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


” In an action to recover damages for adenocarcinoma of the cervix and vagina alleged to have resulted from the ingestion by plaintiff’s mother of Diethylstilbestrol (DES) while pregnant with plaintiff, the defendant Eli Lilly & Company (Lilly), appeals from an order entered December 3, 1982, which:

  1. granted plaintiff’s motion for partial summary judgment on the basis of issue preclusion as to certain issues determined by the special verdicts and judgment in Bichler v Lilly & Co.;
  2. granted plaintiff’s motion and that of codefendants for a severance of plaintiff’s action against Lilly from that of the trial to be conducted on plaintiff’s claims against all other codefendants, including eight pharmaceutical companies;
  3. and denied Lilly’s cross motion to vacate a prior order restraining counsel from communicating with jurors in the Bichler case and for leave to depose two named jurors in the Bichler case.

KAUFMAN v. ELI LILLY & CO, Leagle, 198479499AD2d695_3311, February 9, 1984.

In significant respects, the issues presented on this appeal are similar to those addressed by this court recently in Goldstein v Consolidated Edison Co. Both cases involve the appropriateness of an affirmative application of issue preclusion in the absence of mutuality in the context of a multiple claimant situation against the contentions of a defendant that circumstances surrounding the determination sought to be given preclusive effect render the application of issue preclusion fundamentally unfair. To the extent to which Lilly relies upon grounds similar to those relied upon by the defendant in Goldstein, and there found insufficient by a majority of this court to justify the denial of issue preclusion — indications of a compromise verdict and alleged prior inconsistent determinations — I find Lilly’s arguments less persuasive on balance than I had evaluated the comparable arguments presented in Goldstein, although of sufficient merit to make this a close question. However, the central issue here seems to me to derive from a legal development that

  1. leaves in serious doubt the viability of the concert of action theory of liability on the basis of which this court sustained Lilly’s liability in Bichler for a product not proved to have been manufactured by Lilly,
  2. and strongly suggests that a sounder basis for imposing liability, and one more likely to be sustained by the Court of Appeals, may be found in the modified alternative liability theory developed by the California Supreme Court in Sindell v Abbott Labs. an approach that this court did not have an opportunity to consider in Bichler, and which requires the joinder in a single action of companies representing a substantial portion of the relevant market.

In affirming the Bichler judgment, the Court of Appeals found that the defendant had not preserved for its consideration the essential issues of liability presented in the case, and was explicit that the affirmance was not to be taken as an acceptance either of that theory of liability or indeed of any other that had been advanced in DES cases. In the light of this carefully limited holding, it is surely significant to the issue before us that a decisive majority of the courts that have addressed the issue have rejected the concert of action theory of liability sustained by this court in Bichler, some in comprehensive, carefully detailed opinions written subsequent to this court’s decision. It is equally significant that in an opinion written subsequent to this court’s decision, the Massachusetts Supreme Court indicated that in a proper case it might be prepared to sustain liability on the basis of the modified alternative liability theory. (See Payton v Abbott Labs.)

The effect of the several determinations embraced in the order appealed from is to require a second trial on a theory of liability not likely to be sustained by the Court of Appeals, and to defer for some period of time a trial that would permit a determination of factual issues relevant to a theory of liability that has a better chance of being sustained. In any event, it seems to me manifestly preferable in the interest of the expeditious, economical and fair determination of the many pending DES lawsuits in this State that there be an early trial which permits a resolution of issues pertinent to more than one theory of liability in this unclear and doubtful area, and which would also present the possibility of a definitive determination of liability with regard to pharmaceutical companies that collectively represent a very large share of the DES market. ” …

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

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1984 DES Case: Lord v. Parke, Davis & Company


LORD v. PARKE, DAVIS & COMPANY, Leagle, 19843736PaDampC3d1_137, January 11, 1984.

