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Hymowitz v. Eli Lilly & Co.

(1989)

New York Court of Appeals - 73 N.Y.2d 487

tl;dr:

Plaintiffs suffered injuries as a result of a drug their mothers took, but were unable to prove which drug manufacturer made the specific pill taken; Court says Plaintiffs can still recover under market share liability.

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Facts & HoldingHymowitz v. Eli Lilly & Co. case brief facts & holding

Facts:Because DES was not patented, many pharmaceutical companies produced it....

Holding:The New York Court of Appeals came up with a...

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Hymowitz v. Eli Lilly & Co. | Case Brief DeepDive
Majority opinion, author: Chief Judge Wachtler.
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The court is handling 500 cases where plaintiffs claim harm from the drug DES taken by their mothers during pregnancy. The court adopts a market share theory to determine liability and damages when the manufacturer of the drug cannot be identified. The Legislature's revival of actions for DES-related injuries previously barred by the Statute of Limitations is constitutional. The court recognizes that it is difficult for most DES victims to identify the manufacturer responsible for their injury, but the question of whether plaintiffs can recover for DES injuries without identifying the manufacturer remains unresolved. Defendants moved for summary judgment dismissing the complaints because plaintiffs could not identify the manufacturer of the drug that allegedly injured them. The lower court erred in denying the summary judgment motions as the question of whether plaintiffs can recover for DES injuries without identifying the manufacturer remains unresolved.

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Opinion (Concurrence), author: Mollen, J.
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The New York Court of Appeals is considering the constitutionality of the revival statute for DES claims and the appropriate means for injured parties to recover for their injuries caused by DES. The majority has chosen the market share theory of liability as an appropriate means for DES plaintiffs to seek recovery. The market share concept of liability has emerged in products liability cases due to the mass production and marketing of drugs and fungible goods, which can make it difficult for consumers to trace harm to a specific manufacturer. In DES cases, it is practically impossible for most plaintiffs to establish the traditional tort element of causation due to the generic form of most DES pills, the unavailability of records, and the lengthy passage of time. This has led to the recognition by several jurisdictions that the burden of proof for causation should be shifted to the defendants through the market share theory of liability. The Sindell court held that once a plaintiff has joined a "substantial share" of the DES manufacturers in the action and has established that the sustained injuries were caused by the ingestion of DES by the plaintiff's mother during pregnancy, the burden of proof shifts to each defendant to demonstrate that it did not produce or market the pill ingested by the plaintiff's mother.

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