Hymowitz v. Eli Lilly & Co.

New York Court of Appeals · 1989 · Torts

Tortscausationmarket share liabilityDESnational market shareDESdiethylstilbestrolcausation

Facts

Plaintiffs alleged injuries from DES taken by their mothers during pregnancy. DES was chemically identical across manufacturers, was produced by approximately 300 manufacturers over many years, and pharmacists commonly filled prescriptions with whatever brand was on hand, making later manufacturer identification generally impossible. Because DES injuries were latent, memories and records had disappeared by the time injuries were discovered. The Legislature later revived for one year previously time-barred DES actions while adopting a discovery rule for latent toxic exposure cases.

Issue

Whether a plaintiff injured by DES may recover when she cannot identify the manufacturer of the specific DES that caused her injury, and if so, what liability framework should govern. Also, whether the Legislature's one-year revival of previously time-barred DES claims is constitutional under state and federal due process and equal protection guarantees.

Rule

In DES cases where identification of the manufacturer that caused the plaintiff's injury is impossible, New York adopts a market share theory based on the national market to determine liability and apportion damages. Liability is several only and corresponds to each defendant's share of the national DES market for pregnancy use; a defendant may avoid liability only by proving it was not part of the market for DES sold for pregnancy use, but a defendant that was part of that market may not exculpate itself by showing it did not make the specific pills that injured the plaintiff. The Legislature may constitutionally revive previously time-barred DES claims where exceptional circumstances and serious injustice justify the remedy, and the DES revival statute satisfies that standard.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Buffalo, Nora Levin developed a latent reproductive injury allegedly caused by a synthetic miscarriage-prevention drug her mother took during pregnancy in the 1960s. The drug was chemically identical across hundreds of manufacturers, the prescribing doctor is dead, the pharmacy closed decades ago, and no records remain identifying the brand dispensed.

If Nora sues several manufacturers in New York but cannot identify the specific producer, which approach is most consistent with the governing rule?

Explanation. The majority created a limited remedy for DES cases in which identification of the specific manufacturer is impossible. In that singular setting, New York allows recovery under market share liability using the national market. The court rejected the idea that traditional product identification always bars recovery here, rejected concerted action based on parallel conduct alone, and did not require joinder of all possible manufacturers.