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6 Am. J.L. & Med. 243 (1980-1981)
Payton v. Abbott Laboratories: An Analysis of the Massachusetts DES Class Action Suit

handle is hein.journals/amlmed6 and id is 263 raw text is: Payton v. Abbott Laboratories: An
Analysis of the Massachusetts DES
Class Action Suit
Susan E. Silbersweig*
In Payton v. Abbott Laboratories, U.S. District Court Judge Walter J.
Skinner recently granted class certification to an action brought by twenty-
seven Massachusetts women against major manufacturers of DES. This is
the first case in which a judge has interpreted the requirements of Rule 23
of the Federal Rules of Civil Procedure to allow women exposed in utero
to DES to sue as a class to determine liability for their injuries.
This Note reviews the Payton certification in light of prior class action
decisions involving DES and other types of claims, and of legal commen-
tary on Rule 23. This Note contends that Judge Skinner's application
of the Rule 23 requirements in Payton was procedurally correct, and
recommends the class action device as an effective method for litigating
such controversies. Finally, this Note analyzes the implications of this
landmark ruling for plaintiffs seeking class certification in DES suits and
in suits presenting analogous factual situations.
In July 1979, U.S District Court Judge Walter J. Skinner determined
that the plaintiffs in Payton v. Abbott Laboratories' could maintain a
class action suit under Rule 23 of the Federal Rules of Civil Procedure,2
which provides a device for litigating the claims of many individuals in a
single action. In Payton, twenty-seven Massachusetts women exposed to
diethylstilbestrol (hereinafter DES) in utero filed suit to recover damages
from ten major drug firms that manufactured DES.3 Payton is the first of the
The author is a third-year student at Boston University School of Law and will be
a Case and Note Editor of the student division of the American Journal of Law 6 Medicine
for 1980-81.
I No. 76-1514-S (D. Mass. July 30, 1979).
2 FED. R. Civ. P. 23.
3The following drug firms have been named as defendants in the Payton suit:
Abbott Laboratories of Illinois; Eli Lilly & Co. and Miles Laboratories of Indiana;
Ortho Pharmaceutical Corp. and Merck & Co. of New Jersey; Parke-Davis & Co. of
Michigan; Rexall Drug Co., Upjohn & Co., E.R. Squibb & Sons, and Sandoz Inc., all of

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