good sense of the district judge, and we will rarely try to second-guess the balance struck. Certainly not here, for White Laboratories must shoulder a substantial share of the blame for what it contends was an excessive harping on the undoubted danger of its drug to the users. Its lawyer failed to object to most of this evidence, and, when he did object, failed to state the ground of the objection clearly. Had he done so, Judge Kocoras might have curtailed the scope of the inquiry and refocused the trial.

We move to the cross-appeal, where the plaintiff is asking for a new trial on the ground that if $800,000 was a correct assessment of her damages in 1979 (which no one questions), it must be too little today. Stressing the considerable inflation that has occurred since then, she submitted an affidavit to the district court showing that an award of at least $1,212,000 in November 1986 (shortly before the second trial) would be necessary to confer the same purchasing power that $800,000 had conferred in 1979. The inflation may have been anticipated and provided for in the earlier award, but that would not affect the argument; that award was premised on the assumption that she would receive the award at once and invest it in order to earn interest that would offset (in part anyway) the inflation. Even without any inflation, the same award seven years later would probably be too little. An award of tort damages compensates not only for future losses but also for past losses up to the date of trial. If a judgment is delayed by seven years, the plaintiff will be entitled to seven more years of past losses and seven fewer years of future losses, and since future losses are discounted to present value they will be weighted less heavily in the award. However, courts do not discount future losses due to disfigurement or pain and suffering, as distinct from loss of earnings and medical expenses, and it is likely that most of Anne Needham’s damages are of the former sort, although the award may include some allowance for future medical expense.

Although the plaintiff’s argument that the damages award is too low might have been a powerful one if the issue of damages had been litigated in the second trial and if the jury had decided that since a previous jury had awarded $800,000 in 1979 it should award the same amount notwithstanding the decline in the purchasing power of the dollar or the possible asymmetry of past and future losses, there was no second trial on damages. The plaintiff could of course challenge the second judgment on the ground that the district court’s order in May 1982 determining that there would be no second trial on damages was erroneous, but she makes no complaint in this court about that order and she has therefore waived any objection to the amount of the damages.

The last issue is whether the plaintiff is entitled to prejudgment interest. The plaintiff tries to convert the issue into one of postjudgment interest, citing the Illinois postjudgment interest statute, Ill.Rev.Stat. ch. 110, ¶ 2-1303. In fact, as we noted recently, postjudgment interest in federal diversity cases is governed by federal rather than state law. But as neither party has cited the federal postjudgment interest statute, any argument based on it is waived — and in any event Needham would not be entitled to postjudgment interest under cases interpreting the Illinois statute. She points out that a judgment for $800,000 in damages was entered in 1979 and that the effect of the district court’s second judgment was to reinstate the original one, and concludes that she is entitled to interest at the statutory rate since 1979. Although Illinois courts award postjudgment interest from the date of a judgment that was reinstated after having been set aside by the trial judge or reversed by an intermediate appellate court, that is not what happened here. The 1979 judgment was never reinstated. It was set aside, the case was retried, and a new judgment was entered, albeit one identical in amount to the old judgment.

But this leaves the question, also raised by the plaintiff, whether pre judgment interest might be awarded. Originally, prejudgment interest was awarded only in suits for a sum certain, for example a suit to collect a promissory note. Whether from a sharper awareness (perhaps inflation-induced) that prejudgment interest is necessary to compensate plaintiffs fully and discourage defendants from stalling, or whether from increased sympathy for plaintiffs, or for both or other reasons, courts in Illinois and elsewhere have become more liberal in their allowance of prejudgment interest and will nowadays award it in contract cases whenever the defendant’s liability can be readily computed, so that it can protect itself from having to pay interest by tendering the amount of its liability to the court, to be returned to it of course if it wins the case. 

Ordinarily in a tort suit the amount of the defendant’s liability cannot be computed with the required precision until judgment is entered, so there is no question of awarding prejudgment interest. This was the situation here until May 12, 1982, when the district court decided that if the plaintiff won the second trial she would receive the same amount of damages — $800,000 — that the first jury had awarded. On that day it became certain — as certain as if this had been a suit on a promissory note for $800,000 — that White Laboratories, if it lost again, would owe Needham $800,000. It could have deposited that amount in the district court with complete certainty that this was what it would owe the plaintiff if she won.

