Hymowitz v. Eli Lilly & Co. 1989 Ct. App. NY 73 NY2d 487 – Case Brief

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
  • 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
    • 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
  • 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)

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