”  Defendants, Merck & Co., William H. Rorer, Inc., Rexall Drug Company, Parke-Davis & Co. and Rowell Laboratories, Inc., each filed motions for summary judgment alleging in substance that they had not manufactured or distributed DES during the time period or in the market area relevant to plaintiffs cause of action and were therefore entitled to judgment in their favor as a matter or law. Factual evidence submitted by each of defendants clearly supported his allegations. Plaintiffs’ response to each of defendants’ motions presented no factual evidence to contradict defendants’ contentions. Instead, plaintiffs argued that defendants were liable under various theories of vicarious liability which have been widely propounded in the course of nationwide DES litigation — alternative liability, enterprise liability and concert of action. We rejected plaintiffs’ theories as applied to the instant motions and, in light of the demonstrated absence of a genuine issue of fact as to liability, we granted defendants’ respective motions. “

… read the full paper LORD v. PARKE, DAVIS & COMPANY on Leagle.

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The Diethylstilbestrol Dilemma: Who Should Pay?


1971 investigations reported an increased risk of a rare form of vaginal cancer, clear cell adenocarcinomas, in the daughters of women who had taken diethylstilbestrol (DES) to prevent miscarriage. It is estimated that during the over 20 year period that DES was marketed for the prevention of miscarriages, more than 200 companies distributed the drug and that between 500,000 and 2 million pregnant women took the drug, creating between 500,000 and 6 million potential plaintiffs.

The Diethylstilbestrol Dilemma. Who Should Pay? JAMA ;251(24):3228-3229. doi:10.1001/jama.1984.03340480020019, June 22, 1984.

Over 1000 lawsuits have been filed in the US by daughters of women who took DES during their pregnancies and who have actual or potential injuries as a result. Records of the prescribing physicians, pharmacies, and drug companies often have been discarded. The records that are available generally are not helpful because all DES was produced according to a standard chemical formula and frequently was manufactured and prescribed generally. In many of the lawsuits, the plaintiff’s underlying approach has been that DES manufacturers are liable because they failed to test the drug for its long term effects on both mother and child and also failed to warn of these long term effects. The manufactuers’ defense has been that their studies were conducted according to customary practice at the time and there was no reason to suspect that DES would cause cancer in the daughters so many years after the mothers’ injection.

Plaintiffs’ attorneys have applied several unusual theories to the DES problem in attempts to impose joint and several liability on the DES manufacturers as a group, without identifying the particular manufacturer responsible for each plaintiff’s injury. These are reviewed: concerted action; alternative liability; market share; enterprise liability, and the US Food and Drug Administration‘s liability.

There have been mixed results for the injured plaintiffs and the defendant drug manufacturers in the cases that have been tried to conclusion.

  • Many courts have dismissed DES suits in which the plaintiffs have been unable to identify the manufacturer, leaving those plaintiffs without a remedy.
  • Some courts have allowed suits against one or more drug manufacturers although no evidence exists connecting those defendants to a plaintiff’s injury.
  • In most of these cases, the courts have shifted the burden of proof to the defendants to establish they were not the manufacturer of the DES ingested by the plaintiff’s mother.

The courts have assigned responsibility for the DES caused injuries to the drug manufacturers on public policy grounds to provide a remedy for injured plaintiffs who have no other way to obtain redress. Some legal commentators favor a federal legislative scheme to provide compensation to victims of DES and other toxic substances, but there are strong arguments against the broad concept of federal product liability legislation and against the particular bills pending in Congress.

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1984 DES Case: Martin v. Abbott Laboratories

”  This case concerns whether plaintiffs, allegedly injured by the drug diethylstilbestrol (DES), have a cause of action against numerous DES manufacturers when they cannot identify the specific manufacturer of the DES ingested. The trial court held that plaintiffs had stated a cause of action when it denied summary judgment as to two drug manufacturers, finding material issues of fact under a theory of alternate liability.

We reject the application of alternate liability. We hold that plaintiffs have stated a cause of action under a theory of recovery announced in this opinion. For the reasons discussed below, we affirm in part and reverse in part.

Trial Court Proceedings

MARTIN v. ABBOTT LABORATORIES, Leagle, 1984683102Wn2d581_1629, October 4, 1984.

Rita Rene Martin was born on October 4, 1962. Her mother, Shirley Ann Martin, obtained a prescription for and ingested DES from May 1962 until the date Rita Martin was born. On January 4, 1980, Rita was diagnosed as suffering from clear cell adenocarcinoma of the vagina. On February 21, 1980, as a result of the cancer, Rita underwent a radical hysterectomy, pelvic node dissection, and partial vaginectomy.

