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25 Suffolk U. L. Rev. 1071 (1991)
The Causation Requirement: Guardian of Fairness or Obstacle to Justice - Making Sense of a Decade of DES Litigation

handle is hein.journals/sufflr25 and id is 1099 raw text is: THE CAUSATION REQUIREMENT: GUARDIAN OF
In the mid-1940s, many pharmaceutical companies produced and mar-
keted a product known as diethylstilbestrol (DES) represented to reduce
risks associated with pregnancy. Apparently none of these companies ade-
quately tested their product before making it available to the public. Inevi-
tably, many of the daughters of women who used the drug developed severe
illnesses, ordinarily during their mid-teens. Many years passed between
the mother's use of the drug and the development of her daughter's inju-
ries, making difficult, if not impossible, the task of identifying the producer
of the drug to which the daughter was exposed. When the daughters seek
recovery for their injuries, courts face two conflicting legal principles: the
common-law requirement that the plaintiff identify the particular defend-
ant responsible for her injuries and the underlying policy of tort law that
those at fault should bear the cost of the consequences of their actions.
This Note discusses the appropriate judicial response to the conflict between
these long-standing but competing legal principles
Between 1947 and 1971, many pharmaceutical companies manufac-
tured stilbestrol, known also as diethylstilbestrol (DES), as an aid in
preventing miscarriage.1 After this drug was marketed for almost
twenty-five years, researchers linked prenatal exposure to stilbestrol and
the later development of cancer and malformations of the reproductive
organs in daughters of women who ingested stilbestrol during preg-
nancy.2 Armed with convincing evidence that the entire drug industry
acted negligently in producing and marketing stilbestrol, many of the
women exposed to stilbestrol in utero have attempted to recover in court
for their subsequent injuries.' However, the largely generic form of the
drug, the number of companies that produced the drug, and the lapse of
1. See Ferrigno v. Eli Lilly & Co., 175 N.J. Super. 551, 561, 420 A.2d 1305, 1310 (1980)
(noting that diethylstilbestrol (DES) merely another name for stilbestrol); Martin v. Abbott
Laboratories, 102 Wash. 2d 581, 589, 689 P.2d 368, 374 (1984) (200 to 300 companies manu-
factured DES as miscarriage preventive between 1947 and 1971).
2. See Payton v. Abbott Labs, 386 Mass. 540, 542, 437 N.E.2d 171, 173 (1982) (DES
identified as cause of changes in daughter's reproductive organs); Collins v. Eli Lilly & Co.,
116 Wis. 2d 166, 179, 342 N.W.2d 37, 44 (1984) (researchers linked fetal exposure to DES
with development of cancer).
3. See Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 231, 560 N.E.2d 324, 328 (1990) (hun-
dreds of DES suits filed since early 1970s); Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 578, 436
N.E.2d 182, 185, 450 N.Y.S.2d 776, 779 (1982) (jury determined pharmaceutical companies
negligent in marketing stilbestrol for use in pregnancy).

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