## Facts

- Plaintiffs were “DES daughters” who developed cancer and reproductive injuries allegedly caused by in utero exposure to diethylstilbestrol (DES) taken by their mothers during pregnancy.
- DES was approved for pregnancy use in the 1940s and was widely prescribed to prevent miscarriages.
- DES was a generic, fungible drug manufactured and marketed by roughly 300 companies over time, with pharmacies dispensing whatever brand was available.
- Decades later, studies linked prenatal DES exposure to latent injuries, including clear-cell adenocarcinoma and related abnormalities.
- Because of the passage of time, missing records, and indistinguishable products, many plaintiffs could not identify the specific manufacturer of the DES their mothers ingested.
- Plaintiffs sued multiple manufacturers on products-liability theories; defendants sought dismissal/summary judgment for lack of product identification.
- New York enacted a statute reopening otherwise time-barred DES claims for a one-year window, and defendants challenged its constitutionality.

## Issues

1. Whether a plaintiff injured by DES may recover against DES manufacturers without identifying the specific manufacturer, and, if so, what liability and damages apportionment rule applies.
2. Whether New York’s one-year DES revival statute violates due process or equal protection under the federal or state constitutions.

## Decision

- The court allowed recovery without manufacturer identification by adopting a DES-specific market-share approach.
- Liability is apportioned by each defendant’s share of the national DES market for pregnancy use.
- Each defendant is severally liable only for its market share; plaintiffs may recover less than full damages if not all responsible manufacturers are sued.
- Defendants may not avoid liability by proving their own product did not cause the particular plaintiff’s injury, so long as they participated in the relevant DES pregnancy market.
- The court upheld the constitutionality of the DES revival statute against due process and equal protection challenges.

## Legal Principles

- In DES latent-injury cases where product identification is practically impossible through no fault of the plaintiff, New York permits liability based on a defendant’s proportionate contribution to the overall risk created by marketing DES for pregnancy use.
- Market-share liability is measured using a national market to approximate each defendant’s contribution to the public risk.
- Liability under this doctrine is several (proportionate), not joint and several, and damages are limited to the aggregate market shares of defendants before the court.
- A legislature may revive time-barred claims for a limited period to address latent injuries and extraordinary obstacles to timely filing, consistent with due process and equal protection.

## Conclusion

The court created a DES-specific national market-share liability rule that replaces individualized product identification with proportionate, several liability tied to each manufacturer’s national market share, while also sustaining a targeted legislative revival of otherwise time-barred DES claims as constitutional.


Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (N.Y. 1989)