Monday, March 10, 2014

After all these years, a new claim against the manufacturers of DES

You may remember from your law student days having read two important cases involving claims against manufacturers of a drug usually referred to as "DES."  This was a drug often prescribed to pregnant women up until the 1970s . An estimated 4 million people were exposed in utero to the effects of DES, but because the effects continued to be transmitted to the children of those exposed in utero, the effects could continue to cause problems for many more people over generations.

How long would a manufacturer of the drug be on the hook for those possible injuries?

Well, in terms of "cause in fact", as long as the plaintiff was able to prove the connection between the injury and the exposure to the drug.  This would be a question of fact and, ultimately, depend on the availability and credibility of that evidence.  And, to help plaintiffs support the claim if they did not have all the evidence available, one of those two famous cases, Sindell v. Abbott Laboratories, created the concept of "market share liability", which made it easier for plaintiffs to support the element of cause in fact against drug manufacturers.  Interestingly, however, the concept of market share liability has not had the effect some thought (or feared) it would have for future cases, having been limited to DES cases and rejected in almost every other case it has been argued, most notably in lead paint cases.

The other case, Enright v. Eli Lilly, is used in a number of Torts textbooks to illustrate the difference between cause in fact and proximate cause because it holds that, in terms of policy (whether you call it duty or proximate cause) the court would not recognize a cause of action for plaintiffs who were not exposed to the drug in utero, even if they could make the factual connection between their injuries and the effects of the drug.

Given that the use of the drug was discontinued in the 1970s and that courts have shown to be uncomfortable with the idea of extending possible liability over generations, I thought the days of claims for injuries caused by DES were over (and with them, the notion of market share liability).

I guess I didn't realize that there could still be some people out there who could claim they had been exposed to DES in utero.  For this reason, I was surprised to read a story a few days ago about a new claim against all of the former manufacturers of DES filed by a woman in North Carolina arguing that her breast cancer was caused by the effects of the DES her mother took while she was pregnant in 1965.   You can read the full story here.

No comments: