Matter of New York County DES Litigation


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

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

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

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

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