Nature of the Case
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Facts
In early 1954, P's mother, then pregnant with her, was prescribed DES to prevent a miscarriage. In July 1973, when P was 18 years old, it was discovered that P had cancer of the cervix. A radical hysterectomy was performed and, as a result, P will be unable to bear children. P instituted this action alleging that her mother's ingestion of DES while pregnant was the proximate cause of the injuries she sustained. Because P was unable to clearly identify the manufacturer of the DES her mother took, P joined as defendants nine of the approximately 147 pharmaceutical companies manufacturing and marketing DES for the prevention of miscarriages in pregnant women in 1954. P alleged a concerted action theory of liability because Ds had 'combined and conspired to obtain the approval for DES' without adequate testing. P was in a line of 15 plaintiffs who has brought similar actions in the First Department in New York. Bichler v. Lilly & Co., 55 N.Y.2d 571 (1982) was tried first. The jury returned a general verdict and answered seven special interrogatories in Bichler's favor as a basis for imposing liability on D. P moved for partial summary judgment. The court in P's action gave collateral estoppel effect to six of the Bichler jury's findings. D appealed, and the appellate division affirmed. D appealed. D contends that the decision in Bichler should not be given collateral estoppel effect because (1) the cases do not raise identical issues, (2) there are indications that the Bichler verdict was based on jury compromise, (3) there are adjudications inconsistent with Bichler on each of the issues involved and (4) the Bichler decision is based on an unresolved and novel application of the law of concerted action not expressly adopted in New York.
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