Document ovvOYpNBZ9rbDQ7N55Y489yg

Arn* #g Vinyl m m Institute A Division of The Society of The Plastics Industry, Inc. REBEIXEfi no i9e7 StiaraM-CBOC Roy T. Gottesman ' Executive Director l. August 26, 1987 TO: The Vinyl Institute Legal Committee RE: New York State PVC Tort Revival Provision Please refer to my memorandum to you of August 12th in which I forwarded the letter and complaint received by BFGoodrich Company in the Mary Lampo et al The BFGoodrich action. I have now received the enclosed letter from Peter de la Cruz with a status report on this provision which is self-explanatory. I particularly call your attention to the "peculiar" provision in New York State procedural rules which allows an additional 60 days for service to a defendent meaning that we will not know until late September if there are any additional PVC-related cases. As before, if any of you have received complaints under this provision, please let me know. RTG/pmb enclosure CTL028821 Wayne Interchange Plaza II 155 Route 46 West Wayne, NJ 07470 (201) 890-9299 JOftCRH C KCLLCn jcromcm hcckman CHARLESM MCCHAM WILLIAM M OnOMCSANI. jn MALCOLM O MaCARTHUR WATMC V SLACK MARTIN W scncoviei john s CLonco CARQLC C HAIMII micmacl r momkonc MARK rox CVCN8 JOHN B DUBCCK RCTIR LIU CKUX CMkistinc A. MCAOHCR SHIRLEY % rjJIMOTO LAWKCNCC n MALRRlN RALRM a SIMMONS Keren a sussc* COWARD L KORWCK cnncNec o jones JOHN 8. RICHARDS' C OOUOLAS JARRETT SHEILA A MILLAK russell h. rox JAN M WAMSTIO ILCNC RINOEL HCLLCn SUSAN T. CONTI SUSAN J SLUM PATRICK U HURD" s. ckaio TAurrcsT OAVIO H JCTT MAUKCCN A O'COMNCLL1 KANCNC COCLSCnO* NINA M BINSTCIN"* SKIAN o RONDON'" MASK A sicvens*** ADMITTED IN RCNNSYLVAMIA ONLY ADMlTTCO IN VIKGINIA ONLY 'ADMITTED IN MARYLAND ONLY LAW OFFICES Keller and Heckman 1150 17'" STREET. N.W. SUITE lOOO RECEIVED WASHINGTON. D.C. 2003 -- _, ,, _ ftUG 1 d (202) 950-5000 DB. R. I. GOTTESMAN August 25, 1987 sciCMTinc STArr oahicl ft otxccn ounwARor oooocn CHARLCS V SRCOCn tclcx AS 93991 TCLCCOniCR (too tsa resc CA8LC Aooncftft "KCLMAN' WRITER S DIRECT OIAL NUMB (202) 956-5641 Mr. Roy T. Gottesman Executive Director The Vinyl Institute Wayne Interchange Plaza II 155 Route 46 West Wayne, New Jersey 07470 Re: Mary Lampo and David Lampo v. The B.F. Goodrich Company Dear Roy: To provide you with a status report on the New York State Toxic Tort Revival Provision, we contacted the attorneys representing the asbestos defendants as well as the DES manu facturers. We learned that there are 1200 to 1500 asbestos cases that have been brought under this revival revision. Frankly, they told us that they were expecting more cases and, therefore, they are not sure if they are going to take the same hard-nosed legal position that they originally anticipated. The DES manufacturers estimate that there are 500 to 600 cases that have been brought against them under this provision. In late July, the DES defendants presented their "un constitutionality argument" before Judge Gammerman who is a New York State trial court judge. After approximately 20 minutes of argument the judge found the statute consitutional. As soon as the order of judgement is entered, they will have 30 days within which to appeal. It is the opinion of their lawyer that the case will be appealed, however, the companies are evaluat ing the opinion very closely. Both lawyers warned me that we could have suits pending and not know about them because of a peculiar provision in the New York procedural rules. Apparently, if a plaintiff has dif- CTL028822 Mr. Roy T. Gottesman August 24, 1987 Page 2 Keller and Heckman ficulty in serving a defendant, the plaintiff can serve the summons on the sheriff (which will toll the running of the statute of limitations) and then have an additional sixty days to serve the party. Accordingly, we will not know if we are completely out of the danger zone until late in September when that 60 days runs. Enclosed for your review is a copy of Judge Gammerman's decision. Should you have any questions or desire further in formation, please do not hesitate to contact me. Sincejiely yours. Enclosure Peter L. de la Cruz CTL028823 HYMOWITZ v. EU LILLY A CO-J,, ,, pharmaceutical product liability ac- li.*)' .h Ml"dy Hymowlt* alleges that she developed cancer as a result of oy me resulting sonny to predict the fu ture cost* of such revival. The Legislature was apparently concerned that under a broader revival atatute. the large number of unknown victim* would create unpre f"DES*1 I*Su 10 t)Jf'hyl'"bostrol dictable risks and coat*. ( ues ), a synthetic estrogen taken bv her mother In )SJ| during pregnancy lo prevent possible miscarriage. ^ y 10 Defendnta challenge the revival atatute Dalnllff was born on Dee. 11 lisi The ' on equal protection and due process cancerous condition for which plainTTff grounds, arguing that the statute la the s19e7e9k. sUnddaemr athgeesstaaltluetgfeodf lHy maD'DKeaaredfiJn Srf'/f'* ,CPLR JOa' 2U) Plaintiff waa barred from commcr.r|np lull |n n^, >m bcr. 1975 (three j.