New York Law Review

Tag: Preconception Tort

  • Enright v. Eli Lilly & Co., 77 N.Y.2d 377 (1991): Limits on DES Manufacturer Liability to Grandchildren

    Enright v. Eli Lilly & Co., 77 N.Y.2d 377 (1991)

    A manufacturer’s liability for injuries caused by a drug does not extend to a “third generation” plaintiff (grandchildren) whose injuries allegedly resulted from their mother’s in utero exposure to the drug, due to policy considerations regarding the limits of liability and potential for limitless claims.

    Summary

    Karen Enright, born prematurely with cerebral palsy, sued DES manufacturers, claiming her injuries stemmed from her maternal grandmother’s ingestion of DES during pregnancy with Karen’s mother, Patricia. Patricia allegedly suffered reproductive system abnormalities due to DES exposure, leading to Karen’s premature birth. The New York Court of Appeals held that the manufacturers’ liability did not extend to Karen. The court reasoned that allowing such claims would expand tort liability beyond manageable limits and create the potential for limitless claims across generations, echoing concerns raised in Albala v. City of New York. The court emphasized that while DES litigation has received special consideration, it doesn’t justify abandoning traditional limits on tort liability.

    Facts

    Karen Enright’s maternal grandmother ingested DES during pregnancy in 1960.
    Patricia Enright, Karen’s mother, was born with reproductive system abnormalities allegedly due to her in utero DES exposure.
    Patricia experienced multiple miscarriages, and Karen was born prematurely in 1981, suffering from cerebral palsy and other disabilities.
    Karen and her parents sued several DES manufacturers, claiming Karen’s injuries resulted from her grandmother’s DES ingestion.

    Procedural History

    The Supreme Court dismissed Karen’s claims, relying on Albala v. City of New York, which limited preconception tort liability.
    The Appellate Division modified, reinstating Karen’s strict products liability claim, arguing public policy favored a remedy for DES victims.
    The Court of Appeals granted leave to appeal, certifying the question of whether the Appellate Division erred in reinstating the strict products liability claim.

    Issue(s)

    Whether a drug manufacturer’s liability in a strict products liability action extends to a “third generation” plaintiff whose injuries are allegedly caused by their mother’s in utero exposure to the drug ingested by the grandmother.

    Holding

    No, because extending liability to “third generation” plaintiffs would expand traditional tort concepts beyond manageable bounds, creating the potential for limitless claims and raising concerns about speculative and remote damages, as previously established in Albala v. City of New York.

    Court’s Reasoning

    The court relied heavily on its decision in Albala v. City of New York, which declined to recognize a cause of action for a child injured due to a preconception tort against the mother. The court found no meaningful distinction between Albala (medical malpractice) and the current case (DES exposure) to justify a different rule.
    While acknowledging legislative and judicial solicitude for DES victims (e.g., CPLR 214-c and Hymowitz v. Lilly & Co.), the court emphasized that these measures addressed unique procedural barriers in DES litigation, not an intent to create a favored class of plaintiffs.
    The court rejected the argument that strict products liability warranted a different outcome than negligence, stating that the concerns about limitless liability and artificial boundaries remained compelling. The court noted: “For all we know, the rippling effects of DES exposure may extend for generations. It is our duty to confine liability within manageable limits”.
    The court also considered the potential for overdeterrence, which could discourage pharmaceutical research and development, and the role of the FDA in regulating drug safety.
    Liability was limited to those who ingested DES or were exposed to it in utero, balancing the need for redress with the need to confine liability within manageable limits. The court quoted Tobin v. Grossman, stating, “It is our duty to confine liability within manageable limits”.

  • Albala v. City of New York, 54 N.Y.2d 269 (1981): No Duty of Care Owed to Unconceived Child for Preconception Tort

    Albala v. City of New York, 54 N.Y.2d 269 (1981)

    A tort committed against a mother before a child’s conception does not give rise to a cause of action in favor of the child if that tort caused injury to the child during gestation; foreseeability alone is insufficient to establish a duty of care to a child conceived after a negligent act.

    Summary

    The New York Court of Appeals held that a child does not have a cause of action for injuries allegedly sustained as a result of a tort committed against the mother before the child’s conception. The court reasoned that recognizing such a cause of action would extend tort liability beyond manageable limits and lead to undesirable policy consequences, such as defensive medicine. The court emphasized that foreseeability alone is not the determining factor in establishing a legal duty. The court balanced the need to provide remedies for injuries with the need to avoid artificial and arbitrary boundaries of liability.

    Facts

    In 1971, Ruth Albala underwent an abortion at Bellevue Hospital, during which her uterus was perforated due to alleged medical malpractice. In 1975, Ruth conceived Jeffrey Albala. Jeffrey was born in 1976 with a damaged brain. Jeffrey’s lawsuit alleged his brain damage was a direct result of the negligent perforation of his mother’s uterus during the abortion performed years prior to his conception.

    Procedural History

    Jeffrey Albala commenced an action in 1978, claiming damages for brain damage allegedly caused by the 1971 malpractice on his mother. The Supreme Court, Special Term, granted the defendants’ motion for summary judgment, dismissing the case. The Appellate Division affirmed this decision, holding that no cause of action exists for a preconception tort under New York law. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether a tort committed against the mother of a child before conception gives rise to a cause of action in favor of the child if the tort allegedly caused injury to the child during gestation.

    Holding

    No, because extending liability to preconception torts would require extending traditional tort concepts beyond manageable bounds and lead to undesirable policy consequences.

    Court’s Reasoning

    The court declined to recognize a cause of action for preconception torts. The court distinguished this case from Woods v. Lancet, where a child was allowed to sue for prenatal injuries, because in that case, the child existed in utero at the time of the tort. The court noted that foreseeability alone is not sufficient to establish a duty of care. Quoting Tobin v. Grossman, the court stated, “foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability”. The court expressed concern that recognizing such a cause of action would open the door to unlimited hypotheses and staggering implications, creating perimeters of liability that cannot be judicially established in a reasonable and practical manner. The court also raised concerns about encouraging “defensive medicine,” where physicians might avoid potentially life-saving treatments to avoid liability for potential harm to future offspring. The court acknowledged the desire to provide relief to those who have suffered but emphasized that the law cannot provide a remedy for every injury. The Court distinguished Jorgensen v. Meade Johnson Labs, a products liability case, noting that strict liability without fault eliminates the need to establish manageable bounds for liability.