This reasoning would be decisive if prejudgment interest in Illinois were a matter of common law; for we would predict that, faced by a case such as this, the courts of Illinois would consider the award of prejudgment interest to be entirely reasonable. In some states issues of prejudgment interest are common law issues. Unfortunately for Anne Needham, the award of prejudgment interest in Illinois is governed by a statute that awards such interest only on “all moneys after they become due on any … instrument of writing,” on loans, on money due on the settlement of accounts, on money “received to the use of another and retained without the owner’s knowledge,” and on “money withheld by an unreasonable and vexatious delay of payment.” Ill.Rev.Stat. ch. 17, ¶ 6402. None of these conditions could possibly be satisfied by Needham’s products liability suit against the manufacturer of the drug ingested by her mother, unless White Laboratories’ refusal to pay up after losing the first time could be considered fraudulent, or otherwise unreasonable and vexatious, which it could not be; White Laboratories had a valid ground for believing that judgment to be invalid.

The only Illinois case that Needham cites on prejudgment interest is a contract case. She cites no authority for the proposition that Illinois courts would recognize a common law right to prejudgment interest in cases not covered by the statute; our decision in In re Air Crash Disaster Near Chicago, , is some evidence they would not. Our own research has discovered several cases in which Illinois courts have asserted a power to award prejudgment interest on equitable rather than statutory grounds, but the power is asserted hesitantly, and there is no indication that it could reach as far as the present case.Alguire v. Walker,mentioned the power but refused to invoke it, holding that just because the defendant had had the use of what was ultimately determined to be the plaintiff’s money for the three years while the lawsuit was pending he was not entitled to prejudgment interest; otherwise every winning plaintiff would be. There was none in this case beyond the conduct giving rise to the suit; if that “bad conduct” were enough, every successful tort plaintiff would recover prejudgment interest.

Although the rationale for prejudgment interest is applicable to this case, we are given no grounds for believing that the Illinois courts would embrace it in the face of a narrowly drawn and detailed statute apparently governing the matter, and an excruciatingly small judge-made “equitable” safety valve which has never been opened in a case remotely similar to this case. We hesitate to undertake creative forays in matters of state law — especially when not urged to do so. For Needham does not argue that Illinois courts might recognize a duty apart from the statute; she fails to cite the statute, let alone discuss its limitations. ” …

… continue reading NEEDHAM v. WHITE LABORATORIES, INC. on Leagle.

More DES DiEthylStilbestrol Resources

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


” In proceedings below, plaintiffs Mary McMahon and her husband Francis sued in their individual capacities and as representatives of their deceased son. They claimed that the Eli Lilly and Company (“Lilly”), a pharmaceutical manufacturer, failed to warn adequately of the dangerous propensities of diethylstilbestrol (DES). This failure to warn, plaintiffs claimed, rendered DES an unreasonably dangerous product, so that Lilly should be held strictly liable for injuries allegedly caused by the drug.

McMAHON v. ELI LILLY AND CO., Leagle, 19851604774F2d830_11466, December 13, 1985.

Mrs. McMahon has found it difficult to achieve full-term pregnancies and normal deliveries. Several of her children have been born prematurely. One premature infant son died. During each of her later pregnancies, Mrs. McMahon was bedridden throughout the final months. Plaintiffs claim that these difficulties were caused by her exposure to DES prenatally when her mother ingested the drug.

The case was tried to a jury. After the jury was unable to reach a verdict, the district court granted defendant’s motion for a directed verdict.

  1. First, the court ruled that plaintiff “has not made out aprima facie showing that the defendant Lilly manufactured the drug she took.”
  2. Second, it ruled “Plaintiff did not establish a prima facie case that Lilly knew or should have known of a risk of pre-term labor or prematurity among children of those women who in 1955 had ingested DES during pregnancy.

Plaintiffs appeal. Lilly cross-appeals, arguing that plaintiffs’ claims are barred by Illinois’ product liability statute of repose.” …

… continue reading the full paper McMAHON v. ELI LILLY AND CO., on Leagle.

More DES DiEthylStilbestrol Resources

1988 DES Case: Shields v. Eli Lilly & Co. Memorandum

Plaintiff Amy Shields brought an action in this Court alleging that she had suffered severe and permanent injury, including but not limited to, clear cell adenocarcinoma of the vagina, as a result of her exposure in utero to diethylstilbestrol (DES) manufactured, sold, distributed, and/or promoted by the defendant. On September 26, 1988, the Court granted defendant’s motion for summary judgment and dismissed plaintiff’s complaint with prejudice, finding that despite having had ample time for discovery, plaintiff still failed to show sufficient, non-speculative evidence that she had indeed been exposed to defendant’s DES in utero. ” …

SHIELDS v. ELI LILLY & CO., Leagle, 1988964704FSupp260_1897, December 6, 1988.

