Lead Opinion
OPINION OF THE COURT
The question in this case is whether the liability of manufacturers of the drug diethylstilbestrol (DES) should extend to a so-called "third generation” plaintiff, the granddaughter of a woman who ingested the drug. According to the allegations of the complaint, the infant plaintiff’s injuries were caused by her premature birth, which in turn resulted from damage to her mother’s reproductive system caused by the mother’s in útero exposure to DES. We hold, in accord with our decision in Albala v City of New York (
I.
The plaintiffs in this case are Karen Enright, born August
This action was commenced by Patricia and Earl Enright individually and on behalf of their daughter against several manufacturers of DES. After issue was joined, the defendants sought summary judgment dismissing the complaint. Defendants contended that the actions were barred by the Statute of Limitations and by plaintiffs’ inability to identify the manufacturer of the drug ingested by Karen’s grandmother. In addition, defendants argued that Karen’s claims of a preconception tort presented no cognizable cause of action.
Supreme Court, relying principally on Albala v City of New York (
On cross appeals, the Appellate Division modified by reinstating the third cause of action in the complaint — that cause of action brought on behalf of Karen Enright based upon strict products liability. The Appellate Division agreed with Supreme Court that Albala foreclosed preconception tort liability based upon negligence, but held that public policy in favor of providing a remedy for DES victims justified recognizing a strict products liability cause of action.
Defendants sought leave to appeal to this Court, which the Appellate Division granted, certifying to us the question: "Did this court err, as a matter of law, by reversing so much of the Supreme Court order as granted defendants’ motions dismiss
We note that no issues are raised on this appeal regarding the still pending claims of Patricia and Earl Enright based on the injuries allegedly sustained by Patricia Enright due to her own in útero exposure to DES. Most of defendants’ attacks on those claims were defused by our recent decision in Hymowitz v Lilly & Co. (
Thus, the only issue before us is the propriety of the Appellate Division’s reinstatement of the strict products liability cause of action on behalf of Karen Enright, this so-called "third generation” plaintiff.
II.
The tragic DES tale is well documented in this Court’s decisions and need not be recounted here (see, e.g., Hymowitz v Lilly & Co., supra; Bichler v Lilly & Co.,
The Legislature and this Court have both expressed concern for the victims of this tragedy by removing legal barriers to their tort recovery — barriers which may have had their place in other contexts, but which in DES litigation worked a peculiar injustice because of the ways in which DES was
For example, prior to 1986, the long-standing rule in this State was that a cause of action for personal injuries caused by a toxic substance accrued and the limitations period began to run upon exposure to the substance (see, Fleishman v Lilly & Co.,
More recently, this Court responded to thé fact that — for a variety of reasons unique to the DES litigation context — a DES plaintiff generally finds it impossible to identify the manufacturer of the drug that caused her injuries. We held that liability could be imposed upon DES manufacturers in accordance with their share of the national DES market, notwithstanding the plaintiffs inability to identify the manufacturer particularly at fault for her injuries (see, Hymowitz v Lilly & Co., supra).
III.
In the present case, we are asked to do something significantly different. We are asked, not to remove some barrier to recovery that presents unique problems in DES cases, but to recognize a cause of action not available in other contexts simply (or at least largely) because this is a DES case.
In Albala v City of New York (
The case now before us differs from Albala only in that the mother’s injuries in this case were caused by exposure to DES instead of by medical malpractice. A different rule is justified, therefore, only if that distinction alters the policy balance we struck in Albala.
The primary thrust of plaintiffs’ argument and the Appellate Division’s decision is that DES itself alters that balance. From the Legislature’s actions in modifying the applicable Statute of Limitations and reviving time-barred DES cases and from our adoption of a market-share liability theory in Hymowitz, plaintiffs perceive a public policy favoring a remedy for DES-caused injuries sufficient to overcome the countervailing policy considerations we identified in Albala. The implication, of course, is that the public interest in providing a remedy for those injured by DES is stronger than the public interest in providing a remedy for those injured by other means — medical malpractice, for example. We do not believe that such a preference has been established.
