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Court OKs Trial For DES Lawsuits Filed Under ‘Toxic Tort’ Law

April 5, 1989

ALBANY, N.Y. (AP) _ New York’s highest court Tuesday cleared the way for trial of billions of dollars in lawsuits filed over DES, which has been blamed for cancer and sterility in women whose mothers took the anti-miscarriage drug.

The Court of Appeals also determined that all companies that made the drug should be liable for any DES damage awards won by New York residents - even if those companies never marketed their pills in New York.

Jay Mayesh, a lawyer for the pharmaceutical company Upjohn, said the ruling makes New York the only state to say all DES manufacturers are liable for some damages.

The court upheld New York’s 1986 ″toxic torts″ law, which covers purported victims of five chemicals and permits them to sue within three years after effects of the exposure are discovered. Prior to the law, victims were required to sue within three years of actual exposure to a toxic substance.

The new law also gave those barred from suing under the old law a one-year period in which to sue.

Tuesday’s ruling was praised by women who claim they were harmed by the DES their mothers took between the late 1940s and early 1970s. The drug was marketed until 1971.

In virtually every DES case, victims had been barred from suing because the health problems didn’t appear for many years after the usual state statute of limitations had expired.

However, Mayesh cautioned that the ruling only opens the way for juries to hear claims that people were harmed by exposure to DES.

″The issues decided here are procedural only,″ said Mayesh. ″They do not address the fundamental question of whether DES caused any of the health problems the plaintiffs claim it did. That issue remains very hotly contested.″

But in his ruling, Chief Judge Sol Wachtler said there is ″strong evidence″ linking DES exposure to ″later development of serious medical problems.″

More than 500 DES lawsuits seeking some $3 billion in damages were filed during the ″window″ created by the toxic tort law.

In addition to diethylstilbestrol, or DES, the substances covered by the law are asbestos, tungsten-carbide, chlordane and polyvinylchloride.

In Wachtler’s ruling, the Court of Appeals rejected drug companies’ arguments that the law violates their rights to due process and equal protection.

A stickier legal question for the court, apparently, was how to determine which drug companies are responsible for the damages and how much they should pay.

The court decided unanimously that a ″market share theory,″ similar to one first formulated by California’s top court, will be adopted in New York for apportioning damages from the DES litigation.

That means drug companies in New York court cases will be liable for a percentage of damages corresponding to the percentage of the national DES market they controlled while manufacturing the drug.

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