DES LIABILITY: NEW YORK DECISION SUPPORTS POOLING LIABILITY

DES LIABILITY: NEW YORK DECISION SUPPORTS POOLING LIABILITY based on the national market share controlled by DES (diethylstilbestrol) manufacturers during the 24 year period (1947-1971) the drug was marketed to prevent miscarriages. In a ruling handed down April 7 by New York State Circuit Court Judge Wachtler, the court will "adopt a market share theory, using a national market, for determining liability and apportioning damages in DES cases in which identification of the manufacturer of the drug that injured the plaintiff is impossible."

The opinion explains that the court adopted the national market share theory to establish "an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility to plaintiffs' injuries among defendants." However, using the national standard "will likely result in a disproportion between the liability of individual manufacturers and the actual injuries each manufacturer caused in this state," the court concedes.

The New York decision closely follows a recent California Supreme Court ruling which stated that a DES manufacturer's liability would be strictly limited to its market share, even though less than 100% recovery for the plaintiff may result. The New York opinion likewise states: "The liability of DES producers is several only, and should not be inflated when all participants in the market are not before the court in a particular case."

Only those DES manufacturers that marketed the drug under the pregnancy indication will be held liable. On the other hand, companies that marketed DES for pregnancy use, but now attempt to establish that their drug did not cause a particular injury, will not "escape liability solely because it manufactured a more identifiable pill, or sold only to certain drugstores," circumstances that "in no way diminish the culpability of a defendant for marketing the product," the ruling says.

A second issue discussed in the opinion is the constitutionality of a controversial 1986 state law that, in the court's words, allows for the "revival for one year of actions for injuries caused by DES that were previously barred by the statute of limitations." The court found the statute to be constitutional under state and federal law, reasoning that some plaintiffs did not learn of their DES-related injuries until the statute of limitations had expired; therefore, "it would be more fair for all plaintiffs to uniformly now have one year to bring their actions."

New York has nearly 500 additional DES actions pending in the courts. As a result of the 1986 law, the court explains: "it is estimated that eventually 800 DES cases will be brought under the revival portion of this recent statute." Some 300 companies manufactured DES over the 24 year years it was marketed for pregnancy use. Companies named in the New York opinion include Lilly, Upjohn, Abbott, Squibb, Rorer and Merck.