To be sure, recent developments demonstrate legislative and judicial solicitude for the victims of DES, but they do not establish DES plaintiffs as a favored class for whose benefit all traditional limitations on tort liability must give way. To the extent that special rules have been fashioned, they are a response to unique procedural barriers and problems of proof peculiar to DES litigation.
For example, the Legislature’s enactment of a "discovery” Statute of Limitations was directed at opening up traditional avenues of recovery by removing a procedural barrier that was unreasonable given the nature of DES injuries. Nothing in the legislation suggests that the Legislature intended to expand the basis for liability. Indeed, the language of the statute suggests the opposite conclusion. The discovery rule applies in cases of injury caused by "the latent effects of exposure to any substance * * * upon or within the body” (CPLR 214-c [2]). Exposure is defined as "direct or indirect
Similarly, our adoption of market-share liability was not prompted by some uncontrolled momentum favoring recovery by all DES plaintiffs; rather, it was justified because identification of the DES manufacturer was an insurmountable barrier in the "singular case [where] manufacturers act[ed] in a parallel manner to produce an identical, genetically marketed product, which causes injury many years later” (Hymowitz v Lilly & Co., supra, at 508). These unique features of DES cases not only made identification difficult, but also made it less relevant to culpability than in other products liability actions, since the tortious conduct of DES manufacturers pervaded the industry. Thus, the market-share theory was adopted "to apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large.” (Id., at 512.) The Hymowitz decision did not create a new cause of action; it simply adjusted the rules governing a traditional cause of action to circumvent what in this limited context were unreasonable obstacles.
In the present case, however, neither plaintiffs, the Appellate Division, nor the dissent has identified any unique feature of DES litigation that justifies the novel proposition they advance — recognition of a multigenerational cause of action that we have refused to recognize in any other context. The fact that this is a DES case does not by itself justify a departure from the Albala rule.
Closer to the mark, though still falling short, is plaintiffs’ second argument. They note that Albala was a negligence case and that we left open the question whether a different result might obtain under a strict products liability theory,
On one hand, weighing somewhat more heavily in favor of recovery in a strict products liability action than in ordinary negligence actions is the policy of diverting the burden of product-caused injuries from the innocent victim to the manufacturer. The product manufacturer is generally in a better position than an individual tort-feasor to distribute this burden by passing the costs along to customers in the cost of the product. This is one justification offered for holding manufacturers of defective products strictly liable for injury caused by their products without regard to privity, foreseeability or due care (see, Codling v Paglia,
Of course, imposing liability on the manufacturer in such circumstances also serves to encourage the development of safer products (Codling v Paglia, supra, at 341; Sukljian v Ross & Son Co.,
Despite these considerations, the countervailing ones remain strong enough to preclude us from recognizing a cause of action here. To begin, the concerns we identified in Albala are present in equal measure here. The nature of the plaintiffs’ injuries in both cases — birth defects — and their cause — harm to the mothers’ reproductive systems before the children were conceived — are indistinguishable for these purposes. They raise the same vexing questions with the same "staggering implications” (Albala v City of New York, supra, at 273).
At the same time, limiting liability in this fashion does not unduly impair the deterrent purposes of tort liability. The manufacturers remain amenable to suit by all those injured by exposure to their product, a class whose size is commensurate with the risk created. In addition, we note that the tort system is not the only means of encouraging prescription drug safety; the Federal Food and Drug Administration has primary responsibility for that task (see, Note, A Question of Competence: The Judicial Role in the Regulation of Pharmaceuticals, 103 Harv L Rev 773). We do not suggest, as some have (see, id.), that for this reason the judicial system should abandon its traditional role. But in light of the FDA’s responsibility in this area, the need for the tort system to promote prescription drug safety is at least diminished.
That the product involved here is a prescription drug raises other considerations as well. First, as in most prescription drug cases (see, Vinson & Slaughter, Products Liability: Pharmaceutical Drug Cases, at 123-140), liability here is predicated on a failure to warn of dangers of which the manufacturers knew or with adequate testing should have known. Such a claim, though it may be couched in terms of strict liability, is indistinguishable from a negligence claim (see, Wolfgruber v Upjohn Co.,
More important, however, is recognition that public policy favors the availability of prescription drugs even though most carry some risks (see, Brown v Superior Ct., 44 Cal 3d 1049,
The dissent would have us believe that this case involves nothing but application of straightforward strict products liability doctrine. But this case is fundamentally different in the same way that Albala was fundamentally different from other negligence cases. In neither this case nor Albala was the infant plaintiff exposed to the defendants’ dangerous product or negligent conduct; rather, both were injured as a consequence of injuries to the reproductive systems of their mothers.