Like many other women who have pursued judicial remedies for injuries they allege were caused by DES, Shirley Martin cannot remember which drug company manufactured the DES she ingested. Moreover, because of the passage of time and because DES was marketed generically, neither Shirley’s physician nor her pharmacist, William Ludwig, Jr., f/d/b/a Lakewood Pharmacy, Inc., can remember which company manufactured or marketed the drug Shirley ingested. The only thing Shirley Martin can substantiate is that she took the drug in 100 mg. doses.

Shirley and Rita Martin sued numerous drug companies on the theories of negligence, strict liability and breach of warranty, for personal injuries, pain, suffering, and destruction of the parent-child relationship. The Martins alleged that all of the pharmaceutical companies were liable for their injuries because of the companies’ concerted or joint action to gain FDA approval and to market DES. The Martins allege this concerted action is established by

  1. the manufacturers’ collaboration in testing and marketing DES,
  2. the marketing of DES on a mutually agreed-upon formula,
  3. and the marketing of DES as a fungible item which led to the selling of DES without reference to the brand prescribed.

The Martins also sued pharmacist Ludwig on the theory of strict products liability for selling an unreasonably dangerous product.

Defendants Summers Laboratories, Inc., and Hill Pharmaceutical, Inc., were dismissed by stipulation. Corvit Pharmaceuticals was never served with process and is not a party to this appeal. Penn Herb Company, Ltd., was dismissed when it became apparent that it was not a proper defendant. Approved Pharmaceutical Corporation and Pharmex, Inc., are in default because they were served but never appeared to defend.

The remaining defendants moved for summary judgment, generally alleging that the Martins’ inability to identify the correct manufacturer of the drug Shirley Martin ingested was fatal to the Martins’ cause of action. The trial judge granted summary judgment to all of the remaining defendants except Stanley Drug Products, Inc., Kirkman Laboratories, Inc., and pharmacist Ludwig.

The trial judge dismissed defendants who had proved they did not market DES in the dosage or form ingested by Shirley Martin, which included Abbott Laboratories; Carnrick Laboratories, Inc.; Eli Lilly and Company; Merck and Company, Inc.; Rexall Drug Company; The Upjohn Company; and Raway Pharmaceutical Company. The trial judge further dismissed those defendants who had proved that they did not market DES for accidents of pregnancy, which included Armour Pharmaceutical Company; Ayerst Laboratories, Inc.; Wyeth Laboratories, Inc.; Breon Laboratories, Inc.; and Winthrop Laboratories. Summers Laboratories, Inc., was dismissed, as the product they manufactured was not marketed in the state of Washington. E.R. Squibb and Sons, Inc., was dismissed on the basis that the retail price charged Shirley Martin for DES purchased from Ludwig’s pharmacy was less than the wholesale price for Squibb’s trademark DES. Stanlabs Pharmaceutical Company was dismissed upon a finding that no material issue of fact existed as to successor liability for the acts of Stanley Drug Products, Inc.

As to the two remaining defendants, the trial judge held that, under the theory of “alternate liability”, there were material issues of fact as to the liability of Stanley Drug Products, Inc., and Kirkman Laboratories, Inc.

Although the trial judge found that there were arguable questions of fact concerning liability for concerted action, the trial judge rejected this theory because it would result in joint and several liability for a number of defendants who could prove that they did not manufacture the DES that caused plaintiffs’ harm, and because he believed the theory of “alternate liability” more fairly accommodated the facts of this case.

The trial court also found material issues of fact as to Ludwig’s liability as the dispensing pharmacist. Finding no just reason for delay, the trial court entered a final judgment pursuant to CR 54(b).

The Martins filed a notice of appeal in this court on March 1, 1983. At the same time, Stanlabs Pharmaceutical Company, Kirkman Laboratories, Inc., and Ludwig filed notices of appeal in Division Two of the Court of Appeals. Both appeals are now consolidated for review here.

The Martins endorse the trial court’s ruling, but continue to argue that they have raised issues of fact which would justify even broader liability under concerted action, enterprise, or market-share theories of liability. They urge this court to reverse the trial court’s order as to those respondents dismissed on summary judgment. The respondents argue that the trial court correctly dismissed the majority of the pharmaceutical companies joined in this action. Respondents contend, among other things, that adoption of any theory that would impose industry-wide liability would hamper the development of new drugs, would impose enormous potential costs on pharmaceutical companies, and would not serve as an incentive to use greater care in producing drugs. Finally, respondents urge the Martins to seek broader liability through legislative enactment.

