In Re DES Cases (1971 to 1991)

Abstract

This diversity case presents a classic illustration of why traditional limits on personal jurisdiction must be modified for mass torts. The torts alleged here involve numerous claims of injury from exposure in utero to diethylstilbestrol (DES). DES was developed and tested in laboratories throughout the country and the world. Permission to use it was sought and obtained from the federal Food and Drug Administration by pharmaceutical companies scattered across the nation. Some companies conducted national advertising and a national corps of salespersons hawked the drug in doctors’ offices in every part of the country. Discussions among medical specialists and word-of-mouth information traded among doctors and patients led to national acceptance of the drug as useful for the prevention of miscarriages. Even companies producing exclusively for local markets relied on the nationally developed understanding and consensus about DES and used knowledge and chemicals from all parts of the United States and the world. Thousands of persons in hamlets and cities across the country are now claiming to have been adversely affected by exposure to the drug. In short, the technology, marketing, sociology, and possible ill effects of DES knew no state boundaries. The national nature of the resulting toxic tort litigation must be reflected in the law’s treatment of jurisdictional issues.

IN RE DES CASES, United States District Court, E.D. New York,
Leagle, 19921341789FSupp552_11225, April 13, 1992.

Motions to dismiss for lack of jurisdiction raise the following questions:

  • Do the complaints against the moving defendants state a claim under New York’s substantive laws?
  • Are those laws constitutional?
  • Are New York’s substantive laws applicable under New York’s choice-of-law rules?
  • Are those choice-of-law rules constitutional?
  • Do New York’s jurisdictional statutes provide for jurisdiction over a successor corporation licensed to do business in New York for causes of action relating to the activities of its predecessor corporation, which never sold DES in New York and was never present in New York?
  • Does New York’s long arm statute provide for jurisdiction over a manufacturing corporation which never sold DES in the New York market and was never present in New York?
  • Are New York’s jurisdictional statutes constitutional?
  • In light of the specific characteristics and history of the moving defendants, and of all the parties and the suit, would requiring the defendants to litigate in New York be fair so that jurisdiction is not barred by the Constitution and should not be declined under a prudential theory akin to forum non conveniens?

All must be answered “yes”.

TABLE OF CONTENTS

I. INTRODUCTION
II. FACTS
A. Background
B. Present Actions
C. Motions
III. NEW YORK SUBSTANTIVE LAW AND RULES AFFECTING SUBSTANTIVE RIGHTS
A. History of New York Products Liability Law and Mass Tort Law Generally
B. New York DES Law
C. Constitutionality of New York DES Law
IV. CHOICE OF LAW
A. Erie Doctrine
B. New York Choice-of-Law Rules in Mass DES Torts
C. Constitutionality of New York Choice-of-Law Rules in Mass DES Torts
V. PERSONAL JURISDICTION
A. New York Jurisdictional Statutes
1. C.P.L.R. § 301
2. C.P.L.R. § 302
B. Constitutionality of New York Statutes
1. Current Due Process Doctrine and Problems Raised by Its Application to Mass Torts
2. Case Law in Non-Mass Torts
a. Pennoyer and Its Problems
b. Pennoyer to International Shoe: The Emergency of Fairness Inquiry
c. International Shoe: Sovereignty, Fairness and Nexus Requirements
3. Sovereignty and Fairness in Mass Torts
4. Due Process Standard for Mass DES Torts
VI. APPLICATION OF LAW TO FACTS
A. Boehringer
1. Failure to State a Claim
2. Personal Jurisdiction
B. Boyle
1. C.P.L.R. § 302(a)(3)(ii)
2. Due Process
VII. CONCLUSION

…continue reading the full paper IN RE DES CASES, on Leagle.

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