We agree with the dissenter that " Tike cases should be treated alike’.” (Dissenting opn, at 397.) This is not only a fundamental principle of justice, it is also the underpinning of the doctrine of stare decisis. It is, indeed, precisely why we are bound to apply the rule of Albala here, in the absence of some difference between the two cases upon which a principled distinction can be drawn.
The dissent, however, discounts the precedential value of Albala because it was based on "policy grounds” and therefore —in the dissenter’s view — "poses no legal bar to recovery” (dissenting opn, at 394). That the Albala rule is based on policy grounds, however, should not diminish its status as a rule of law. All legal rules, including those the dissent relies upon, are policy-based.
By adhering to Albala, therefore, our decision today follows established law. The dissenter, on the other hand, would expand liability beyond traditional bounds in the face of precedent from this court to the contrary, and accuses the majority of usurping the legislative function by failing to do so (dissenting opn, at 397). It strikes us as a unique view of the judicial role that would allow the court to expand liability at
In sum, the distinctions between this case and Albala provide no basis for a departure from the rule that an injury to a mother which results in injuries to a later-conceived child does not establish a cause of action in favor of the child against the original tort-feasor. For this reason, we decline to recognize a cause of action on behalf of plaintiff Karen En-right.
Accordingly, the order of the Appellate Division should be modified, with costs to defendants, by granting defendants’ motions for summary judgment dismissing the third cause of action and, as so modified, affirmed. The certified question should be answered in the affirmative.
Notes
. It is true enough, as the dissent points out, that CPLR 214-c is a remedial statute and such statutes should be "liberally construed to effectuate their aims” (dissenting opn, at 392). But even a remedial statute must be given a meaning consistent with the words chosen by the Legislature — those words define the scope of the remedy that the Legislature deemed appropriate. In our view, the role of the courts is to give effect not only to the remedy, but also to the words that delimit the remedy. Under the dissenter’s formulation, apparently, the courts are free to extend the remedy as far as they see fit; the statute merely provides a starting point and a direction.
. This — not fear of defensive medicine — was what we identified in Albala as "the central concern” that led to the policy choice we made in that case (see,
Dissenting Opinion
(dissenting). Karen Enright is one of a class of thousands of persons who have allegedly suffered devastating abnormalities and injuries resulting from defendants’ marketing of DES. Is there any basis in the law or social policy or any principled reason in justice and fairness for holding that she — unlike other members of the class— should not be permitted to prove her case? I am convinced there is no such basis or reason. Today, however, in what appears to mark an abrupt change in the course of New York strict products liability jurisprudence, a cut-back on recent precedent and a rejection of policy established by the Legislature and accepted by our Court, the majority denies her the right to sue.