Stanley Drug Products, Inc., and Kirkman Laboratories, Inc., contend that the trial judge erred in not granting summary judgment in their favor. Their basic contentions are that neither was identified as the actual defendant that manufactured or distributed the DES ingested by Shirley Martin, and the probability that either was such party is very small, in that they are but two manufacturers from a large potential number of defendants. ” …

… read the full paper MARTIN v. ABBOTT LABORATORIES on Leagle.

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

” This pharmaceutical product liability action arises from the use of diethylstilbestrol (DES). The trial court determined that under Missouri law the admitted inability of plaintiffs to identify which, if any, of the defendants made the product that allegedly caused their injuries was fatal to their claims and granted summary judgment for defendant drug manufacturers. The judge filed a memorandum opinion analyzing DES litigation theories to date and suggesting a theory of his own. The Court of Appeals, Eastern District, agreed with the summary judgment and, citing the trial judge’s memorandum, transferred the case to this Court as one of general interest and importance calling for a policy decision and prompting reexamination of existing law. The issue, one of first impression in this state, is whether plaintiffs may recover for injuries allegedly caused by in utero exposure to DES absent proof which identifies the particular manufacturer of the DES taken by their mothers. Affirmed.

ZAFFT v. ELI LILLY & CO., Leagle, 1984917676SW2d241_1876, September 11, 1984.

DES is a synthetic estrogenic hormone which, along with similar chemical derivatives of stilbene, was first manufactured as a miscarriage preventative in 1947. DES duplicates the activity of estrogen, a female sex hormone linked to problem pregnancies in the 1930’s. As opposed to the natural estrogen formerly used in the treatment of problem pregnancies, DES was inexpensive and easy to administer, Ferrigno v. Eli Lilly & Co. (1980). From the time the United States Food and Drug Administration approved the drug to 1971, more than 200 drug companies participated in the market, Ryan v. Eli Lilly & Co. (1981). DES continues in use today for non-pregnancy related disorders, Lyons v. Premo Pharmaceutical Laboratories, Inc. (1979). In 1971, researchers reported a statistical link between fetal exposure to DES during pregnancy and the subsequent development of cancer of the reproductive organs in the female offspring. Late that year, the FDA halted use of the drug to prevent miscarriage.

The instant action is one of a number of similar lawsuits filed across the country. Note, Market Share Liability: An Answer to the DES Causation Problem, 94 Harv.L. Rev. 668 (1981). Plaintiffs here filed two separate actions for actual and punitive damages against thirteen manufacturers and distributors of DES for use in the prevention of miscarriage. Plaintiffs allege that these defendants represent all or substantially all of the known manufacturers, sellers, or distributors of stilbene derivatives in Missouri at the relevant time. Plaintiffs further allege that their mothers, while pregnant with plaintiffs, ingested DES manufactured, sold or distributed by one of the named defendants. Plaintiffs claim that the cancerous or pre-cancerous conditions from which they suffer are a direct result of their exposure in utero to DES. Plaintiffs charge that defendants represented the drug as safe while they knew or should have known of its potential carcinogenic effects, and engaged in common marketing practices of generic distribution of DES without adequate warning or testing.

Most important to review of this litigation, is plaintiffs’ inability to identify which of the defendants manufactured, sold or distributed the particular products ingested by their mothers. DES was marketed generically by as many as 300 drug companies. The problems linked to its use surface many years following exposure, and neither memories nor records provide assistance in matching a specific dosage with an individual manufacturer. Collins, supra. In their appeal of the summary judgments for defendants, appellants contend, however, that “justice requires” that Missouri law recognize some form of “enterprise” liability against DES manufacturers despite the inability of a plaintiff to identify the manufacturer of the particular drug which caused the individual injury. …

… GUNN, Judge, dissenting. I dissent for the reason that I would apply the rule developed in Sindell v. Abbott Laboratories. …

The propriety of shifting the burden of proof to defendants on the issue of causation-in-fact is amply demonstrated in Summers v. Tice (1948), referred to in the majority opinion. The conduct of the two hunters who tortiously exposed plaintiff to injury also made it impossible for plaintiff to identify the particular hunter whose conduct had injured him. Nor was it likely that either hunter could have proven that he did not cause the plaintiff’s injury. Nevertheless, the burden to disprove causation was placed upon defendant hunters who, if the burden was not met, remained jointly and severally liable for the whole of plaintiff’s damages.

