Bortell v. Eli Lilly & Co.

406 F. Supp. 2d 1 (2005)

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Bortell v. Eli Lilly & Co.

United States District Court for the District of Columbia
406 F. Supp. 2d 1 (2005)

Facts

Linda Bortell (plaintiff) was diagnosed as infertile, apparently due to her mother’s having taken diethylstilbestrol (DES) while she was pregnant with Bortell. Bortell sued Eli Lilly & Company (Eli Lilly) (defendant) for damages. Eli Lilly argued that Bortell could not prove that the DES taken by Bortell’s mother was manufactured by Eli Lilly. To that end, Bortell introduced affidavits of two former employees at the pharmacy at which Bortell’s mother filled her DES prescription. The affidavits, which were largely form documents pre-filled out, both stated that any DES prescription filled at the pharmacy at that time would have been filled with Eli Lilly DES pills. By the time of trial, approximately one year after the affidavits were signed, one affiant had died, and the other was suffering from dementia and was incompetent to testify. As a result, both affiants were unavailable to testify at trial. Eli Lilly presented evidence that information about the pharmacy’s wholesale supplier in the affidavits was inconsistent with what was found by a pharmacy investigator. Eli Lilly also presented evidence that the witness with dementia had begun to suffer from the disease prior to signing the affidavit. Eli Lilly filed a motion for summary judgment.

Rule of Law

Issue

Holding and Reasoning (Huvelle, J.)

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