Torts Keyed to Dobbs
Hymowitz v. Eli Lilly & Co
The Food and Drug Administration approved the manufacture and marketing of the drug diethylstilbestrol (DES) in 1941 for use as a generic drug in the prevention of miscarriages. Approximately 300 companies manufactured the drug, and as it was generic no single company held patent. It was found later that DES created a high risk of vaginal cancer in some female children of women who had used the drug. Because so many companies manufactured and marketed the drug, over several years and for varying lengths of time, it was often impossible for potential plaintiffs to identify exactly which company had manufactured the particular batch that the plaintiff had ingested. The cases at bar were brought by multiple plaintiffs, the daughters of women who had used DES. At trial, the manufacturers moved for summary judgment on the grounds that it could not be determined with specificity they any one of them was responsible for the injuries sustained by a particular plaintiff. The motions were denied and the Appellate Division affirmed. New York’s highest court reviewed.
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