Hymowitz v. Eli Lilly & Co. 1989 Ct. App. NY 73 NY2d 487- Involves daugheters, whose mothers wanted to prevent miscarriage by taking a drug
- Mothers took the drug DES, 1000s of women were prescribed this. 200 Manufacturers marketed the product for miscarriage, show to casuse cancer
- Now the daughters are older and suing
- They were born presumably healthy
- But then developed cancer in their 20s
- Included by the DES
- AND the DES was useless in preventing miscarriages
- Over 200 manufacturers of DES
- Each manufacturere moved for summary judgement
- Because you cant prove which manufactuer made the drug your mom took
- Each manufacturere moved for summary judgement
- Women couldnt prove which drug manufacturer made the particular DES that harmed them
- Pharmacies had no records back then
- No way to prove cause in fact 🙁
- Trial Ct SUMMARY JUDGEMENT for D 🙁
- says no liability because :fairness disapears with the decreasing probability that any one of the D actually cause the injury
- Also statute of limittions has run
- Legislature said in this case the ordinary SofL should be waved in a case like this
- Summers v Tice – Alternative Liability
- Doesn apply because it rests on the notion that there was a small number of D and the probability that one D injured the P is high, NOT THE CASE HERE (also in AL Defendant has better access to the facts, here the manuf are too old to have evidence)
- Not fair to use Alternative Liability becasue the chances are 1/200 that the D caused harm
- Concerted Action Doctrine – “having an understanding, express or tacit, to participate in ‘a common plan or design to commit a tortious act’” (Speed Racers)
- Here there is no common plan for to commit a tortious act
- They are competitors, of course no common plan 🙁 concerted action fails
- Ct App. we need to “overcome the “inordinately difficult problems of proof” so that the P arent required to bear losses
- CURRENT DOCTIRNES PROVIDE NO RELIEF 🙁
- WE DONT LIKE THAT
- But we are going to push the borders, we dont want to go any further
- because the product generic, that cause injury many years later
- Lets look to MOSS opinion in Sindell
- If there is a substantial share of the Miscarriage marketing then you are liable in this case
- Whats the market? WHat is a substantial share?
- Well market is notailanl, but substantial still not clrear.
- Is there joint and several liability
- NY/CA adopt same anser to JSL–> Several Only
- NY/CA both say National Market Share
- AND say IT IS ONLY SEVERAL (10% market –> 10% share, not liable for any insolvent parties)
- CALIFORNIA Must SUE a substantial share OF THE MARKET, but adds all D up, if they have 1% sue all 100 for 100% “share”
- CA If you prove its not your pill then you are off the hook
- NEW YORK – DOES NOT REQUIRE substantial share of the market BE SUED IN THE ACTION
- NY EVEN IF ITS NOT YOUR PILL YOU ARE LIABLE
- CALIFORNIA Must SUE a substantial share OF THE MARKET, but adds all D up, if they have 1% sue all 100 for 100% “share”
- AND say IT IS ONLY SEVERAL (10% market –> 10% share, not liable for any insolvent parties)
- NOTE – An award based on JSL would be fine here because any manufacturers still around should have to bear FULL costs proportionally to cover 100% and pay the portion of now insolvent manuf
- Ct disagrees becasue the manufacturers are Several only (not JSL)