Jolly v. Eli Lilly & Co.

Facts

The Plaintiff, Jolly, was born in in 1951. While in utero, her mother took the synthetic drug estrogen diethylstilbestrol (DES) for the prevention of miscarriage. In 1972, the Plaintiff learned that daughters whose mothers took DES could suffer injuries. She went to a clinic for a check-up where she was diagnosed with adenosis, a precancerous condition that required careful monitoring. In 1976, she had an abnormal pap-smear and underwent a surgical procedure to remove abnormal tissue. In 1978, the Plaintiff underwent a complete hysterectomy and a partial vaginectomy in order to remove malignancy. As of 1972, the Plaintiff was aware or at least suspected her condition was a result of her mother’s taking of DES during pregnancy.

In 1972, the Plaintiff started to attempt to discover the manufacturer of the DES ingested by her mother. Her efforts later increased in 1976 and 1978 when her condition became acute. Unfortunately, the doctor who described her mother the drug died and the Plaintiff was unable to to locate his records. The dispensing pharmacist did remember filing the DES prescription, he did not recall having records relating to the specific brand used. This was not unusual since DES was a drug that hundreds of pharmaceutical companies made from a single agreed formula. As of 1978, the Plaintiff was aware of one or more pending DES suits alleging that DES manufacturers were liable to those injured due to their failure to test or failure to warn. However, Plaintiff believed she had no cause of action if she could not identify the particular manufacturer of the drug her mother took during pregnancy. Her efforts to identify that manufacturer were unsuccessful and the Plaintiff did not file suit.

In March 1980, the Supreme Court of California held in a case that if a plaintiff could not identify the precise drug manufacturer of the ingested DES, she could state a cause of action against the DES manufacturers of a substantial percentage of the market share of the drug. Defendants would be liable assuming the remaining material allegations in the complaint were proven unless they could disprove their involvement. A year after this decision, the Plaintiff brought an action against a number of DES manufacturers.