-xrs xffer re.- TMe' result of an arbitrary and Irrational politi cal arrangement arrived at without ratio nal guidelines of scientific certainty or public twee slty. Defend 11 . further argue that ' l<g''tMve C` . . ,- f-r limiting -rr of : p::-l/,n:( brings U.fS '.e. the miM.ln./ ot potential claimants and Ion how ever, under the provisions of the , costs Is not related to the ostensible objec p1alnMfr*i*l4tU'* (U 1988 Ch- 682 <> tive ot the legtstatloa It. to allow victim* . , ,, llff jnov* pursuant to CPLR J212 I of latent Injuries to maintain actions. De K0 sltlryikeeoanf*fhiram*aCtihv4e,'rde^fe,nnses raciosnesdlltbuv3: fendants contend that the revival provi sion must be stricken on equal protection r h TMvlv*' ,l4lute wd allerInj that the action Is time barred under grounds, as an underlncluslve random penalty without scientific basis, on five i5p..XU,C 0/ ,,m,Ut,0n` arbitrarily chosen substances and their manufacturer*. It la contended that the *hh^Mnrd*'vls E11 Ully *nd Co- ("Lllly"( prior exposure atatute of limitations f.JJ0'1 laboratories ("Abbott") and The would be more than adequate tor victims Upjohn Company ("Upjohn") seek sum* of the five specified substances. nwy'Judgment and dismiss* of the lorn- Defendant Lilly urge* that generally, P.*'"1 " bard by the statute ofllmlU- chemical Injury claims accrue at the time iee.^bsent the ava'lablllty of the of exposure (here. In ulero). Under the Df^nVnC.0nl"'u,lonaI revlv> statute* three year exposure based statute of limi Pe^*nd*nt - R- Squibb A Sana tations (tolled to the age of majority) oUln'titfb") i'pp03c, ,he relief sought by sut of co?;cnds ,h*l before the 1** claimants could being suit until age 21. Lilly contends that the most DES patients InK,?/ `he constitutionality of the revival statute Is determined further discovery la lranr<tfd `ht ot whether .ueh ! develop cancer by the age of 19, and there fore, their claims would not be time barred before coming aware of their traordlnary circumstances exist In this w^flehVUivK'V,!nvoCE,lon of ,h* statute tlma iSbk " """""UI* Injuries. Defendants also claim a violation of th* due process clause, In that the statute con stitutes an arbitrary deprivation of the ffiS'KiS substantive property right to rely upon the absence ot the claims. Defendants as ms te;,ta sert that dismissal (or the passage of the applicable time bar) gives rise to aubstan- live property rights which as a general The revival portion of the 19S6 tort re* rule, may not be abrogated and that the form legislation provides that actions exceptional circumstances to permit re seeking damages for personal Injury, vival are not present (see Callewskl v. H. property damage or death caused vy the Hrr's A Co.. 301 N.Y. 164). fstent effects of exposure to five aub- C...-.'d upon the Impact wh.- !'-ey allege stances (DES, asbestos, tungsten-carbide, . .M.biiXi i;-. ; rr pn..j , ly 1 . \ *cn- chlordane and polyvinyl-chloride) that dant* urge the rj pllcr.bitilj vf t!> let scru were time barred or dismissed, as of the effective date of the statute, may be Insti tuted .. within one yeAr from the effec tive dale of this act." The al.Hule was --J on J-.'y 1. l'r' =nd v.ss Ly the Governor on July 30, 1986. In addition to the revival provision for the five specified substances (4), the new tort reform legislation adopted a general discovery based statute of limitation* for Injuries esused by latent effect* of expo sure to any substnace (CPLR 214-c(2J). Under subsection 2, a victim may assert a cause of action within three year* form the date of the Injury waa or should have been discovered. The provision for revival of claims (4) and the discovery based statute of limita tions (2) were Intended by the Legisla ture to remedy the perceived Injustice caused by the application of CPIJl 214. 208 (the exposure based statute of limita tions). and to provide legal recourse for Injuries caus'd by l<'!<at effects of l -sic aoL.->l..-,-i :Llhpiu. ..