Under settled strict products doctrine (see, e.g., Codling v Paglia,
Preliminarily, I note that the question of whether there can be a recovery in a products liability case for a preconception injury is before us in a dismissal motion under CPLR 3211 (a) (7). Thus, the case presents no legal hurdles with respect to foreseeability or causation. Clearly it cannot be said as a matter of law — assuming it was foreseeable that Karen’s mother’s uterus might be deformed from the DES — that it was not also foreseeable that Karen Enright would be born prematurely because of this deformity and afflicted with cerebral palsy and the other appalling consequences from which she suffers. Nor is the possibility of additional difficulties in establishing causation at trial a reason for dismissal (see, Woods v Lancet,
The matrix of social policy and legal precedent on which Karen Enright founds her claim has been constructed by the Legislature and our Court. In 1986, the Legislature passed the Governor’s Program Toxic Torts bill and adopted a "discovery” Statute of Limitations (CPLR 214-c) for the express purpose of remedying the injustice of denying any right to relief to persons suffering from the latent effects of injuries from DES and other substances (L 1986, ch 682). In signing the Toxic Torts bill into law, the Governor noted that "this measure * * * remedies a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having an opportunity to present their case in court[,]” that "[t]his measure remedies the injustices suffered by all of the currently known categories of victims of exposure * * * including] persons who have suffered serious injuries as a result of exposure to diethylstilbestrol (DES)” and that "this legislation culminates a multiyear effort by these victims to achieve this long overdue reform in our law. It is a victory for justice, and an example
In Hymowitz v Lilly & Co. (
"Indeed, it would be inconsistent with the reasonable expectations of a modern society to say to these plaintiffs that because of the insidious nature of an injury that long remains dormant, and because so many manufacturers, each behind a curtain, contributed to the devastation, the cost of injury should be borne by the innocent and not the wrongdoers. This is particularly so where the Legislature consciously created these expectations by reviving hundreds of DES cases. Consequently, the ever-evolving dictates of justice and fairness, which are the heart of our common-law system, require formation of a remedy for injuries caused by DES (see, Woods v Lancet,303 NY 349 , 355; see, also,*392 Kaye, The Human Dimension in Appellate Judging: A Brief Reflection on a Timeless Concern, 73 Cornell L Rev 1004).” (Id., at 507 [emphasis added].)
The majority, nonetheless, gives CPLR 214-c a narrow reading as support for its refusal to recognize Karen Enright’s claim, suggesting that "[i]mplicit in [its] language is the notion that some contact with the substance is essential” (majority opn, at 385). Nothing in the statute’s legislative history nor in its wording leads to this construction. Indeed, "exposure” under the statute "means direct or indirect exposure by absorption, contact, ingestion, inhalation or injection” (CPLR 214-c [1] [emphasis added]). As the Commentary notes, the new discovery rule applies "when the plaintiff has been the victim of exposure to a toxic substance, the critical term 'exposure’ is broadly defined” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-c:l, at 631 [emphasis added]). Given the broad language in the statute and the legislative history, the majority’s unduly constricted reading of the statute is inconsistent with the fundamental notion that remedial statutes are to be liberally construed to effectuate their aims and to promote justice (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 321).
In Codling v Paglia (
First, the majority cites defendants’ arguments concerning the "staggering implications” and "rippling effects” (majority opn, at 386, 387) that a decision upholding Karen Enright’s claim
Second, the majority suggests that permitting a cause of action for Karen Enright could result in "overdeterrence — the possibility that research will be discouraged or beneficial drugs withheld from the market.” (Majority opn, at 388.) But in deciding whether a particular claim for injuries from DES should be sustained, the deterrence factor is inconsequential. The wrongful conduct of the drug companies in producing and marketing DES and similarly harmful products for use by pregnant women stopped more than a generation ago when the enormity of the damage from DES became known. The sole question now involves the remedy for this past wrong, not deterrence: i.e., whether the remedy for DES victims made possible by the Legislature in CPLR 214-c and given effect by our Court in Hymowitz should be withheld from a granddaughter who suffers injuries from this wrong. But even if deterrence is assumed to be a relevant issue, should we be any less concerned with deterring the development of unsafe drugs which may cause latent damage to the third generation than to the second? Again, I think not.
Finally, in what has the ring of an economic cost-benefit analysis, the majority suggests that its generational line-drawing is proper because the manufacturers’ exposure to liability
II
As the primary support for its decision, the majority refers to Albala v City of New York (
“Under a products liability theory, once a defect in manufacture or design is established or there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care (Codling v Paglia,32 NY2d 330 ). Accordingly, the necessity of establishing manageable bounds for liability is conspicuously absent. Since Jorgensen was not therefore concerned with the policy issues presented in the instant appeal, any reliance thereon is misplaced (see, also, Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke LJ 1401, 1436, 1438).” ad., at 274, n [emphasis added].)
