Published on:

Thirty years ago, a mother ingested a pill called diethylstilbestrol

Thirty years ago, a mother ingested a pill called diethylstilbestrol (DES) during her pregnancy which resulted in the birth of the complainant. The woman alleges that because of her mother’s uterus’ exposure to DES, the woman developed a variety of abnormalities and deformities in her reproductive system. As a result, several of her pregnancies terminated in spontaneous abortions and another resulted in the premature birth. The pre-term granddaughter suffers from cerebral palsy and other disabilities that they attribute to her premature delivery, birth injury and ultimately, to the woman’s mother’s ingestion of DES.
The action was commenced by the woman and her husband individually and on behalf of their daughter against several manufacturers of DES. After the issue was joined, the accused parties sought summary judgment to dismiss the complaint. The accused parties contended that the actions were barred by the Statute of Limitations and by the complainants’ inability to identify the manufacturer of the drug ingested by the mother of the woman. In addition, the accused parties argued that the daughter’s claims of a preconception tort presented no cognizable cause of action.

The Supreme Court agreed with the accused parties that the claims stemming from the daughter’s injuries were not legally cognizable and the court dismissed all four causes of action brought on her behalf and those asserted by her parents for their emotional injuries resulting from the daughter’s birth. The manufacturer’s motions were otherwise denied, however, leaving intact the woman’s claims relating to her own injuries and her husband’s derivative claim based upon his wife’s birth injuries.

On cross appeals, the Appellate Division modified by reinstating the third cause of action in the complaint that cause of action brought on behalf of the daughter based upon strict products liability. The accused parties sought the Court for leave to appeal, which the Appellate Division granted.

It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent miscarriages. In 1971, the Food and Drug Administration banned the drug’s use for the treatment of problems of pregnancy after studies established a link between uterus exposure to DES and the occurrence in teen-age women of a rare form of vaginal and cervical cancer. The complainants allege that in uterus exposure to DES has since been linked to other genital tract aberrations in DES daughters, including malformations or immaturity of the uterus, cervical abnormalities, misshapen fallopian tubes and abnormal cell and tissue growth, all of which has caused in the population a marked increase in the incidence of infertility, miscarriages, premature births and ectopic pregnancies.
The Legislature and the Court have both expressed concern for the victims of the tragedy by removing legal barriers to their tort recovery–barriers which may have had their place in other contexts, but which in DES litigation worked a peculiar injustice because of the ways in which DES was developed, marketed and sold and because of the insidious nature of its harm. Hospitals in Nassau and Suffolk are aware of this.

More recently, the Court responded to the fact that–for a variety of reasons unique to the DES litigation context–a DES complainant generally finds it impossible to identify the manufacturer of the drug that caused her injuries. The Court held that liability could be imposed upon DES manufacturers in accordance with their share of the national DES market, notwithstanding the complainant’s inability to identify the manufacturer particularly at fault for her birth injuries.

Accordingly, the order of the Appellate Division should be modified, with costs to the accused parties. The manufacturers’ motion for summary judgment to dismiss the third cause of action is granted. The certified question of whether the Supreme Court has erred should be answered in affirmative.

Medicines are intended to relieve us of the pain that we experience during sickness. When they become harmful, a NYC Injury Lawyer at Stephen Bilkis and Associates can assist us in finding the right legal action to pursue.
In giving birth, women entrust their lives to their doctors but when medical malpractice arise, you may contact a NY Birth Injury Attorney and a New York Medical Malpractice Lawyer.

Contact Information