In the present case, as in Sindell, plaintiffs allege that manufacturers of DES tortiously exposed the offspring of consumers to serious medical harm. Yet, the nature of the risk combined with the fungible form in which the drug was produced make it impossible to identify the particular manufacturer whose product caused a given injury. It is possible to prove, however, what quantities of the drug were produced and distributed by specific manufacturers in a specific time frame.

The Sindell court concluded that the basic approach taken in Summers v. Tice was applicable to the DES milieu, although not without some alteration. Plaintiffs were permitted to shift the burden of proof only upon a showing tht the particular defendants joined in the action together accounted for a substantial portion of all the products which could have actually caused the injury. Defendants who could not prove that their product did not cause the damage would nevertheless be responsible only for that portion of plaintiff’s damages corresponding to the relative likelihood that plaintiff’s mother purchased their product as opposed to a product manufactured by any one of the other defendants. By adapting the Summers v. Tice approach to suit the particular context, the Sindell court produced a cogent and fair setting in which DES litigation could proceed.

The majority opinion notes the danger that if less than all of the manufacturers whose products may have been purchased by a plaintiff’s mother are named as defendants, the responsible manufacturer may not be held liable and those who are named may pay more than their fair share. Nevertheless, the ability of manufacturers to interplead other manufacturers whose product accounted for a significant portion of the market reduces this risk, although certainly does not eliminate it. The “substantial share of the appropriate market” threshold in Sindell does no more than shift to defendants the hazard that certain manufacturers may be defunct or otherwise not amenable to suit.

Furthermore, it is not clear whether the Sindell court intended to apportion plaintiff’s damages based on a defendant’s share of the market relative to the other named defendants or a defendant’s share of the market relative to all other manufacturers of DES. See Robinson, G., Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. 713, 726 (1982). This latter approach would be more consistent with probability and more consistent with a theory of “apportionment of causation” as opposed to apportionment of fault. Id. Such a scaling of liability in accordance with probability would vitiate the danger of proceeding against less than all of the manufacturers who may have manufactured the product which caused the harm and would render the “substantial share” threshold unnecessary.

The majority expresses concern that the Sindell court did not define the “relevant market” concept. It would seem that there are actually two different concepts of “relevant market” applicable to this situation. The first is a component of the threshold requirement that the named defendants together account for a substantial share of the relevant market; i.e., a substantial likelihood that their products were actually purchased and consumed by the DES mother. Since this threshold need not be a stringent one to meet, this likelihood could be demonstrated by fairly general proof regarding defendants’ shares of the total amount of DES marketed. No great degree of specificity should be required of plaintiffs prior to discovery.

The second “relevant market” concept comes into being once plaintiff has survived a motion to dismiss. At that point the precise issue becomes the relative likelihood that the plaintiff’s mother actually purchased the product manufactured by the individual defendant. The relevant market is the area of her residence, her drugstore, her pharmacist. While proof of this issue may be fraught with difficulty, it is a difficulty which is more appropriately born by the manufacturers than by the plaintiffs—a legitimate concept in products liability. In either sense of the term, the “relevant market” is defined by the DES mother herself, the only real distinction being the means of proof used to describe that market.

The Sindell approach, applied in the context of modern apportionment of fault and third-party practice, affords a high degree of correlation between the individual manufacturer’s share of the risk and its liability for damages. Quite apart from the evident policy concerns, this correlation (expressed in terms of probability) provides the justification for the presumption embodied in the shifting burden of proof. ” …

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

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Multiple Causation in Tort Law: Reflections on the DES Cases

Reflections-on-the-DES-Cases book cover imagePublished by: The Virginia Law Review

DOI: 10.2307/1072725

Stable URL: http://www.jstor.org/stable/1072725

Page Count: 57

Virginia Law Review
Vol. 68, No. 4 (Apr.,  1982),  pp. 713-769.

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1983 DES Case: Fleishman v. Eli Lilly & Co.

