The DES Manufacturer Identification Problem: A Florida Public Policy Approach

The court must take some action that will encourage manufacturers to assure that their products are traceable back to themselves. To do otherwise will leave open a loophole through which manufacturers can escape liability for injuries sustained by their consumers. This result would be inconsistent with the court’s declared policy that “the law will step in to protect people against risks which they cannot adequately guard against themselves.”‘

3-1-1986 – Introduction

Terri Lynn Conley suffered from cervical adenosis.  She underwent surgery for removal of most of her cervix, as well as removal of other precancerous and cancerous tumors. Conley’s mother ingested the drug diethylstilbestrol (DES) twenty years before while Conley was present in utero. Doctors commonly prescribed DES as a miscarriage preventative around the time period that Conley’s mother was pregnant but subsequent research linked in utero exposure to DES to the kind of cancer that Conley developed.

Conley brought an action against eleven manufacturers who had produced DES both before and during her mother’s pregnancy. She alleged that the DES her mother ingested during pregnancy caused her own medical complications. She was unable to identify the specific manufacturer of the DES that her mother ingested but she suggested four alternative theories of recovery in lieu of the traditional tort requirement that the plaintiff identify specific tortfeasors.

The trial court granted motions to dismiss and judgments on the pleadings for the defendants because of Conley’s inability to identify the specific manufacturer. On appeal, the Fourth District Court of Appeal affirmed, held: failure to allege legal causation by identifying the specific tortfeasors precludes recovery. The district court recognized, however, the compelling argument in favor of relaxing the identification requirement in DES-like situations, and considered various theories fashioned by courts of other jurisdictions. The court proposed its own theory of liability for adoption in Florida, and urged its serious consideration by the supreme court. The court concluded, however, that it lacked authority to approve a new theory of liability before the Supreme Court of Florida had done so. It certified the following question to the supreme court as an issue of great public concern: “Does Florida recognize a cause of action against a defendant for marketing defective DES when the plaintiff admittedly cannot establish that a particular defendant was responsible for the injury?”

Conclusion

Confrontation with any traditional legal doctrine requires a thorough examination of the public policy considerations which are the substance of the law. The court must recognize the changes that have occurred in society, and if the scope of those changes is great enough, it must rework tort doctrine so that tort law can continue to serve its original purpose-that of making the public policies of society a reality in the everyday lives of individuals. This exercise is one of the essential roles courts play in the society they serve.

The Conley v. Boyle Drug Co. case will be a difficult decision for the Supreme Court of Florida. Only if the court relaxes the defendant identification requirement will Terri Lynn Conley have a remedy. Relaxation of the defendant identification requirement is consistent with the court’s policy of compensating injured plaintiffs for injuries caused by wrongs committed by others. It is also consistent with the policy of preferring innocent plaintiffs over possibly culpable defendants. Because the Conley case is a products liability action, the relaxation of the defendant identification requirement promotes the court’s policy of giving manufacturers the incentive to produce safe products. It is also consistent with the court’s recognition that manufacturers are better able than consumers to spread the risk of loss caused by defects in their products. The court must also recognize that the expanding use of generic drugs will inevitably cause the problem to occur again. The court must take some action that will encourage manufacturers to assure that their products are traceable back to themselves. To do otherwise will leave open a loophole through which manufacturers can escape liability for injuries sustained by their consumers. This result would be inconsistent with the court’s declared policy that “the law will step in to protect people against risks which they cannot adequately guard against themselves.“‘ By recognizing that Terri Lynn Conley is entitled to a remedy at law, the court will protect Florida citizens from similar incidents in the future.

Sources

• Full study: DES MANUFACTURER IDENTIFICATION, University of Miami Law School Institutional Repository, John J. Grundhauser, 3-1-1986.

More DES DiEthylStilbestrol Resources

• DES studies on cancers and screening.
• DES studies on epigenetics and transgenerational effects.
• DES studies on fertility and pregnancy.
• DES studies on gender identity and psychological health.
• DES studies on in-utero exposure to DES and side-effects.
• DES studies on the genital tract.
• Papers on DES lawsuits.
• DES videos and posts tagged DES, the DES-exposed, DES victims.