> * ii c t:. ivied to reiiu to 'he failure ol the old statute to recognise that such Injuries may not ap pear until years sftcr exposure, long after the expiration of the period wllhln which actions may be instituted. Legislative history Indicates that the five named substances were distinguished from other toxic substances (2) as a re sult of compromise between the Assembly (which had voted to permit revival for all tiny or an intermediate standard of re view rather than a rational basla examination. As a genera) rule, state statutes of limi tation reviving time barred actions are not violative of due process. Statutes of limitation represent a public policy state ment with respect to the privilege to liti gate. `JTJhe history of plea* of limitations shows them to be good only by legislative grace and to subject to a relatively large degree of legislative control" (Chase Se curities Corp. v. Donaldson, 323 U.S. 304,314). The expiration of the applicable time period does not eliminate a cause of action but rather, suspends the court'* power to grant a remedy (Hulbert v. Clark, 123 N.Y. 293) In other words, stat ute* of limitations relate to the svaltbtllty of a remedy and not to the destruction of any fundamental right. In th* past, New York courts have up held the power of the slate legislature to extend or revise time birrcii ''alms. In Gnttes.klv If Ffe-'r A C- '-.W i',-|, liit court Lund Wist a rol . tl stelute Is not necessarily void as a w v ol proper ty without due process. The court slated that "jTJhc legislature may constitutional ly revive a persona) cause of action where the circumstances are exceptional and are such a* to aatlsfy the court that seri ous Injustice would result to plaintiffs not guilty of any fault If the Intention of the legislature were not effected." toxic substances) and the Senate which wanted to limit revival. The Legislature CTL028824 ultimately limited revival based upon th* (282 A D. 444. afrd. 306 N Y. K6j the court f fid that the legislature acted w!:Mn the limits of the Constitution is extending the time period within which the victim* of caissons disease could seek redress. The legislature sought to remedy the Injustice caused to victims of a disease which In many cases did not product symptoms until after the period for filing Workmen's Compensation claim* has passed. The court found thot under the circumstances, the legislature, by extending the time within 'which to Institute a claim, waa merely complying with the simple de mands of Ju .`.tea. A " e '* ? r-c--S ''.'I'r-.- *'a raised by manuf 'Jturer* of Agent Or ange regarding the constitutionality of the recent atatute extending the time within which victims of dioxin could sue tn New York (CHLR 214 b). There, as here, defendants challenged the law oa the ground that It permitted commence ment of actions already time barred un der the New York atatute of limitation* otherwise applicable tor Injuries caused by toxic chemicals. In approving the pro posed settlement ot the Agent Orange liti gation, the court (Weinstein, J.), rejected defendants' federal and state constitution al challenges to revival of otherwise time barred claims by the New York legisla ture (In re Agent Orange Product Liabili ty Litigation, 697 F. Supp. 740 IEXLVT. 19641). Here, a* In Gallesskl v. McCann and the Agent Orange case, the legislature, la re viving time barred causes of action, ex pressed the public policy of giving prefer ence to plaintiffs prh Dcge to litigate over defendants' protection from stale or time barred claim*. The lesue raised la wheth er there ti a reasonable connection be tween the revival statute and the promo tion ot a legitimate state Interest, here, health, safety and welfare (Ncttleton Co. v. Diamond, 27 N.Y. 2d 182. 193). In exam ining the constitutionality of statutes gen erally, the court must bear In mind the atrong presumption that the legislature Investigated the problem It addressed and discovered the need for the legislation passed (Matter of Taylor v. Slae, 33 N.Y. 2d 337). The court mutt determine: (1) whether the legislature was acting In pur- ault ot permlsaible state objectives and, U so: (2) were the means adopted reason ably related to the accomplishment of those objectives (Montgomery v. Daniels, 38 N.Y. 2d 61, 34). Here, the legislature acted within per missible objectives relating to health, aafety and welfare by reviving biases of action based ,on latent effect of expo"re to tn*: ihstanof*. *Vi <.re a uf what the i,- tab.'Lhcd is ralsvd, the court ah?. !J ac cept the opinion of the legislature (Lin coln Bldg. Assoc, v. Barr, 1 N.Y. 2d 413,413, app dlsm 333 U S. 12. clllng Old Dearborn* Co. v. Seagram Corp., 299 U S. 163. 196). la enacting the challenged statute, the legis lature expressed the view that victims of th* latent effects of certain toxic aubatances were t-clnj; denied l*jal rece"-e by (!:< sulu.nalit application"! the expo sure based statute of limitation* often enough to Justify an exception to It* gen eral application. A reasonable relation ship exist* between the reform and the objective of remedying the defects or In equities under (he prior statutue of limita tion*. There Is considerable support for the position upon which the legislature acted: the need to provide a forum for Innocent victims who might otherwise be time barred before becoming aware of their Injuries. Indeed, this case Is Illustra tive of that need That studies or dais may refute the legislative conclusions Is not dispositive. A* the Court of Appeals stated. (tjhe judiciary, however, li not called on to weigh the relative worth of data on to weigh the relative worth of data or argumenti which may be marahaled on either aide aa to the wisdom of determination made by the Legislature In the realm of policy. 