Diethylstilbestrol and the Birth of Market-Share Liability

• Author: Logan L. Page
• Pages: 19-39

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.