Grover v. Eli Lilly & Co.

Alice Robie Resnick, J.,

dissenting. I dissent from the result reached in this case, but more importantly from the superficial treatment of the issue which was certified to this court, in light of its complexity.3 It is critical that we consider the exact issue which the federal court certified to this court: “Does Ohio recognize a cause of action on behalf of a child born prematurely, and *763with severe birth defects, if it can be established that such injuries were proximately caused by defects in the child’s mother’s reproductive system, those defects in turn being proximately caused by the child’s grandmother ingesting a defective drug (DES) during her pregnancy with the child’s mother?”

As the devastating effects of DES continue to mount, so too does the legal debate concerning liability for the damage caused by the drug. For a detailed history of DES and its catastrophic effects, as well as its treatment by medical experts, see Hymowitz v. Eli Lilly & Co. (1985), 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069; Bilcher v. Eli Lilly & Co. (1982), 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182; Zafft v. Eli Lilly & Co. (Mo.1984), 676 S.W.2d 241; Collins v. Eli Lilly & Co. (1984), 116 Wis.2d 166, 342 N.W.2d 37. As the court in Enright v. Eli Lilly & Co. (1991), 77 N.Y.2d 377, 568 N.Y.S.2d 550, 570 N.E.2d 198, certiorari denied (1991), 502 U.S. -, 112 S.Ct. 197, 116 L.Ed.2d 157, has indicated, “[t]he tragic DES tale is well documented in this Court’s decisions and need not be recounted * * *. It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately three hundred manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent miscarriages. In 1971, the Food and Drug Administration banned the drug’s use for the treatment of problems of pregnancy after studies established a link between in útero exposure to DES and the occurrence in teen-age women of a rare form of vaginal and cervical cancer.” Id., 77 N.Y.2d 377 at 382, 568 N.Y.S.2d at 552, 570 N.E.2d at 200. Plaintiffs in Enright had alleged that “in útero exposure to DES has since been linked to other genital tract aberrations in DES daughters, including malformations or immaturity of the uterus, cervical abnormalities, misshapen Fallopian tubes and abnormal cell and tissue growth, all of which has caused in this population a marked increase in the incidence of infertility, miscarriages, premature births and ectopic pregnancies.” Id.

In the present case, June Rose ingested DES during her pregnancy in 1952 and 1953. June gave birth to Candace Grover on March 30, 1953. Petitioners maintain that as a result of her mother’s ingestion of DES, Candace was born with an incompetent cervix. Candace gave birth, prematurely, to Charles Grover, who was born with cerebral palsy. Petitioners assert Charles’ disabilities are directly and proximately attributable to his premature birth, which in turn was caused by his mother’s DES-induced incompetent cervix.

The majority is persuaded by the rationale of the New York Court of Appeals’ decision in Enright, supra. Although the basis of the holding is not entirely clear, the majority essentially holds that for public policy reasons *764there is no legal duty owed to a person who was not in útero at the time of injury.4 As does the court in Enright, the majority relies upon the DES manufacturers’ age-old public policy arguments that the imposition of liability would invoke “staggering implications” and “rippling effects,” or would require doctors to forgo certain treatments of great benefit to persons already in existence. But as the dissent in Enright cogently points out, “ * * * this sort of ‘floodgates of litigation’ [alarm] seems singularly unpersuasive in view of our Court’s repeated admonitions that it is not ‘a ground for denying a cause of action that there will be a proliferation of claims’ and ‘ * * * if a cognizable wrong has been committed, that there must be a remedy, whatever the burden of the courts.’ * * * Beyond that, however, when defendants’ arguments are applied here to urge that although the claims of DES daughters should be allowed the claims of the granddaughters should not be, their forebodings strike a particularly ironic note: i.e., the very fact of the ‘insidious nature’ of DES which may make the defendants liable for injuries to a future generation is advanced as the reason why they should not be liable for injuries to that generation.” Enright, supra, 77 N.Y.2d at 393, 568 N.Y.S.2d at 559, 570 N.E.2d at 207 (Hancock, J., dissenting).

I discern no sound basis, in law or public policy, for holding that there is no duty owed to persons in Charles Grover’s position. We are dealing with a drug which was widely prescribed for many years to virtually millions of pregnant women. It was a drug which had FDA approval but, perhaps, was not adequately tested in view of a considerable body of scientific and medical literature that raised serious questions concerning the safety of DES to the developing fetus and its efficacy for treatment of pregnancy complications. Petitioners aver that, despite warnings from independent researchers dating back to the 1930s that DES caused reproductive tract abnormalities and cancer in exposed animal offspring, that drug companies, including Eli Lilly, performed no tests as to the effects of DES on the developing fetus, either in animals or humans. Petitioners also assert that by 1947 there were twenty-one studies which supported these findings; that recent medical studies have established a significant link between DES exposure and various uterine and cervical abnormalities in DES daughters; and that these studies have demonstrated that mature DES daughters have a significantly higher risk of miscarriage, infertility and premature deliveries.