'Whether the enactment la wise or unwise, whether It la baaed on sound eco nomic theory, whether It ia the beat means to achieve the desired result, whelhcr. In short, the legislative discre tion within Its prescribed limits should be exercised In a particular manner, are matters for the judgment of the legisla ture, a-'d the eirncM conflict of serious c-pL.Iun di.s nut il.'IIuC to trl: g 11,cm wlthtn (he range of judicial cognisance* (Montgomery v, Daniels, 38 N.Y, 2d 41, 38, Quoting Chicago, Burlington k Quincy RR Co v. McGuire, 219 U.S. 549. 369). Given the substantial degree of leglaltlve consideration to the need for the chal lenged tort reform, It would be Inappro priate to express an opinion regarding the factual predicate for the statute. Its philo sophical Justification or the wisdom of Its enactment (see Montgomery v. Daniels, Id. at S3). In addition, staleness of claims based on the loss of evidence over Ume la not of significance. Defendants have been litigating similar non-Ume barred DES cases for years. Many of the same concepts relevant to the due process analysis are applicable to defendants' equsl protection challenge. Defendants argue that the revival statute la underlnclusivc; It arbitrarily, without scientific basis singles out five substances for the additional burden of revival while excluding other toxic chemicals which cause latent Injuries; It discriminates against out-of-state manufacturers; and It denies to defendant the protection of new Article 16 and the 2 discovery based statute of limitations. Equal protection essentially requries that all persers similarly situated should be treated alike (Plycr r. Doe, 457 U.S. 202). As with the due process argument, the court must determine the approprtata standard to review. When social legisla tion relating to the public health la chal lenged, as here, the standard of review la rather narrow. The revival statute, con trary to defendants' contentions, does not classify on the basis of a suspect (of qua si-suspect) class or Impair a fundamental right and therefore a strict scrutiny stan dard ia not applicable: The legislation must be upheld if the chrllerjed classifi cation (targeting the I.- - a 'ancea to the cvh.-' *i cf l '> ,.1,0 .'c.-.'s causing latent Injuries) Is rationally re lated to a legitimate slate purpose (West ern k S. tns. Co. v. Board of Equalization, 451 U.S. 648, 657; Trump v. Chu, 65 N.T. 3d 20. IS). Under the rational basis analysis, 1/ any conceivable facts support the classifica tion, there Is no violation of the equal pro tection clause. A law may not be arbitrary or Irrational and must be rcasonsbly re lated to some "manifest evil" which naod only be "reasonably apprehended." It la only as a last resort that courts will In validate legislation as unconstitutional (Maresca v. Cuomo, 64 N.Y. 2d 242, 290). Further, the ataled purpose Justifying Uia statute need not be tti primary purpose (McGuIncss v. Royster, 410 U.S. 263, 276) and the court may even hypothesize the motives of the legislature to discern any convelvable legitimate goal furthered by the provision being attached (Maresca v. Cuomo, supra, at 251, quoting Weinberger V. Salfl. 422 U.S. 749, 790). ut-;> ndants' objection to (he distinctions drawn by the legislature between Ihe five n.aUnnls and other tvxlc substances ta baaed partly upon the different treatment accorded Ihe two groups under the 1M4 tort reform bill. Deft ndants point to tbs additional burden of revival and the ap parent Inapplicability of Article 16 to the revival section. Examination of Ihe provi sion (as It relates to DES cases) and the legislative history, reveals significant reasons to Justify those distinctions, baaed upon the perceived realities of the latent effects of exposure to the five substances, the ability to (certain a finite group of potential claimants and conseqently to l-..". t -.t i... _ '' . mlc costs of revival. Given II... reasonable basis for Ihe distinction drawn by the leg islature, the alleged lack of scientific pre cision Involved In drawing the line for re vival may be disregarded. Here, the statutory classification doe* not result la auch disparate treatment as to be arbi trary, Irrational