” Plaintiff asks the Court to reconsider its ruling in light of seven specified factors.

  1. … Plaintiff argues that there was no inconsistency between plaintiff’s mother’s identification of the pills she purportedly took while pregnant with plaintiff and plaintiff’s subsequent answers to defendant’s interrogatories, which said that her mother did not remember the physical description of the pills, dates of ingestion, nor instructions for use. …
  2. … Plaintiff argues that the labor and delivery records of plaintiff’s mother do not “negate exposure” to DES. …
  3. … Plaintiff complains that defendant “misrepresented” Nurse Clifford’s use of the term “on occasion.” …
  4. … Plaintiff notes that “defendant failed to advise the Court that the only variety or congener of DES commonly used and recommended in 1955 was Dienestrol, manufactured by White Chemical Company.” …
  5. … Plaintiff argues that the Court failed to grasp “the true meaning” of Celotex v. Catrett, which plaintiff explains, “only concerns itself with the sufficiency of evidence needed by a moving party, and … leaves it to the District of Columbia Circuit to determine what is sufficient evidence in opposing summary judgment.” …
  6. … Plaintiff notes that, contrary to defendant’s oral argument, Bulthuis v. Rexall Corp, was not vacated. …
  7. … Plaintiff asserts that “the test at this stage of the proceedings is not `whether a fair-minded jury could reasonably conclude that the plaintiff is entitled to a verdict,'” but “whether there is any evidence in the record from any source which if reduced to admissible evidence, could create a reasonable inference that the plaintiff was exposed to DES.”  …

… Finally, plaintiff’s motion asks the Court whether “a young woman suffering from a rare type of cancer, (which [plaintiff parenthetically notes without support or further elaboration] did not exist before the marketing of DES) is unable to bring her dead doctor or her lost prenatal records into court 33 years later, is she automatically barred from trial?”

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

More DES DiEthylStilbestrol Resources

1988 DES Case: Shields v. Eli Lilly & Co.

Plaintiff Amy Shields has brought a products liability action against the defendant. Specifically, she alleges that she was severely and permanently injured, including, but not limited to, clear cell adenocarcinoma of the vagina, as a result of her exposure in utero in 1955 to diethylstilbestrol (DES) manufactured, sold, distributed, and/or promoted by the defendant. The case is presently before the Court on defendant’s Motion for Summary Judgment.

SHIELDS v. ELI LILLY & CO., Leagle, 1988709697FSupp12_1705, September 26, 1988.

In her response to defendant’s interrogatories, plaintiff states that her mother was prescribed DES during the “early period of [her] pregnancy” with plaintiff by Dr. Alexander B. Sinclair. Dr. Sinclair has since died, and his medical records are no longer in existence. Plaintiff further responded that her mother filled the prescription at Watkins Drug Store, but that her mother has no other recollection of the physical description of the pill taken or instructions for its use.

Prior to plaintiff’s submission of the answers to interrogatories, plaintiff’s counsel deposed plaintiff’s mother, Margaret Shields. Margaret Shields testified in her deposition that she was staining during the first trimester, and her obstetrician, Dr. Sinclair, put her on bed rest and gave her a prescription to prevent miscarriage. While she did not recall the name of the medication, she described it as similar to “little red cinnamon drops or pills,” which were smaller than aspirin, and said that she took it twice daily for about one month. She further testified that her recollection was refreshed by a small, red pill that she had picked from a “lineup” of some twenty-five pills shown her by plaintiff’s counsel. Plaintiff gives no explanation for the inconsistency between this deposition testimony and the subsequent response to defendant’s interrogatories, other than to say that plaintiff did not confer with her mother in completing the interrogatories, notwithstanding the express instructions to do so. Finally, Margaret Shields testified that her belief that the medicine she took was DES was based solely on the much later consensus of opinion of plaintiff’s physicians, and that she had never made any effort to confirm that she had indeed taken DES..

Far from corroborating Margaret Shields’ deposition testimony, her labor and delivery records, as well as subsequent medical records, tend to contradict it. First, her labor and delivery records for plaintiff’s birth contain the cryptic notation, “spotting — 3 days — June cleared bed rest.” Second, when Margaret Shields gave her medical history to a different doctor during her second pregnancy, she apparently made no mention of any medication. Those records contain the notation, “3½ months — bleeding — 4 days in bed.”

