” Plaintiffs on this appeal take issue with that portion of decretal paragraph 9 of the order which directed that:
“all complaints are hereby deemed amended so as to replace allegations of joint and several liability (and collective theories of liability) with allegations of several liability as defined by the decision in Hymowitz v. Eli Lilly and Company without further need of motion practice.”
Plaintiffs assert that the IAS court’s decision to dismiss causes of action based on a concerted action theory was not in accordance with the Court of Appeals’ decision in Hymowitz (supra). Plaintiffs also contend that they cannot be precluded from pleading and proving a concerted action theory of liability simply because no agreement has been proven in previous DES actions.
MATTER OF NEW YORK COUNTY DES LITIG., Leagle, 1991218168AD2d50_1209, May 28, 1991.
The Court of Appeals in Hymowitz (supra) was squarely confronted with the issue of the theory of liability under which DES litigants in New York could proceed where the identification of the drug manufacturer that injured plaintiff was impossible.“…
… “The court believed it was necessary to hold the liability of DES producers to be several only and avoid extending the theory of concerted action to DES cases because its concomitant requirement of joint and several liability expanded the burden of small manufacturers beyond a rational and fair limit.“…
… read the full paper MATTER OF NEW YORK COUNTY DES LITIG., on Leagle.