or Invidiously discrimi natory (see Dandrldge v. Williams, 897 U.S. 471; see also Parker 86th Associates . City of New York, 93 A.DJd, SM, 394, affd 59 N.Y.2d 986). The legislation and the challenged clas sification, passes constitutional muster under a rational basts test or even under Ihe more demanding Intermediate statdard ("somewhere along the sliding scale between strict scrutiny ... and ration ba sis" (Montgomery v. Daniels, 38 N.Y.2d 41, 61). It cannot be said that the legislature acted unreasonably in selecting the five substances for special treatment. The con stitution It not offended merely because the classification Is not made with mathe matical or scientific exactitude or be cause In practice It results In some Inequi ty (Dandrldge v. Williams, aupra at 4S9; Montgomery v. Daniels, aupra, at 63). In enacting reform legislation, the legisla ture l{ permitted to proceed one step at a time and to address the part of the prob lem that appears most serious (William son v. Lee Optical Co., 348 U.8. 483. 488; Montgomery v. Daniels, aupra, at 62). Seen In Its most fundamental light, de fendant* object to the fact that the Um drawn by the legislature In enacting tort reform Includes them. Whenever the leg islature draws such a line some must bis Included, some excluded. Aa long aa the line drawn I* reasonable, the decision aa to where to draw It la left to the legisla ture and not the Judiciary (Village of Belle Terre v. Boraas, 416 U.S. 1, 8; Mont gomery v. Daniels, 38 N.Y.2d 41). Squibb maintains that a theory of liabil ity under which a claimant may maintain an action without Identifying the particu lar manufacturer of the DES taken by her mother la unconstitutional. Squibb con tends that under the separation of powera doctrine such a radical restructuring of legislature Based upon a mistaken belief that causation need not be shown under the challenged theories. It argue* that ab sent causation plaintiff larks standing and this court Is pc ..crlcss lo [ -ide a remedy. r).fi...:.uH'* contention lack merit and wholly fall to meet the stringent burden to establish unconstitutionally. Accordingly, plaintiffs motion to strlk* the. a...f.f..i.r.m....a...t.iv...e wdevfMen-isifetisi cch/iaalnlecnngffiinngf thhee revival s..t.a..t.u...t.e...a--* unconstitutional amnd al leging that this action li timo barred, 1* grf.nted. P'f *-** err** n-'.ll'-r.* for *.:! ** b;r,id by the ..s..t.a...t.u..t..e..of llrr.ltallor.s a,r-ei denied. This constitutes the decision and ordar of tha court CTL028825 1 \ PART 27 Justice Hammerman 4fljzaheth t:gue v. e.r. squidb 50NS. INC.-- Defendants Rexall Drug C^.-r.rany i P.cxail"). The Upjohn Compa-v i 'vpjGhn'i and Abbott I-aboraiorics. Att-ctl I move pursuant to CPLR 3212 ;-r summary Judgment dismissing the :jmt based upon the conceded inabtllv Ol plaintiffs to Identify the particular Jia.nufacturer of the drug, dicthylstilbes;rol. ("DES") to which they were alleged'v exposed. Defendants contend that the r.r.M of recover on collective, nonidcnlilication or cor.ccrcd action theories of liai.i:ty has not been established in New Ycrk and urge the court to reject adoption c! such theories Defendants further con i':- d that if concerted action is a viable Im.s of liability, it should not be applica ble in a DES case. The motions are conslidatd for disposition. Plaintiffs seek to recover for injuries a >i ''dly sustained by Elizabeth Tigue a-.a v,\rna Margolics tnow deceased! as a rr*ult of the ingestion of DES by their .T.rthers. Sa>re Margolics proceeds on be half cf her daurther Mvma who died in ;S77 ai age 23. from clear ccll-adcnocarcir.oma of the cervix and vagina, a rare frem cf cancer in young women, associat(d with prenatal exposure to DES. Plain;;r: EMiateih Tigue w as diagnoses as hav ing vaginal adencsis. a prc-canccrous ccr.siflcn associated with DEC exposure. In -r.tch g.anaular tissue normally found In .he cervix is found in the vagina. Plain.."s' como'.amts allege breach of warran ty. negligence, strict liability, re ipsa lo quitur, concerted action and aiding and afcetur.g strlct liability. Historical Background: CES is a synthetic hormone that duplicr.rs the function of estrogen, a female sex hermone naturally present in women ar.d. ir. lesser amounts, in men. Estrogen ii essential for female sexual develop^feit and reproduction. DES was first ^^Bhesued in 1937 by British medical re- s.rchers. The drug was never patented. -d thus, rpuld be produced and marketed :.i .re Cnited Slates by any company ob- -.g Feed -end Drug Administration t' FDA"I approval of a New Drug Applica tion r.NDA"). By 1910 fen drug companies had filed NDAs rcaurilr.g approval to produce and --.sriel DES fur trraiment of menopause, sr.