In re DES Litigation

Numerous pharmaceutical companies produced a synthetic estrogen called DES marketed for miscarriage prevention between 1941–1971. The Food and Drug Administration discovered that DES caused cancers in women whose mothers had taken the drug. Thus, DES was banned in 1971. By the time the women harmed discovered the injury, there was no way to determine which manufacturer produced the drug their mothers had ingested. The California Supreme Court fashioned the market-share theory of liability, under which manufacturers could be held severally liable for harms caused by the drug based on their percentage of the drug’s market share. Sindell v. Abbot Laboratories, 607 P.2d 924 (1980). Manufacturers could avoid liability only if they could prove they could not have manufactured the drug that harmed the plaintiffs. The market-share theory was followed in New York as well. In this case, a group of women (plaintiffs) sued 33 drug manufacturers for DES injuries in federal court in New York. Delaware corporation Boehringer (defendant) never sold DES, but its predecessor had sold the drug. Beohringer’s predecessor had never done business in New York and had no significant contacts with the state. Boehringer sought dismissal for lack of personal jurisdiction and failure to state a claim. The judge denied the motion, concluding that jurisdiction and application of New York substantive law to Boehringer were constitutional. The plaintiffs settled with the other 32 manufacturers and declined to prosecute Boehringer. The district court dismissed for failure to prosecute, and Boehringer appealed, arguing that the judge’s conclusions could harm it in 42 outstanding DES cases against it in New York.