Plaintiff was born on March 29, 1955. Almost exactly 23 years later, in March, 1978, she discovered that she had cervical and vaginal cancer, which required radical surgery, including a complete hysterectomy. In January and February, 1980, plaintiff commenced suit against the four defendant drug companies, setting forth seven causes of action. According to the complaint, the cancer was caused by a drug named Diethylstilbestrol (hereinafter DES), a drug previously manufactured by defendants, which was ingested by plaintiff’s mother when the latter was pregnant with plaintiff. The sole issue on this appeal is whether plaintiff’s suit was brought within the period provided by the applicable Statute of Limitations. …

FLEISHMAN, Leagle, 198392196AD2d825_1453, August 1, 1983.

The drug was not administered to plaintiff but to her mother. While it might be argued that the mother was injured at the time she ingested DES, a fact question exists as to whether the unborn child being carried by the mother was injured at that time or later. …

… It is as though the DES had a time bomb affect on the body. A general rule that ingestion and injury are simultaneous ignores the fact that some drugs have no immediate effect on the body and is premised on an absolutist theory that represents a primitive scientific view. The question of when an injury occurs is empirical in nature. If the issue is problematic, as in this case, a trial or hearing, where expert testimony can be presented, is necessary to resolve the matter. …

… The record does not reveal whether, on September 1, 1977, modern science could have determined that she was afflicted with any malady or that cancer was about to strike; yet, on that date, according to the majority, she lost her right to ever bring suit. While the stale claim rationale of Statutes of Limitations is a sound one, in this case, it is inapplicable. …

… This state of affairs is both illogical and unjust. The Court of Appeals has held that, in products liability cases, a cause of action accrues at the time of actual injury and not at the time the product was manufactured or sold, recognizing that it is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one. If the plaintiff in such a case safely used the product for years, the Statute of Limitations would only begin to run, because of a defect, when the defect caused an injury. Analogously, when a person comes into physical contact with a defective or dangerous chemical or drug, should not the measuring date for the Statute of Limitations be determined by when the substance actually has a deleterious effect on the body? As with any products liability case, is it not unthinkable, before plaintiff even has a cause of action, to time bar her from prosecuting a cause of action resulting from a mother’s ingestion of DES? “

Read the full paper FLEISHMAN v. ELI LILLY & CO. on Leagle.

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1983 DES Case: Mathis v. Eli Lilly & Co.

This case was filed in a Tennessee state court by Mrs. Jennifer Mathis, joined in the suit by her husband, Barry Mathis, seeking damages for personal injury due to her exposure to diethylstilbestrol (DES), a drug developed by Eli Lilly as a synthetic hormone to prevent miscarriages. It is alleged that Mrs. Mathis’ mother took DES in May, 1955, while pregnant without knowledge that the drug DES may cause cancer in her offspring. Mrs. Mathis alleges that she did not know she had developed cancer (of the cervix) until July, 1980, some twenty-five years after the product was purchased and used by her mother during her pregnancy. Defendant – appellee Lilly filed a motion for summary judgment in the case, relying upon provisions of Tenn.Code Ann. § 29-28-103, which was originally enacted in 1978, and amended in 1979 by the addition of Section (b). The statute provides in its entirety:

29-28-103. Limitation of actions — Exception.

  • (a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.
  • (b) The foregoing limitation of actions shall not apply to any action resulting from exposure to asbestos.

The trial court granted appellee’s motion for summary judgment and appellants appeal. They argue that the statute violates Article 1, Section 20, and Article 1, Section 8, of the Tennessee Constitution, as well as the Fourteenth Amendment to the United States Constitution.

MATHIS v. ELI LILLY & CO., Leagle, 1983853719F2d134_1823, October 7, 1983.

While the Tennessee statute in question imposes generally a ten-year limit on bringing actions against a manufacturer or seller such as Lilly, dating from the time that its product was “first purchased for use,” there are exceptions written in the law to this general limitation.

  1. The first exception may lessen the period of repose if the “anticipated life of the product” is less than nine years, because the action would then have to be brought within a year after the expiration of the anticipated life.
  2. The next exception applies in the case of injury to minors to make it clear that this statute does not abrogate the usual special consideration given to minors to extend the period in which they may sue to one year after attaining the age of majority Thus, it may have been possible for appellant, under this statute, if valid as written, to have sued at any time within nineteen years after her birth if an injury had allegedly occurred within that time, instead of ten years after May, 1955, when the DES was purchased for use.
  3. A third exception to the general ten-year limit was adopted by the 1979 amendment to the Act in question by the addition of section (b), which excepts “any action resulting from exposure to asbestos.”

