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24 Creighton L. Rev. 1479 (1990-1991)
Preconception Tort Liability - The Duty to Third Generations: Enright v. Eli Lilly &(and) Co.

handle is hein.journals/creigh24 and id is 1493 raw text is: 1479 PRECONCEPTION TORT LIABILITY - THE DUTY TO THIRD GENERATIONS: ENRIGHT V. ELI LILL Y & CO. INTRODUCTION Diethylstilbestrol (DES) is a synthetic estrogen hormone in- vented by British researchers in 1937.1 DES was used to treat a vari- ety of health conditions, and beginning in 1947, was prescribed for the purpose of preventing miscarriages.2 Because DES was never patented, the approval of the Food and Drug Administration (FDA) was the only requirement needed by pharmaceutical drug manufacturers to produce the drug.3 By 1952, the FDA had declared DES to be generally recognized ... as safe.'4 However, in 1971, DES was discovered to be the specific cause of vaginal cancer in fe- male offspring of women who had ingested DES (DES daughters) and was banned by the FDA.5 By this time, DES had been taken by several million pregnant women.6 Consequently, four to six million mothers and their offspring were exposed to the drug.7 While a number of DES daughters have contracted vaginal and cervical can- cer, the vast majority of injuries to DES daughters are pre-cancerous vaginal abnormalities.8 In most DES litigation, plaintiffs have en- countered a number of legal problems such as the running of the statute of limitations, the absence of a cause of action for prenatal or preconception injury, and the inability to identify the manufacturer 1. Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 576, 436 N.E.2d 182, 183, 450 N.Y.S.2d 776, 777 (1982). 2. Id. at 577, 436 N.E.2d at 184, 450 N.Y.S.2d at 778. New Drug Applications (NDAs) were submitted to the FDA by pharmaceutical companies requesting ap- proval of its use for the treatment of engorged breasts, vaginitis, excessive menstrual bleeding, symptoms related to menopause and, a few years later, prostate cancer in males. Id. at 576, 436 N.E.2d at 183-84, 450 N.Y.S.2d at 777-78. 3. Id. at 576, 436 N.E.2d at 183, 450 N.Y.S.2d at 777. 4. Id. at 577, 436 N.E.2d at 184, 450 N.Y.S.2d at 778. 5. Id. 6. Id. 7. D. THOMPSON, M.D., EVERY WOMAN'S HEALTH 618 (3d ed. 1985). Adverse ef- fects of DES on male offspring are rare; however, abnormal genitalia and possibly tes- ticular cancer may be linked to DES exposure. Id. In March 1990, J. David Roberts filed a $2 million lawsuit in a Washington, D.C. federal district court against the drug manufacturer, Eli Lilly & Co., alleging that his daughter's clear-cell adenocarcinoma, a rare vaginal cancer, was caused by Mr. Roberts' exposure to DES as a fetus. ABA L.J., June 1990, at 14. 8. Note, DES and a Proposed Theory of Enterprise Liability, 46 FORDHAM L. REV. 963, 964-65 (1978). Adenosis is tissue placed abnormally on the cervix or va- gina, and is the most consistently present abnormality. Id. at 965 n. 10.

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