Enright v Eli Lilly
Ct. of APP N.Y., 1991
Author:- Sam Biers

Public Policy

Relevant Facts: Pl’s Karen’s grandmother ingested DES resulting in Pl Patricia’s abnormalities of her reproductive system.  These abnormalities causes several miscarriages and the premature birth of Karen.  Karen suffers from cerebral palsy and other disabilites attributed to the DES.  DES a synthetic estrogen was prescribed for use by pregnant women to prevent miscarriages.  The FDA later banned its use b/c of the high incidence of cancer and other associated abnormalities and malformations it caused.

Legal Issue(s): Whether a cause of action exists to a child injured as a result of a preconception tort against her mother from DES?

Court’s Holding: No

Procedure: Trial ct dismissed Karen’s claims, she appealed. S. Ct. - App Div. affirmed dismissal of some but reinstated strict liability count.  Patricia’s claims were pending.

Law or Rule(s): The cause of the injury has to have a direct connection and not too remote to establish liability.

Court Rationale: To recognize a cause of action for a child injured by the ingestion of DES two generations back is not manageable.  This would assume that every birth has the implication of being perfect and if not torts would arise.  The legislature has chosen to modify the law with respect to DES litigants, and has chosen not to include the class of persons the pl belongs to.  This cause of action could not be confined without drawing artificial and arbitrary boundaries.  The effects of DES may extend for several more generations.  The ct’s duty is to confine liability w/i manageable limits.  Manufacturers are liable commensurate with the risk imposed upon a specific class.  The tort system is not the only available means to ensure safety over this product, the FDA exists for that.  Public policy has determined that prescription drugs are necessary and that certain risks are unavoidable.  Manufacturers are not immune from adequate research, but overdeterrence increases the possibility of beneficial drugs being withheld from the market. 

Plaintiff’s Argument: The legislature and the ct have legal barriers, to recover, for DES litigants previously.  Pl is member of a class injured by DES.

Defendant’s Argument: Pl was not directly injured by DES sufficient to establish a close connection.  Pl’s injuries could have resulted from other factors unknown to pl or df.