In his ruling granting appellee’s motion, the trial judge noted that “plaintiffs set forth their constitutional theories in a 6 page brief.” He cited only two Tennessee state court decisions and six federal court cases in his order granting judgment for Lilly, which is the basis for this appeal. Appellants’ brief cites only one Tennessee case (different from the two mentioned in the opinion and order appealed from) and three federal cases, and no other authorities. If this Court were to decide the case based on the precedents cited by the trial court and by appellants, the decision may not have been as detailed, but we must look beyond these cited authorities in deciding the difficult issues involved.

While we have found it necessary to look beyond the authority cited by the parties, we have notconsidered, and do not decide, issues which the parties did not raise and brief. Thus, we intimate no opinion on the constitutionality of the challenged statutes on other grounds, not raised and not discussed herein. ” …

… Continue reading the full paper MATHIS v. ELI LILLY & CO. on Leagle.

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1983 DES Case: McElhaney v. Eli Lilly & Co. Memorandum

Plaintiff Patricia Smith McElhaney is a “DES Daughter“; she was exposed to the prescription drug diethylstilbestrol (DES) in utero in 1949. She now complains of injuries allegedly caused by such prenatal exposure. Defendant Eli Lilly & Co. admits that it manufactured and marketed the DES which plaintiff’s mother ingested in 1949 Plaintiff’s cause of action is based solely on strict liability in tort. She contends that defendant’s DES, as marketed in 1949, was in a defective and unreasonably dangerous condition to the consumer. Defendant in turn argues that DES is an “unavoidably unsafe” drug but was not, in 1949, unreasonably dangerous because its harmful side effects relevant here were not then foreseeable by Lilly.

McELHANEY v. ELI LILLY & CO., Leagle, 1983803575FSupp228_1749, November 25, 1983.

When this case was called for trial plaintiff, contending that she had no burden to prove that Lilly knew, or should have known in 1949, of the side effects complained of, conceded she had no evidence on the foreseeability issue Lilly thereupon moved for a directed verdict on the ground that such proof was essential to plaintiff’s cause of action. …

In cases involving prescription drugs “the manufacturer must warn the physician, not the patient”. The prescribing physician acts as a learned intermediary between the patient and manufacturer. In this way, the consumer is able to determine the risks associated with the prescription drug.

In the present case, it is agreed that at the time plaintiff’s mother ingested defendant’s DES, there were no warnings given by defendant of potential adverse side effects such as those allegedly suffered by plaintiff. The issue presented is whether defendant owed a duty to warn in 1949 of such potential side effects.” …

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

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1983 DES Case: McElhaney v. Eli Lilly & Co.

Plaintiff initiated this diversity action (28 U.S.C. Sec. 1332) seeking damages because of her vaginal and cervical adenosis, allegedly caused by her exposure to diethystilbesterol (DES). She admittedly cannot identify the manufacturer of the DES she alleges caused her condition. Defendants have now filed a joint motion contending that each are entitled to summary judgment in light of plaintiff’s inability to prove that any of them manufactured or sold the DES involved here. …

McELHANEY v. ELI LILLY & CO., Leagle, 1983829564FSupp265_1789, May 16, 1983.

The plaintiff has based her cause of action on breach of warranty, negligence, strict liability and theories of enterprise liability, concert of action, market share liability and alternative liability. It is clear that in a diversity action a United States District Court must follow the substantive law of the forum. In the absence of a controlling rule as set forth either by statute or by the state’s highest court, the United States District Court must apply the rule it believes the State Supreme Court would adopt.

… The defendants in the case at bar are or were manufacturers of the drug DES. The above rule does not relieve the plaintiff of proving DES caused her injury or lessen the burden as to any other element necessary under negligence, or strict liability theories. It does, however, remove from the plaintiff the burden of identifying the source of the DES which allegedly injured her and would shift to each defendant, the burden of proving it was not the source of the DES to which plaintiff was exposed. ” …

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

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