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BORTELL v. ELI LILLY AND COMPANY

October 20, 2005.

LINDA L. BORTELL, Plaintiff,
v.
ELI LILLY AND COMPANY, et al., Defendants.



The opinion of the court was delivered by: ELLEN HUVELLE, District Judge

MEMORANDUM OPINION

Before the Court is defendant Eli Lilly and Company's ("Eli Lilly") Motion for Summary Judgment ("Defs.' Mot."), joined by defendants Bristol-Myers Squibb Company ("Bristol-Myers"), Dart Industries, Inc. ("Dart"), GlaxoSmithKline, Inc. ("GSK"), and Premo Pharmaceutical Laboratories, Inc. ("Premo") (collectively "defendants"). Defendants argue that Pennsylvania law governs under the District of Columbia's choice of law rules and, therefore, plaintiff may not rely on market-share liability but must identify the manufacturer of the DES that her mother ingested. (Defs.' Mot. at 5-8.) Defendants further argue that they are entitled to summary judgment because plaintiff cannot produce sufficient evidence to meet her burden under Pennsylvania law. (Defs.' Mot. at 8-14.) For the reasons set forth below, the Court agrees and will grant defendants' motion.

BACKGROUND

  This case presents another chapter in the unfortunate history of diethylstilbestrol, commonly known as DES, a drug frequently prescribed from the 1940's to the 1970's as both a prophylactic and active remedy for pregnancy complications, particularly the prevention of miscarriages. See In re DES Cases, 789 F. Supp. 552, 558 (E.D.N.Y. 1992). The consequences for children whose mothers ingested DES during their pregnancies have been severe and well-documented. See generally Cynthia Orenberg, DES: The Complete Story, (St. Martin's 1981). These adverse effects include malformed reproductive organs, infertility, and rare forms of vaginal and cervical cancer in women, see R.M. Guiusti, K. Iwamoto & E.E. Hatch, Diethystilbestrol Revisited: A Review of the Long-term Health Effects, 122 Ann. Intern. Med. 778-88 (1995); E.E. Hatch et al., Cancer Risk in Women Exposed to Diethylstilbestrol in Utero, 280 JAMA 630-34 (1998); Arthur L. Herbst et al., Adenocarcinoma of the Vagina: Association of Maternal Stilbestrol Therapy With Tumor Appearance in Young Women, 284 New Engl. J. Med. 878 (1971), and genital malformation, reduced sperm counts and testicular disorders in men. Jorma Toppari et al., Male Reproductive Health and Environmental Xenoestrogens, 104 Envtl. Health Perspectives, Supp. 4, 741, 753-54 (1996).

  Plaintiff was born in Pennsylvania in 1962 and grew up there, but has lived outside the state since 1985 and is currently a resident of California. (Pl.'s Opposition to Defendant Eli Lilly's Motion for Summary Judgment (Pl.'s Opp'n) at 6.) Plaintiff's mother, Ruth Bortell, took DES during her pregnancy with plaintiff. (Defs.' Mot. at 2). Dr. Emerson Fackler, the physician who prescribed the DES, used the term "diethylstibestrol" in writing the prescription without specifying a particular brand. (Pl.'s Opp'n at 5.) Plaintiff's mother filled Dr. Fackler's prescriptions at the Rea and Derrick Pharmacy in Lemoyne, Pennsylvania. (Id. at 2.) In 2001, while a resident of California, plaintiff was diagnosed as infertile. (Id.) The following year, her doctor diagnosed her with a T-shaped uterus and stenotic cervix — classic manifestations of DES exposure. (Id.) In December 2002, plaintiff suffered a spontaneous miscarriage. (Id.) On May 7, 2004, plaintiff filed suit against defendants in the Superior Court for the District of Columbia seeking damages for injuries allegedly caused by in utero exposure to DES. On June 14, 2004, the case was removed by defendants to federal court under 28 U.S.C. §§ 1332 and 1441(b). Discovery closed on May 6, 2005, and defendants now move for summary judgment.

