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.
Procedural History:
Trial court dismissed P's claims.
Appellate court affirmed, but reinstated strict products liability count.
NY COA reversed, dismissed all claims by P.
Issues:
Can a child sue for injuries suffered as a result of a preconception tort committed against the mother?
Holding/Rule:
A child cannot sue for injuries suffered as a result of a preconception tort committed against the mother.
Reasoning:
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.
