## Facts

- Linda Bortell alleged she was infertile because her mother ingested diethylstilbestrol (DES) while pregnant with her.
- Bortell sued Eli Lilly & Co. and other DES manufacturers, seeking damages for injuries allegedly caused by prenatal DES exposure.
- The DES prescription was filled at a particular pharmacy; Bortell could not identify, through direct records, the specific manufacturer of the DES dispensed to her mother.
- To prove product identification, Bortell relied mainly on affidavits from two former pharmacy employees.
- The affidavits were largely standardized, pre-filled forms and asserted that DES prescriptions filled at that pharmacy during the relevant period would have been filled with Eli Lilly’s DES pills.
- About a year after the affidavits were signed, one affiant died and the other developed dementia and was incompetent to testify, making both unavailable for trial testimony.
- Eli Lilly produced evidence challenging the affidavits’ reliability, including (i) inconsistencies between the affidavits’ statements about the pharmacy’s wholesale supplier and information found by an investigator, and (ii) evidence suggesting the impaired affiant’s dementia began before the affidavit was signed.
- Eli Lilly moved for summary judgment, arguing Bortell could not prove that Eli Lilly manufactured the DES at issue and that Pennsylvania law required specific manufacturer identification.

## Issues

1. Under District of Columbia choice-of-law rules, did Pennsylvania substantive law govern Bortell’s products-liability claims?
2. If Pennsylvania law applied, could Bortell proceed without identifying the specific manufacturer (for example, via market-share liability or similar collective-causation theories)?
3. Were Bortell’s pharmacy-employee affidavits admissible (or capable of being presented in admissible form at trial), and if not, did the remaining evidence create a triable issue that Eli Lilly made the DES her mother ingested?

## Decision

- The court applied Pennsylvania substantive law under District of Columbia choice-of-law principles.
- The court held Pennsylvania law required product identification and did not allow market-share liability on these facts.
- The court found Bortell’s key proof—pharmacy-employee affidavits—could not be used to defeat summary judgment because the affiants were unavailable and the affidavits lacked sufficient indicia of reliability for admission under a hearsay exception.
- With the affidavits excluded, Bortell lacked evidence from which a reasonable jury could find that Eli Lilly manufactured the DES dispensed to her mother.
- The court granted Eli Lilly’s motion for summary judgment.

## Legal Principles

- A federal court sitting in diversity applies the forum jurisdiction’s choice-of-law rules; in the District of Columbia, courts apply an interest-based analysis to select the governing substantive law.
- In a products-liability case governed by Pennsylvania law, a plaintiff generally must prove that a particular defendant’s product caused the injury; evidence that a defendant was one of many possible manufacturers is not enough.
- Pennsylvania does not recognize market-share liability (or similar collective liability) as a substitute for identifying the manufacturer in a DES products-liability suit.
- At summary judgment, the nonmovant must point to evidence that would be admissible at trial (or can be presented in admissible form at trial) to show a genuine dispute of material fact.
- Affidavits offered for their truth are hearsay if the declarants do not testify, and they are not admissible unless they fit a hearsay exception (or another basis for admission).
- When evaluating whether hearsay statements from unavailable declarants can be used, courts consider reliability and trustworthiness; standardized, conclusory affidavits—especially where the declarant cannot be cross-examined and the record contains reasons to doubt accuracy—may be excluded.
- If the plaintiff’s manufacturer-identification proof is inadmissible or too speculative, summary judgment is appropriate because causation cannot be established against the moving defendant.

## Conclusion

Bortell alleged DES caused her infertility but could not identify the manufacturer of the DES her mother took. Applying Pennsylvania law through District of Columbia choice-of-law rules, the court required specific manufacturer identification and declined to allow a market-share theory. Because Bortell’s principal evidence consisted of unreliable pharmacy-employee affidavits from witnesses who were unavailable to testify, the court ruled the affidavits could not defeat summary judgment and entered judgment for Eli Lilly.


Bortell v. Eli Lilly & Co., 406 F. Supp. 2d 1 (2005)