Dr. Sinclair’s nurse from the mid-1950’s, Marjorie Clifford, was also deposed, after first submitting a sworn affidavit. However, contrary to plaintiff’s argument, in her brief and during oral argument, neither the affidavit nor deposition shows that Dr. Sinclair had a “custom” or “habit” of prescribing DES to pregnant women who were bleeding and threatening to miscarry. In fact, just the opposite is true. First, in nurse Clifford’s affidavit, she stated that she recalled Margaret Shields being a patient of Dr. Sinclair’s. Further, she recalled that “on occasion,” Dr. Sinclair would prescribe DES to women who were straining or threatening to miscarry in early pregnancy. Nurse Clifford’s subsequent deposition is even more telling. When asked about “Dr. Sinclair’s usual, ordinary management of the case,” nurse Clifford responded, “The first thing he insisted upon was absolute bed rest. If they didn’t respond to bed rest, he may have used, on occasion, some oral medications or injectable medications. It depends. Each situation was a little different.”

Plaintiff next relies on two affidavits.

  1. In the first, Dr. Shane, a physician/pathologist, states that he has reviewed three slides taken from the vaginal tract of Amy Shields, and that in his opinion the tissue was abnormal. Further, he feels this abnormality “was caused by her in-utero exposure to synthetic estrogen (DES) or its congeners and that such pathologic findings would not appear in the absence of DES exposure to a statistical certainty of 97% to 99.7%.”
  2. In the second affidavit, Linwood Tice, a professor at the Philadelphia College of Pharmacy and Science, states that he is “personally familiar with the physical appearances of the commonly-used pharmaceuticals employed by physicians in the 1950’s,” and that based on that familiarity, he feels “there was no progesterone or progesterone-type medication commonly and ordinarily on the market and dispensed which was red in color and smaller than an aspirin in size.”

Finally, prior to any litigation, plaintiff was diagnosed as having DES changes in her cervix and vagina.” …

… continue reading the full paper SHIELDS v. ELI LILLY & CO., on Leagle.

More DES DiEthylStilbestrol Resources

1988 DES Case: Shirkey v. Eli Lilly & Co.

Julie Shirkey, the plaintiff in this diversity action, appeals from a jury verdict in favor of Eli Lilly & Company (“Lilly”). Shirkey seeks tort damages under both strict liability and negligence theories as compensation for having contracted clear cell adenocarcinoma of the vagina, a cancer that has been linked to in utero exposure to synthetic estrogen. Shirkey attributes her illness to her mother’s ingestion of diethylstilbestrol (“DES”), a form of synthetic estrogen marketed as a prescription drug for the prevention of miscarriage and other complications of pregnancy by Lilly and other pharmaceutical companies from 1947 through 1972.

SHIRKEY v. ELI LILLY & CO., Leagle, 19881079852F2d227_11036, September 9, 1988.

The case went to trial on the liability issue alone with damages issues reserved for later resolution. At the conclusion of the evidence, the district judge read separate instructions to the jury pertaining to negligence and strict liability theories. Responding to a series of special interrogatories, the jury found that Shirkey’s mother had ingested DES manufactured by Lilly while pregnant with Julie. The jury also held, however, that Lilly was neither negligent in marketing DES in 1960 nor strictly liable for having marketed a defective product.

On appeal, Shirkey asserts that the district court’s jury instructions misstated Wisconsin law. She contends that the district judge should not have instructed the jury that Lilly could be held strictly liable only if it knew or should have known about the dangers of in utero exposure to DES. Shirkey also asserts that the district judge’s negligence instruction understated Lilly’s duty to potential users by directing the jury to consider the reasonableness of Lilly’s failure to foresee the specific harm at issue here — cancer in female offspring — rather than the reasonableness of failing to foresee the possibility of some harm to the offspring of pregnant users. Shirkey also contends that the district judge abused his discretion by excluding two bodies of relevant evidence: depositions from an earlier suit against Lilly taken from an expert who was unable to appear at Shirkey’s trial and evidence that DES was ineffective in preventing miscarriages.

We find that Shirkey’s challenges to the jury instructions raise issues that lack determinate answers under existing Wisconsin case law. We will therefore certify questions concerning Wisconsin’s strict liability and negligence law to the Wisconsin Supreme Court under the mechanism provided by Wisconsin law. Since the relevance of the excluded evidence may depend on the correctness of the legal standard that the district court applied, we defer consideration of the evidentiary questions until the Wisconsin Court either clarifies the legal standard or declines our certification and leaves us to anticipate the development of Wisconsin law as best we can.” …

… continue reading the full paper SHIRKEY v. ELI LILLY & CO., on Leagle.

More DES DiEthylStilbestrol Resources