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