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Kelley v. Eli Lilly and Co.

April 27, 2007


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on the defendant's Motion [12] for Summary Judgment. Upon consideration of the defendant's motion, the plaintiff's opposition [14] thereto, the defendant's reply [21] brief, the applicable law, and the entire record herein, the Court concludes that the defendant's motion will be GRANTED. The Court's reasoning is set forth below.


While living in Massachusetts, pregnant with the plaintiff, the plaintiff's mother was allegedly prescribed Diethylstilbestrol ("DES") by Dr. Safon in 1970 and 1971. (Def. Mot. 3.) The plaintiff's mother was allegedly prescribed DES even through she was not experiencing any unusual symptoms during her pregnancy. (Id.) The plaintiff was subsequently born at the Boston Hospital for Women, in Boston, Massachusetts, on August 24, 1971. (Id.) The physician who allegedly prescribed DES to the plaintiff's mother, Dr. Safon, is now deceased. (Id.) According to both parties, there are no medical records demonstrating that Dr. Safon prescribed to the plaintiff's mother the defendant's DES, as opposed to a generic prescription or a specific prescription for another drug company's brand of DES. (Id.) In fact, both parties agree that there are no medical records or prescription records demonstrating that Dr. Safon prescribed the plaintiff's mother DES at all. (Id.)

The drug DES itself was never proprietary to any company. (Id. at 4.) During the time period that the plaintiff's mother allegedly ingested DES, there were only 6-8 national companies that produced DES and a number of companies who acted as local rebottlers, selling DES regionally. (Pl. Reply Br. 6.) Federal Regulations at the time of the plaintiff's mother's pregnancy required all manufacturers of prescription medications, such as DES, to provide instructions and warnings for physicians on prescription medications that could only be obtained through the order of a licensed medical practitioner. (Id.) The defendant, in producing its product literature never expressly rejected its use in pregnant women, having made reference to the use of DES in pregnant women no less than five times without warning or the risks or advising against its use during pregnancy. (Id. 6-7.)

Furthermore, the plaintiff has a letter, which if all inferences are given to the plaintiff, states that DES labeling was industry wide, with the defendant taking the lead with the Food and Drug Administration. (Id. at 7.) With the testimony of Dr. Richard Falk, the plaintiff contends that the defendant should have known and warned of the dangers of DES by 1953. (Id.) Through the testimony of Dr. Julius Piver, the plaintiff contends that had warnings regarding the dangers of taking DES during pregnancy, it would have been a departure from the standard of care for an obstetrician to prescribe DES to a pregnant woman. (Id.)

The defendant contends and the plaintiff admits that the plaintiff has provided no evidence that Dr. Safon ever read or consulted the defendant's product warnings and literature in determining whether or not to prescribe a medication to the plaintiff's mother. (Id.) However, the plaintiff has a statement from the Pharmacist, Steven Baker, who worked at the Drug Fair Pharmacy where the plaintiff's mother allegedly filled her DES prescriptions during the relevant time period. The plaintiff states Mr. Baker would testify that if a woman came into the pharmacy during the relevant time period with a prescription for "DES," "Stilbestrol," or Diethylstilbestrol," the defendant's brand would have been dispensed.

The defendant now comes before the Court asking for its motion for summary judgment to be granted on all counts. The defendant argues that they are entitled to summary judgment as a matter of law because the plaintiff cannot come forward with any evidence that her mother's treating and prescribing physicians read or relied on any warnings or statements made by the defendant in deciding to prescribe the defendant's product to the plaintiff's mother.


1. Choice of Law

Before this Court can address the defendant's motion for summary judgment on its merits, the Court must first determine the applicable law in this case. The basis for jurisdiction in this case is diversity of citizenship, pursuant to 28 U.S.C. § 1332(a)(1), and thus state law provides the substantive rules of law for this case. Erie R.R. v. Tompkins, 304 U.S. 64 (1938). In deciding which substantive rules of law to apply, Federal courts must apply the choice of law rules of the jurisdiction in which it sits. Eli Lilly & Co. v. Home Ins. Co., 764 F.2d 876, 882 (D.C.Cir. 1985), cert. denied 479 U.S. 1060 (citing Klaxon Co. v. Sentor Electric Mfg. Co., 313 U.S. 487 (1941)). In past DES cases, this Court has applied the choice of law principles based on the interest analysis theory and/or the lex loci delicti theory, as in where the injury occurred. Tidler v. Eli Lilly Co., 95 F.R.D. 332, 334-335 (D.D.C. 1982). Under both of these choice of law principles, the proper choice of law in this case would be Massachusetts state law.

Under the interest analysis theory, also known as the governmental interest analysis, there is an evaluation of the governmental policies underlying the applicable laws and a determination of which jurisdiction's policy would be more advanced by the application of its law to the facts of the case under review. District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C., 1995) (citing Hercules & Co. v. Shama Restaurant, 566 A.2d 31, 40-41 (D.C.1989)). In making this evaluation, the District of Columbia has relied in part on the four factors enumerated in the Restatement (Second) of Conflict of Laws § 145: a) the place where the injury occurred; b) the place where the conduct causing the injury occurred; c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and d) the place where the relationship is centered. Id. (citing Estrada v. Potomac Elec. Power Co., 488 A.2d 1359, 1361 n. 2 (D.C.1985)). Part of the test for determining which jurisdiction's policy would be best advanced is determining which jurisdiction has the most significant relationship to the dispute. Id. (citing Hercules, 566 A.2d at 41 n. 18 (explaining parenthetically that the governmental interests test and the most significant relationship test have sometimes been treated as separate approaches to choice of law questions, but the courts have applied a constructive blending of the two approaches).

In the present case, the plaintiff's exposure to DES took place in Massachusetts. (Def. Mot. 6-7.) Massachusetts was also: where the plaintiff's mother lived during the time of her pregnancy; where she was allegedly prescribed DES; where the mother allegedly filled her DES prescriptions; and ultimately the place where the plaintiff was born. (Id.) In light of these facts as applicable under both the ...

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