-iie vct-.it:s. gonorrheal vaginitis ar.d su--t.-css.cn of lactation None of the con- d::..--.s for r.ich this initial acpioval was s.'ccht re'aird to pregnancy. These fiJinrs w rre rejected tbv the FDA. it determining that the review process would be facilitat ed by me t colmg of clinical data produced by the drug companies into a master file wncsi wouid form the data base for the FDa decision. In 1941. tweleve pharma ceutical companies formed the "Small Committee to oool this clinical data for submission to the FDA. The joint clinical data was incorooreted in each company's resubmitted NDA and In September 1941. F"Dk aoproval was obtained for the use of EES The Small Committee was thereaf ter cutanded. In 1947 and 1948 a number of drug man ufacturers filed supplemental NDAs (or auihoruatlon to market DES. now for the treatment of certain pregnancy disorders relating to spontaneoua abortion or fetal death. The dosage proposed for this treat ment was many times stronger than the <2:sge previously approved in 1911. Tfie supplemental applications were primari ly based upon siuaies by two independent i researchers reported that the administra- : lion of additional estrogen in certain high i risk pregnancies appeared to reduce the i risk of miscarriage. FDA approval for use i of the drug in pregnancy was then given, i Hack of Product Indcntificatlon: The fundamental issue raised here land I the major problem faring these and many i other plaintiffs in these DES cases! is i their inability to identify the manufacture i er of the DES taken by the mothers of the I injured women and. thus, to directly con- | nect the injury to a particular defendant, t The DES taken by pregnant women was I produced under a chemically identical i formula and usually manufactured and ( prescribed gcnerically. Apparently, many j drug companies cannot locale or have j failed to kerp records of their DES mar- ' ket activity. Although that market was | j------- k.. . -!-*]! mimiter of romoa- j nics. entry and exist from the market was | fluid and it Is estimated that between 94 j and 300 pharmaceutical companies manu- i facturcd or marketed DES from 1947 to f 1971. j Injuries caused by prenatal exposure to j DES appear many years later. Over time. I the ability of a plaintiff to identify the I manuiacturer is. obviously reduced. The I memories or records of those who could I assist in identifying the manufacturer i (parents, physicians, pharmacists and I drug coinpanicsi fade or disappear. I Prior Holdings: j In this state, the general rule Is that a ! plaintiff has the burden of proof on prod- | net identification (Morrissey v. Conscva- i five Gas Corp.. 2SS A.D. 825 (19331. affd 1 I N.Y 2d 741 (19361). However, several non- i identification or collective liability theo- I rics have fcceq proposed and in some t cases siencd, lo deal with cases in which I the manufacturer of a product cannot be i identified. i In Bichler v. Lillv 4 Co.. (79 A.D.20 317 | (1st Dept. 19S1L affd 35 N.Y.2d 37] 119821). j a theory of concerted action liabillfty was i the basis of recovery even though the de- I fondant was not identified as the manu- i faclurer of the particular DES taken by j the plaintiffs mother. Indeed in Bischler, | the jury found that the plaintiff had not I established that I.illy manufactured the I DES taken by her mother. | Two theories of concerted action were i submitted to the jury, concerted action by | implied agreement and concerted action 1 by substantial assistance. The jury was i instructed ihai concerted action by agree- ' mem could be inferred from evidence of I consciously parallel actions, that such I consciously parallel action could be tne l basis ot a finding that the drug companies I had impliedly agreed to market DES for i pregnancy use without iirst testing the i drug on pregnant mice. The trial court's l charge with respect to concerted action i by substantial assistance permitted the l jury to find that the failure to test DES on i pregnant mice byh defendant Lilly sub- < stannallv aided or encouraged other com panies (including, presumablv. the com pany that inarKctcd the DES taken by i plaintiffs molhen to market without ap- | proDrute testing. The jury tuund that Lilly had acted In i concert, that the lailure lo lest was ' wrongful and that the injurious clfccts of DES were foreseeable. On appeal lo the Appellate Division, defendant argued that the trial court s concerted action charge was erroneous, and argument that the court auorcssed on its merits. S/L <Lcr*J&T iT'O- T~V<rAJ A) l *-T~ The Appellate Division found sufficient 1 evidence to support the jury s findings i and. in effect, aoopted the concerted ac- i lion theory of Uahiliiv charged by the in- I al court. When Bichlce