Hymowitz v. Eli Lilly Co.

73 N.Y. 2d 487, 539 N.E. 2d 1069, 541 N.Y.S 2d 941 (1989)

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Nature of the Case

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Facts

Ps’ ingested DES, a preventative miscarriage drug, during pregnancy. DES was invented in 1937 by British researchers but never patented. Approximately 300 manufacturers produced the drug, with companies entering and leaving the market continuously during the 24 years that DES was sold for pregnancy use. The long latency period of a DES injury compounds the identification problem; memories fade, records are lost or destroyed, and witnesses die. Thus, the pregnant women who took DES generally never knew who produced the drug they took, and there was no reason to attempt to discover this fact until many years after ingestion, at which time the information is not available. This long latency ran past the statute of limitations to bring claims. Ps sued Ds for damages related to DES. D moved for summary judgment; the trial court denied that motion. The Appellate Division affirmed. D appealed.