Enright v. Eli Lilly & Co.
COA NY - 1991
- P's grandmother ingested DES as a miscarriage preventative that resulted in the birth of P's mother.
- P's mother developed abnormalities of her reproductive system due to exposure to DES and these abnormalities led to the premature birth of P. P was born with cerebral palsy.
- Trial court dismissed P's claims.
- Appellate court affirmed, but reinstated strict products liability count.
- NY COA reversed, dismissed all claims by P.
- Can a child sue for injuries suffered as a result of a preconception tort committed against the mother?
- A child cannot sue for injuries suffered as a result of a preconception tort committed against the mother.
- In Albala, the court declined to recognize a cause of action brought by the child.
- As a matter of public policy, to recognize a cause of action on behalf of a child would require the extension of tradition tort concepts beyond manageable bounds.
- There are staggering implications of any proposition which would honor claims assuming the breach of an identifiable duty for less than a perfect birth.
- There is no reason to treat this case any differently just because it involves DES.
- The rippling effects of DES exposure may extend for generations; thus, liability has to be confined within manageable limits.
- D is liable to all those injured by exposure, a class whose size is commensurate with the risk created.
- The FDA is the watchdog over this area; thus, there is less of a need for the courts to promote prescription drug safety.
- Concepts of reasonable care and foreseeability are still necessary even under strict products liability cases.
- Public policy favors the availability of prescription drugs even though most carry some risks. There are dangers of over-deterrence here.