Diethylstilbestrol and the Birth of Market-Share Liability

AuthorLogan L. Page
Chapter 2: Diethylstilbestrol and
the Birth of Market-Share Liability
Logan L. Page*
I. Introduction
Between 1947 and 1971, as many as six million women were prescribed and
took diethylstilbestrol (DES) during their pregnancies.1 is drug, which
the U.S. Food and Drug Administration (FDA) approved as a miscarriage
preventative, would later be linked to clear-cell adenocarcinoma— a form of
vaginal ca ncer—in their adult children.2 ose women, remembered today
as the DES Daughters, overcame a number of legislative and judicial obsta-
cles to sue the companies that manufac tured DES.
is chapter examines t he challenges the DES Daughters confronted
when pursuing these legal claims. ere had never been lawsuits quite like
theirs before, and they were not universally successful. Courts were forced
to decide whether traditional tort law recognize d the claims and whether the
plaintis would be able to collect for the harm DES did to their bodies.
e California Supreme Court provided the DES Daughters with a
watershed victory in the 1980 decision, Sindell v. Abbott Laboratories. at
court minted market-share liability, a novel theory of tort causation, which
held any manufacturer unable to prove it did not manufacture the particu-
lar dose of DES that harmed the plainti liable for the percentage of the
judgment proportional to its market share.3 However, some courts subse-
quently labeled Sindell unpersuasive and rejected the new causation theory
and the DES Daughters’ claims along with it.4 Other courts qualied Sin-
dell in various ways, allowing the DES Daughters to recover but reaching
dierent conclusions about the most appropriate application of tort law to
1. Anita Bernstein, Hymowitz v. Eli Lilly and Co.: Markets of Mothers, in T S 151, 151 (Robert
L. Rabin & Stephen D. Sugarman eds., 2003); see also Conley v. Boyle Drug Co., 570 So. 2d 275,
279 n.1 (Fla. 1990).
2. Note, Market Share Liability: An Answer to the DES Causation Problem, 94 H. L. R. 668, 669
& n.10 (1981) [hereinafter Market Share Liability Note].
3. Sindell v. Abbott Labs., 607 P.2d 924, 936–37 (Cal. 1980).
4. See, e.g., Sutowski v. Eli Lilly & Co., 696 N.E.2d 187, 190 n.1 (Ohio 1998) (listing several cases).
* Logan L. Page is an associate at Steptoe & Johnson LLP. He is grateful to Hampden T. Macbeth and
Chase S. Whiting for helpful edits and suggestions.
Copyright © 2020 Environmental Law Institute®, Washington, DC.
20 Looking Back to Move Forward: Resolving Health & Environmental Crises
their cases. In Hymowitz v. Eli Lilly & Co., New York’s highest court oered
the greatest challenge to traditional tort law by allowing plaintis to collect
even from manufacturers th at could prove they had not supplied DES to the
plainti’s mother.5
e chapter explains this important legal history and explores whether
Sindell and its progeny—most notably, Hymowitz—articul ated resilient legal
principles that enabled the DES Daughters (and future classes of similarly
situated plaintis) to obtain compensation for the harms they suered.
II. A Brief History of DES
Understanding how DES was created, marketed, and prescribed is necessary
to assess the novel legal questions involved in the DES litigations. A Brit-
ish scientist, Sir Edward Charles Dodds, created DES in 1938.6 He did so
through research funded by a British Medical Research Council grant.7 As
a condition of that funding, Dr. Dodds was unable to patent DES.8 Becau se
DES’s chemical composition was not protected by a patent, hundreds of
American companies engineered it themselves.9
In 1941, FDA approved DES for four uses: menopausal disorders, gonor-
rheal vaginitis, senile vaginitis, and unwanted lactation.10 Four years later,
FDA approved DES to prevent misca rriages during pregna ncy.11 And in
1952, the FDA shed DES’s “new drug” designation, enabling generic drug
companies to market DES for any purpose.12
at same year, the rst scientic study questioning DES’s eectiveness in
preventing miscarriage s was published in the American Journal of Obstetrics
& Gynecology.13 Nineteen years on, e New England Journal of Medicine
published research demonstrating that ta king DES during pregna ncy led to
clear-cell adenocarcinoma in the yet to be born daughters.14 Following this
study, it took less than a year for FDA to issue a statement discouraging the
5. Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1078 (N.Y. 1989).
6. R M, D.E.S.: T B P 37 (1983).
7. Bernstein, supra note 1, at 153.
8. Id. at 153.
9. See id. at 153, 162.
10. Id. at 154.
11. Id.
12. Id. at 155.
13. Id. While this study treated a narrow topic, scientic research suggesting that synthetic estrogens,
including DES, had harmful eects in animals had been published since at least as early as 1938. P
C, DES V: F A  A 8–9 (2008).
14. Bernstein, supra note 1, at 156.
Copyright © 2020 Environmental Law Institute®, Washington, DC.

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