## Facts

- Karen L. Kaufman alleged injuries as a “DES daughter” from her mother’s ingestion of diethylstilbestrol (DES) during pregnancy.
- In early 1954, Kaufman’s mother was prescribed DES to prevent miscarriage.
- In July 1973, at age 18, Kaufman was diagnosed with cervical cancer and underwent a radical hysterectomy, resulting in infertility.
- Kaufman sued in 1976, naming Eli Lilly and Company and many other DES manufacturers.
- Kaufman could not identify the specific manufacturer of the DES her mother took and pursued, among other theories, “concerted action,” alleging industry-wide coordinated conduct in testing, seeking regulatory acceptance, and marketing DES for pregnancy use.
- In an earlier DES case against Lilly (tried first among related cases), a jury returned special findings supporting Lilly’s liability, including a finding that Lilly acted in concert with other manufacturers.

## Issues

1. Whether Lilly could be collaterally estopped, in a later plaintiff’s suit, from relitigating the earlier jury’s finding that Lilly acted in concert with other DES manufacturers.
2. Whether collateral estoppel could apply to other issues decided in the earlier case that were essentially factual, actually litigated, and necessary to the verdict.
3. Whether Lilly could depose jurors from the earlier trial to show the verdict was a compromise and thereby defeat preclusion.
4. Whether severing Lilly’s trial from trials against other manufacturer-defendants was proper given the scope of any estoppel.

## Decision

- The Court of Appeals modified the order granting broad issue preclusion against Lilly.
- Lilly was not collaterally estopped from relitigating the earlier jury’s “concerted action” finding because it depended on an unresolved legal question about the scope of concerted-action liability.
- Collateral estoppel could apply to other determinations from the earlier case that were purely factual, necessarily decided, and fully and fairly litigated, subject to case-specific fairness limits.
- The denial of Lilly’s request to depose jurors from the earlier trial was affirmed.
- The severance structure was left in place, with further proceedings to reflect the narrowed scope of preclusion.

## Legal Principles

- Collateral estoppel bars relitigation of an issue that was clearly raised, actually litigated, necessarily decided, and decided against a party who had a full and fair opportunity to contest it.
- New York permits non-mutual offensive collateral estoppel, but courts must assess fairness before applying it.
- Issue preclusion is inappropriate where the prior determination rests on an unsettled or unresolved legal question; such legal issues should not be frozen into later cases through estoppel.
- Purely factual issues resolved in a prior action may be given preclusive effect in later actions, including in multiple-claimant litigation, when fairness criteria are satisfied.
- Post-verdict juror inquiry aimed at impeaching deliberations is generally prohibited; juror depositions to probe compromise verdicts are not allowed.

## Conclusion

The court narrowed non-mutual offensive collateral estoppel in DES litigation by refusing to preclude Lilly on an earlier “concerted action” finding tied to unsettled law, while allowing preclusion on properly decided factual issues and rejecting juror depositions, and it remitted the case for further proceedings under the modified preclusion ruling.


Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449 (N.Y. 1985)