Matter of DES Market Share Litigation

Women (patients) (plaintiffs) who were injured when they took the drug DES during their pregnancies brought products-liability claims against various DES manufacturers (defendants) to recover damages. However, many patients did not know which manufacturer made the DES that injured them. To address this problem, in Hymowitz v. Lilly & Co., the New York Court of Appeals adopted a market-share-liability remedy. In accordance with Hymowitz, the supreme court severed the market-share issue from every pending New York DES case and coordinated the actions so that the market-share issue could be resolved in one proceeding. The parties hotly disputed the market-share issue, with both sides expected to submit substantial evidence (including numerous expert witnesses) in support of their positions. The patients requested a jury trial regarding market share, but the supreme court ruled that there was no jury-trial right because (1) the market-share theory was a newly created equitable remedy that did not exist at common law and (2) the market-share determination was akin to a pretrial proceeding rather than a true trial. The appellate division reversed. Per the appellate division, Hymowitz did not create a new equitable remedy but rather reflected the modification of an existing legal cause of action to recover money damages for personal injuries, for which the patients had a jury-trial right. The manufacturers appealed, citing, among other things, the Court of Appeals’ repeated use of the word “equitable” in Hymowitz.