## Facts

- DES (diethylstilbestrol) is a synthetic estrogen first produced in 1937; it was not patented and was manufactured by multiple companies with FDA approval.
- The FDA approved DES for nonpregnancy uses beginning in 1941 and later approved it for miscarriage prevention; by 1951 the FDA no longer required an NDA to market DES for pregnancy-related use.
- In 1971, the FDA barred DES for pregnancy-related use after studies linked in utero exposure to certain cancers and other conditions in daughters.
- Because DES was chemically identical across manufacturers and prescriptions were often filled with whichever brand was available, many injured plaintiffs could not identify the specific manufacturer of the DES ingested by their mothers.
- New York previously adopted market-share liability for DES cases to allow recovery despite inability to identify the manufacturer, allocating liability in proportion to each defendant’s DES market share.
- A trial court severed the market-share issue from all pending New York DES cases and consolidated it into a single proceeding to determine each defendant’s market share.

## Issues

1. Whether plaintiffs seeking tort money damages under market-share liability have a constitutional right to a jury trial on the determination of each defendant’s market share in a consolidated proceeding.

## Decision

- The Court of Appeals affirmed the Appellate Division.
- It held that plaintiffs are constitutionally entitled to a jury trial on the market-share issue.
- The court rejected the view that market-share allocation is a purely equitable remedy or merely a pretrial case-management determination.
- The consolidated market-share phase was treated as a trial on a disputed factual issue central to liability allocation.

## Legal Principles

- The New York constitutional jury-trial right applies to actions at law, particularly tort actions seeking money damages.
- Market-share liability in DES cases modifies proof and apportionment within a legal damages action; it does not create a separate equitable cause of action.
- Describing a doctrine as “equitable” in a fairness or policy sense does not convert a legal damages action into an equity proceeding that avoids a jury.
- A severed and consolidated phase that resolves substantive factual disputes affecting liability remains subject to the jury-trial guarantee unless waived.

## Conclusion

Because DES plaintiffs pursue traditional tort damages and the market-share determination is a central factual component of allocating liability among defendants, the New York Constitution requires that market share be tried to a jury in the consolidated proceeding.


Matter of DES Mkt. Share Litig., 79 N.Y.2d 299, 582 N.Y.S.2d 377, 591 N.E.2d 226 (1992)