rcacr.rd the Court of Appeals, a determination was maoe that Lilly had failed to properly except to the trial court's charge on concerted ac tion and concerted action liability was ap plicable only as the law of the case. The Court concluded that there was adequate evidence to support concerted action lia bility by conscious parallelism or sub stantial assistance. The Court of Aopeals j (unlike (he trial court and the Aupcllaie j Division) based us finding solely by j events tcgmmnc in 1947 (formation of | identical chemicai standards, marketing DES without testing on pregnant mice. | reiiancec upon the same studies lo sup- j port supplemental NDAs) and indicated | that the 1941 collaboration to secure ap- j proval for non-Drcenaney use. had no I bearing upon concerted action relating to | the 1947 supplemental NDA for pregnancy | use (Bichler v. Lilly 4 Co.. 33 N.Y.2d 171. 385. n.7). In Kaufman v. Lilly 4 Co_ 463 N.Y.2d 449,436. the court stated: *7. .we exoressed no view in Bichler ano. express none now. on which of the proposed theories - con- ( ccrtcd action, alternative liability, enter prise liability or marnet share liability - if any. should be adopted in this or similar DES cases l see. Bichler v. Lilly 4 Co.. I supra, at p. 3a0. n.S). The question is still I an open one in New York.": Discussion: | Dcfenndants correctly contend that the I applicability of the various "collective lia- i bility" ihcorics (including concerted ac- I lion i to DES fact patterns has not been i finally ruled upon by the Court of Appeals, i Nevertheless, the First Department clear- i ly recognized and expressly adopted the I concerted action theory for DES cases i (Bichler v. Lillv 4 Co.. 79 A.D.20 317; Kauf- i man v. Lillv 4 Co.. 99 A D.2d 693: see. Car- I rao v. Hcitler, 117 A.D.2d 30*. J13). ! Since plaintiffs, at least In this Depart- | me.ht. may proceed on a collective or con- l certed action liability theory, the inability I to Indcntify the actual manufacturer of | the DES taken by Mrs. Tigue and Mrs. j Margolies is not fatal. Plaintiffs' factual i allegations to support a finding of con- i ccricd action arc substantially the same as (hose pleaded in Bichler and clearlv slate a viable cause of action for concert by agreement or substantial assistance. As in Bichler. plaintiffs contend that a finding of concert by conscious irallelitm or subs'antial assistance mav i r bupFOrtcd oase-.l upon me formation 31 pJtr.tical chemical standards for DES in pregnancy, the marketing of the drug without prior testing on pregnant mice and the diug companies' reliance upon the same studies in suoplcmental NDAs. Plaintiffs also rclv on defendants' activi ties leading lo the FDA approval lor non pregnancy use based uoon the contention that their supplemental NDAs relied uoon the earlier filings. Whether the requcsis fer approval of DES for use in crrmar.cv relied upon the earlier filings presems an issue oi fact which car.not lie GO'.rrrmnrd on a motion for summary juJ'mcni simi larly. defendant's claim tn.il me actions by the drug companies m gaming FD \ approval of DES iwhcihcr tor non preg nancy or prcgnrncy use) and ihrir ac tions with regard to the manufacture, marketing and distribution of DES for use in pregnancy constitute concerted action sufficient to tmoose liability are questions for the trier ol fact. CTL028826 in .ufor.,cn. Di.iininu uuDareniiy see* to tm.posr industry wide liability bused upon uronciul .'allure to test and subsequent generic marketing and dispensing ot DES. Plaintiffs' basic theory is that "but for the development, manufacture, distribution and sale of DES by the defendants, plain- i tiffs would not have suffered the injuries | which they have suffered." Plaintiffs contend that under their "but I fur" analysis, in Addition to concert, they ( would te permitted to recover under van* ous non-identification theories: enterprise * liability i Hall v.E. 1. DuPont de Nemours : A Co.. 315 F. Supp. 353 |EDNY] 1972); alter- < native liability: market share liability . I Si n d c 11 v. Abbott Laboratoriea. 163 Cal. . Rptr. 122. C07 P. 2d 9211 cert, denied. 449 I U S. 912; risk contribution iColltns v. Ell I Lilly & Co.. 116. 