Hymowitz v. Eli Lilly & Co. case brief

Hymowitz v. Eli Lilly & Co. case summary
73 N.Y. 2d 487 (1989)

SUBJECT: Market Share Liability

FACTS -Multiple manufacturers made DES, some who sold it before for a range of maladies and others that sold it later during pregnancy to prevent miscarriages.
-Several people sued for injuries from DES that their mothers had ingested while pregnant, but no _ in any of the cases could identify the exact manufacturer of DES pill taken by his or her mother.

Reasons for the problem identifying the manufacturer:

1. The pills had the same chemical composition
2. The druggists filled prescriptions from whatever was on hand.
3. Drug companies continuously entered and left the DES market.
4. Women did not remember who manufactured because the injuries occurred many years later.

PROCEDURAL HISTORY-The trial court denied motion for summary judgment made by defendants, despite the inability of the Ps to identify which company manufactured the exact pill that caused the injury

ISSUEMay a plaintiff recover against several drug manufacturers where the identification of the producer of the specific drug that caused the injury is impossible?

HOLDING
Yes, a P can recover against several drug manufacturers where it is impossible to identify the producer of the specific drug which caused the injury.

ANALYSIS:

-If the plaintiffs can prove that all the manufacturers produced a defective product, then all of the manufacturers will be liable for the plaintiff’s injuries in proportion to each manufacturer’s market share of that product at the time of the injury
-Alternative liability does not work in this case, because:

1.  Unlike the probability in the other case, the fact that there are so many defendants makes the likelihood that any one caused the P’s injury significantly diminished
2.  This doctrine is based on the premise that the defendants have better info than the ∏, but that is not true in this case
3.  Concerted action won’t work

-This doctrine provides for joint and several liability in cases where the Ds have a tacit or express understanding to commit a tortuous act—no evidence of that exists in this particular case.
-However, the injured parties should be able to get some relief (other courts have not agreed with this).

-The drug company should not get away with it, just because the negative effects do not show up for years or because so many parties contributed to the harm
-These companies that profited from this drug should bear the loss suffered by injured plaintiffs
-Justification of the market share approach:  a manufacturer’s liability will approximate the number of injuries it actually caused

a. Use national market share
-Manufacturer can escape liability if he can prove that he did not market the drug for use during pregnancy.
-Can’t escape liability if he can show that his drug did not cause the plaintiff’s injury, because this is liability based on market share and risk produced rather than actual causation.
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