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Hymowitz v. Eli Lilly & Co.

Citation. 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941 (N.Y. 1989)
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Brief Fact Summary.

Over 500 individuals sued for injuries resulting from the latent effects of a drug their mothers used as a miscarriage preventative but found it difficult to link the specific manufacturer to a particular case and were often barred by the statute of limitations.

The legislature amended the statute of limitations rule to permit cases that had been previously banned for one year.

Synopsis of Rule of Law.

When causation cannot be determined for a defendant in a DES case, a defendant will be held severally liable based on its proportion of DES produced and marketed to the national market as a pregnancy drug during the relevant time period.


Hymowitz and over 500 similar actions sued in New York courts for injuries resulting from the latent effects of DES, a drug previously used as a miscarriage preventative, after their mothers used it during pregnancy. However, the plaintiffs faced two main barriers to recovery: (1) tying the specific manufacturer to a particular case was generally impossible; and (2) many claims were barred by the statute of limitations before injury was discovered.

About 300 companies produced the drug during the 24 years that DES was sold for pregnancy use, and the long latency period component made it difficult for the mothers to remember which manufacturer produced the drug they took. Additionally, the statute of limitations‘ period began upon exposure to the toxic substances and not discovery of the injury resulting from the toxic substances.

The New York legislature amended the statute of limitations rule, such that the period began at discovery of the latent effects of exposure to the toxic substance and permitted causes of action for exposure to DES that had been previously banned for one year.


May a DES plaintiff recover against a DES producer when identification of the producer of the specific drug that caused the injury is impossible?

If a DES plaintiff can so recover, how can the loss be fairly and equitably apportioned among the available defendants?



Yes, a DES plaintiff may recover against a DES producer despite being unable to identify the specific DES producer that caused the injury to the specific plaintiff.

The DES plaintiff may recover under the market share concept based on the national market to fairly and equitably apportion liability among the available DES producers.


Justice Mollen

Argues for a Market Share Concept based on the national market that shifts the burden of proof on the issue of causation to DES producers and imposes liability on all DES producers who produced and marketed DES for pregnancy purposes, except those who could prove that their product could not have caused the injury.

DES plaintiffs would be required to establish that: (1) the plaintiff’s mother ingested DES during pregnancy; (2) the plaintiff’s injuries were caused by DES; and (3) the defendant(s) who produced and marketed DES for pregnancy purposes. Then, the DES producer would have the burden of proof to establish by a preponderance of the evidence that the plaintiff’s mother could not have ingested their particular pill. Only those DES producers who failed to establish the burden of proof would be required to pay their respective share of the plaintiff’s damages, as measured by their share of the national market of DES produced and marketed during the relevant period, and those DES producers should be held jointly and severally liable to ensure that plaintiffs receive full recovery of their damages.


DES plaintiffs cannot recover under the tort doctrine of alternative liability because there are many possible wrongdoers who entered and exited the market over more than two decades, such that the defendants are not in a better position to ID the wrongdoers than the plaintiffs and there is no realistic chance that all of the possible wrongdoers will come before the court.

Likewise, DES plaintiffs cannot recover under the tort doctrine of concerted action because nothing in the record indicates that drug companies were engaged in a common plan or design to market DES for pregnancy use without taking proper steps to ensure the drug’s safety.

However, plaintiffs injured by DES deserve relief because the injury to plaintiffs was latent and the legislature demonstrated its intent to give these plaintiffs a chance by amending the statute of limitations provision to revive DES actions. Given these special circumstances, the loss should be borne by DES producers who manufactured the drug rather than those who were injured by its use, even though the precise manufacturer cannot be identified in a particular action.

The court adopted a market share concept to apportion liability based on the national market. Requiring plaintiffs to establish a separate market share matrix is an unfair and perhaps impossible burden to routinely place upon litigants in individual cases, and a case-by-case assessment would unfairly burden the courts given the number of DES cases pending in New York at the time.

The market share concept apportions liability not based on causation, but rather the overall culpability of each DES producer, measured by the amount of risk of injury each DES producer created to the public.

Note: A DES producer cannot be held liable if it did not market DES for pregnancy use. Additionally, DES producers are only Severally Liable (not joint) and should not be inflated when all participants in the market are not before the court in a particular case.

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