Thus, as the Albala opinion makes clear (id., at 274, n), the single act of malpractice in that case did not involve the compelling social and economic policies which prompted our adoption of strict products liability (see, e.g., Codling v Paglia, supra, at 338-342; Prosser and Keeton, op. cit., § 98; infra, at 392). More importantly, Albala implicated none of the deeply felt special concerns for the victims of the widespread marketing of DES which influenced the enactment of CPLR 214-c (see, Governor’s Mem of approval, op. cit., at 3182-3184; Besser v Squibb & Sons,
In addition to what would seem to be the decisive policy differences between a malpractice action and a strict products liability action based on toxic tort, there is one significant factor impelling the Court’s decision in Albala that has no bearing here — “the undesirable impact of encouraging the practice of 'defensive medicine’.” (Albala v City of New York,
*396 "A physician faced with the alternative of saving a patient’s life by administering a treatment involving the possibility of adverse consequences to later conceived offspring of that patient would, if exposed to liability of the magnitude considered in this case, undoubtedly be inclined to advise against the treatment rather than risk the possibility of having to recompense a child born with a handicap. Accordingly, society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger. ” (Id., at 274 [emphasis added].)
Karen Enright’s case, of course, does not involve the doctor-patient relationship and does not concern questions pertaining to the standard of knowledge, ability and care required of physicians. No "undesirable impact” of encouraging defensive medicine can result from a case of strict products liability based on the marketing of an unsafe drug where — as the Albala Court, itself, noted — "once * * * there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care (Codling v Paglia,
Moreover, this case presents none of the difficult moral dilemmas or problems of medical ethics (referred to in Albala) which can confront a physician called upon to render medical treatment to a mother which may possibly. impair her offspring. The sole question here is whether Karen Enright, an innocent member of the class of persons adversely affected by DES, should be permitted to recover. None of the policy considerations in Albala suggests that she should not be.
Ill
I am convinced that existing legal doctrine and established policy point unequivocally to a decision upholding Karen Enright’s cause of action. Let us assume for the sake of argument, however, that this is not so and that the appeal presents a "hard case” where there are no clearly discernible legal or policy guidelines. On this assumption, is there any underlying principled reason in fairness, justice or moral doctrine why Karen Enright’s claim should be turned away?
First, Karen Enright is a victim of what — if the allegations of her complaint are proven — amounts to a wrong of enormous proportions which inflicted grievous injuries on her and countless other innocent persons. Unless her case is barred on some legal or policy ground, she should be justly compensated for her injuries to the extent that our judicial system can accomplish this. Second, she is damaged no less than other victims of DES who make up the class. If they are permitted to recover, so should she be. To say that Karen Enright cannot recover is to abrogate one of the most basic of all principles — that "like cases should be treated alike”.
Our established strict products liability jurisprudence mandated by considerations of "justice and common sense” (see, e.g., Hymowitz v Lilly & Co., supra; Codling v Paglia, supra), the compelling social policies prompting the adoption of the Toxic Torts bill (CPLR 214-c), decisions in other jurisdictions allowing recovery for preconception torts and the legal commentary all call for a decision permitting Karen Enright to prove her claim (see, Jorgensen v Meade Johnson Labs., 483 F2d 237, supra; Renslow v Mennonite Hosp., 67 Ill 2d 348,
Judges Simons, Kaye, Alexander and Titone concur with Chief Judge Wachtler; Judge Hancock, Jr., dissents in part and votes to affirm in a separate opinion; Judge Bellacosa taking no part.
Order modified, etc.
. The Court in Hymowitz in devising its national market-share formulation emphasized that its action was prompted by the unusual nature of the problems caused by DES, in these words:
"We stress, however, that the DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, genetically marketed product, which, causes injury many years later, and which has evoked a legislative response reviving previously barred actions. Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action.” (73 NY2d 487 , 508 [emphasis added].)
The majority suggests (majority opn, at 385) that DES strict products cases are not special and should be treated no differently from other tort cases such as malpractice. Such suggestion is clearly at odds with the above-quoted passage from Hymowitz and with the record of special concern for DES victims shown by the Legislature (see, e.g., Governor’s Mem of approval, July 30,1986,1986 McKinney’s Session Laws of NY, at 3182) and by our Court in Hymowitz.
. To be sure, as the majority points out (majority opn, at 388), both this case and Albala are "different from other negligence cases” in that in both the plaintiffs "were injured as a consequence of injuries to the reproductive