  ANALYSIS

  I. Summary Judgment Standard

  Rule 56 of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the non-moving party. Id. at 247-48; see also Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

  To escape summary judgment the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party must provide evidence that would permit a reasonable jury to find in the non-moving party's favor. Laningham, 813 F.2d at 1241. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). Nevertheless, "because summary judgment is a drastic measure, courts should grant it with caution so that no person will be deprived of his or her day in court to prove a disputed material factual issue." Greenberg v. Food & Drug Admin., 803 F.2d 1213, 1216 (D.C. Cir. 1986). For this reason, in considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255; see also Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).

  II. Choice of Law

  A federal court sitting in diversity jurisdiction must apply the choice of law rules of the forum state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); see also Gray v. Grain Dealers Mutual Ins. Co., 871 F.2d 1128, 1129 (D.C. Cir. 1989). The District of Columbia has adopted the "substantial interest" approach to choice of law questions. Greycoat Hanover F Street Ltd. P'ship v. Liberty Mut. Ins. Co., 657 A.2d 764, 767-68 (D.C. 1995). When faced with a choice of law in an action sounding in tort, a court in the District of Columbia will "balance the competing interests of the two jurisdictions, and apply the law of the jurisdiction with the more `substantial interest' in the resolution of the issue." Lamphier v. Wash. Hosp. Ctr., 524 A.2d 729, 731 (D.C. 1987); see also Jaffee v. Pallotta Teamworks, 374 F.3d 1223, 1227 (D.C. Cir. 2004). To determine which state maintains a more substantial interest, a court must apply the factors listed in Section 145 of the Restatement (Second) of Conflict of Laws. Herbert v. Dist. of Columbia, 808 A.2d 776, 779 (D.C. 2002). These include: (1) the place of injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, place of incorporation and place of business of the parties; and (4) the place where the relationship between the parties is centered. Restatement § 145(2).

  Plaintiff argues for application of California law, while defendants claim that Pennsylvania law should apply. Before undertaking a full choice of law analysis, under District of Columbia law a court must first determine whether both states have an interest in the application of its law to the dispute, otherwise a "false conflict" exists and the law of the interested state governs. Biscoe v. Arlington Cty., 738 F.2d 1352, 1360 (D.C. Cir. 1984). There is no dispute that the District of Columbia has no interest strong enough to merit application of its law in this case. Because, however, the policies of both California (the state where plaintiff resides) and Pennsylvania (the state where the drug was sold and ingested) would be advanced by application of its law to the dispute, there is a true conflict and the law of the state that "has a greater interest in the controversy" will govern. Id.

  Considering the first of the factors from Restatement § 145, the Court finds plaintiff's place of injury to be Pennsylvania. Plaintiff was exposed to DES in utero in Pennsylvania. The malformation of plaintiff's uterus and cervix occurred when plaintiff's reproductive system matured while she was still a resident of Pennsylvania. Though plaintiff's injuries were not discovered until she lived in California, the place of injury remains Pennsylvania.

  Moreover, aside from the manufacture of the drug, most of the conduct causing plaintiff's injuries occurred in Pennsylvania. The drug was shipped from a wholesaler within Pennsylvania to the Rea and Derrick Pharmacy. The drug was prescribed by a doctor in Pennsylvania and dispensed by a Pennsylvania pharmacy. Further, the last act necessary to cause plaintiff's injuries — her mother's ingestion of the drug — occurred in Pennsylvania. The third Restatement factor favors California, since plaintiff is a resident of and domiciled in California, and Eli Lilly is incorporated in Indiana and does business nationally, including in both California and Pennsylvania. Yet, like the first two factors, the fourth Restatement factor — the center of gravity of the parties' relationship — favors Pennsylvania. As discussed above, except for the manufacture of the drug and the diagnosis of the injury, all actions relevant to the injury occurred ...


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