*765In light of the foregoing there can be no question that pharmaceutical companies should have known the dangers of this drug. If in the 1930s and 1940s the manufacturers of DES knew or should have known of the reproductive system defects in the animal fetus exposed to DES, how then is it not foreseeable that this might mean abnormalities in the human fetus’ reproductive system? In other words, it would appear that DES manufacturers knew or should have known that the human fetus exposed in útero might have a defect in the female reproductive system. Additionally, is it not then foreseeable that that female fetus would at some point seek to employ the defective reproductive system? The answer must be a resounding “yes.” Hence, there can be no logic to the holding of the majority that “[bjecause of the remoteness in time and causation, * * * Charles Grover does not have an independent cause of action.” What could have a more direct causal connection than a premature birth by a woman who was known to have an incompetent cervix? From this it becomes readily apparent that DES grandchildren were a foreseeable group of plaintiffs. It can hardly be argued that there is no duty owed to a foreseeable plaintiff. In the landmark case of Palsgraf v. Long Island RR. Co. (1928), 248 N.Y. 339, 162 N.E. 99, the court held that an actor has a duty to all plaintiffs within the actor’s “range of apprehension.” Id. at 344, 162 N.E. at 100. Indeed, a federal court of appeals had recently stated: “There was sufficient evidence from which a jury could reasonably have found that in 1955 Lilly knew or should have known that DES might cause reproductive abnormalities, such as prematurity, in the female offspring of women exposed to DES during pregnancy.” McMahon v. Eli Lilly & Co. (C.A.7, 1985), 774 F.2d 830, 835-836.

While both foreseeability and proximate cause are readily apparent in this case, it is well recognized that in strict products liability claims, unlike causes of action sounding in negligence, the concepts of duty and foreseeability are of diminished significance. See Jorgensen v. Meade Johnson Laboratories, Inc. (C.A.10, 1973), 483 F.2d 237; Docken v. Ciba-Geigy (1987), 86 Ore.App. 277, 739 P.2d 591. Even the Enright court recognized this concept by citing its decision in Albala v. New York (1981), 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786, for this proposition. Additionally, Prosser & Keeton state: “A perplexing problem that remains in this area is whether claims should be permitted where the harmful contact with the mother occurs even before the child is conceived, as from ingestion of a defective drug causing chromosomal damage to the mother’s ovum, or injury to her uterus during a preconception operation. A small number of courts have allowed recovery, but New York in a thinly reasoned case has recently ruled that a child has no cause of action for preconception torts upon the mother. * * * These are indeed staggering problems, that will have to be dealt with carefully in future toxic tort *766contexts such as these, but they by no means require that a blanket no-duty rule be applied in pre-conception injury cases where such problems do not exist.” (Emphasis added.) Prosser & Keeton, Law of Torts (5 Ed.1984) 369, Section 55.

Conclusion

DES continues to create difficult legal and social problems nationwide. The majority has failed to consider the uniqueness of DES. Instead, it has simply applied an arbitrary “blanket no-duty rule.” Today’s holding will have profound and devastating effects. To hold under these circumstances that Charles Grover’s injuries were not foreseeable is to ignore an entire body of scientific information which was available or could have easily become available with a measure of care concerning the effects of DES on subsequent generations.

Having reviewed and considered the competing public policy concerns, the case law recognizing preconception torts, respected legal commentary and the available scientific studies, I would conclude that individuals such as Charles Grover properly have a cause of action for their injuries. This in no way opens the floodgates because litigation can easily be concluded with Charles Grover’s generation. Moreover, the majority completely disregards the fact that the petitioners still bear the burden of proving proximate cause. I strenuously dissent. 0

Sweeney and Douglas, JJ., concur in the foregoing dissenting opinion.

. While lengthy string cites are normally unnecessary, the following should adequately illustrate that there is indeed an abundance of authority on preconception torts which deserves consideration: See Prosser & Keeton, Law of Torts (5 Ed.1984) 369, Section 55; Annotation, Liability for Child’s Personal Injuries or Death Resulting from Tort Committed Against Child’s Mother before Child was Conceived (1979), 91 A.L.R.3d 316; Jorgensen v. Meade Johnson Laboratories, Inc. (C.A.10, 1973), 483 F.2d 237; Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250; Bergstreser v. Mitchell (C.A.8, 1978), 577 F.2d 22; Loerch v. Abbott Laboratories (Minn.Dist.Ct.1988, Slip Op. No. 79-8720), affirmed (1989), 445 N.W.2d 560; Monusko v. Postle (1989), 175 Mich.App. 269, 437 N.W.2d 367; Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 568 N.Y.S.2d 550, 570 N.E.2d 198, certiorari denied (1991), 502 U.S. -, 112 S.Ct. 197, 116 L.Ed.2d 157; Note, The Impact of Medical Knowledge on the Law Relating to Prenatal Injuries (1962), 110 U.Pa.L.Rev. 554; Gordon, The Unborn Plaintiff (1965), 63 Mich.L.Rev. 579; Comment, Preconception Torts: Foreseeing the Unconceived (1971), 48 U.Colo.L.Rev. 621; Note, Torts Prior to Conception: A New Theory of Liability (1977), 56 Neb.L.Rev. 706; Comment, Recognizing a Cause of Action for Preconception Torts in Light of Medical and Legal Advancements Regarding the Unborn (1984), 53 UMKC L.Rev. 78; Note, Enright v. Eli Lilly & Co.: Recognizing DES Granddaughter’s Preconception Strict Products Liability Claim (1991), 17 J.Contemp.L. 175.

. The reason the majority’s holding is not clear is because in one breath it correctly states that “we are required to assume that Charles Grover can prove that his injuries were proximately caused by his mother’s exposure to DES,” but then ultimately concludes that “[bjecause of the remoteness in time and causation, we hold that Charles Grover does not have an independent cause of action.” (Emphasis added.)