3423 N.W.2d 37 cert, de- 1 nied. 469 U S. 826). i This Court declines to rule at this time i on the applicability to DES cases of each of the various theories of liability un ad- I ditlon to concerted action), which are not I speciflclally pleaded but are raised in re- sponse to defendants' motions. The only | question raised on the motions before this I court Is whether defendants may be held l liable absent product identification and I the answer is yes. 1 Claims of Exculpation: I Defendants Rexall and Upj'ohn contend I that under any collective liability theory. | a defendant who can establish that its i product could not have caused plaintiffs | injury may exculpate itself from liability. | -While exculpation may be theoretically j possible icertianly under marxcl share li- { abllltvi. even if the product of a particular j manufacturer couiu ue exciuucu * *.:.!. j dant may bear Icagl responsibility based | on Joint ictivity, encouragement or assis- I tance in bringing a harmful product into | the stream of commerce. Constitutional Attack: . II I Rcxall further contends that any theory ! of liability (including judicially estao- i I.shed ton docinr.esi nr.cer which liabill- : ty may be imposed without "causation-in- fact." presumaoiy product identification, : is unconstitutional as an excessive burden i on interstate commerce and violative the due process and equal protection clauses. Further, it argues, that imposing marke i share and enterprise liability frustrate expressed federal policies regarding the marketing of prescription drugs and thus violate the suoremacy clause. Defendant Rexall's due process chal lenges are unpersuasive. Under the vari ous theories discussed above, the require ment of traditional product identification is merely relaxed based on a finding that each defendant by its tortious behavior caused or contributed to plaintiffs Inju ries. Under these theories. Iiaollity may te premised upon the tortious behavior of each defendant, whose adherence to a cause of conduct resulting in an unsafe standard, perpetuates the standard. Fundamentally, imposition of liability absent product identification is based on policy grounds. As a matter of equity, the tortfeasor (who is In the best position to absorb the cost and to take the precau tions! rather than the innocent victim, should bear the cost of injury. Defendants can te held resoonsibile for wrongful con-duct of omissions that result In placing a _generidifuncible harmiul prouuct on the market Rexall's equal protection challenge amounts to no more than a fairness argu ment wmch does not rise to constitutional proportions Eoual protection is not svnonymous with .icsoiute equality tsee Dandndee v. Williams. j'j7 U S 471; People v. Parker. 41 N Y 2d 21; Parker r6lh Asso ciates v Citv of New York. 93 AX) 2d Jaa. aff'd. 19 N Y.2d ?5oi. ncxall s feocrai Drcemouon claim also lacks merit. "The criteria for determining : whether there has uocn federal preemp- tlon are ill the pervasiveness of the fed- cral regulation. i2l the dominance of the ' federal interest. i3> the federal and state objectives to be obtained, and H) the exis- lence of actual conflict between the state . and federal statutes, including whether : the state law is an obstacle to the pur- poses and objectives ot Congress" (Phar- maeeutie.il Soc of Stale of New York v. Lelkowitz. SS6 F 2d 953. 95S I2d Clr.. 19781). J Ajiplication of these criteria precludes a i f.ndmg of federal preemption. The prima- i ry objectives of the federal law Is control- i lire product satety and efficacy <:d. p. ; iJsi. Ti.< c-jjcctivc of the proposed theo- ' ries ot recovery is basic fairness, to pro- i vide a remedy to the innocent victims of I wrongdoers. ) Rexall contends that the imposition of I iiauimy m'iwiuui (JtuuuCt luciiwnumuti t burdens interstate commerce, by incre&s- i ing the cost of products, rcauctng avail- i ability and limiting sales by discouraging t development of r.ew drugs, and by gener- v ally increasing the cost of doing business I thereby precluding entry into the phar- t maceutical business. In determining whether there Is an un- t due burden on interstate commerce, the i test is whether ''. . . the burden on linter- statcl commerce is clearly excessive in i relation to the putative local benefits "(id : at 937. quoting Pike v. Bruce Church. Inc.. . 397 U S. 137. H2t. Here, the local benefit is l providing a forum to innocent victims of l alleged wrongdoing by relaxing the tradt- tional product identification requirement i in tort law. Clearly, a legitimate state in- | terest is furtherra. While adootion of a j non-identification theory of liability could t conceivably burden interstate commerce | to the extent that the cost of such in- | irc-iscd liability would be passed on to | consumers through higher prices. ". . . j [n]ot every exercise of local power Is In- | valid merely because it affects in some i way the flow of commerce between the i Slates" t(Ircai Atlantic 4 Pacific Tea Co. j V. Cottrell. 424 US. 2C6. 371). Rexall has | failed to oemcr.sirate that the burden i here would be clearly excessive compared I to the bcnctit. Therelore. the commerce j clause cnallc-r.ge also must fail. ! Accordingly, defendants' motions for I summary judgment oismissing the com- | plainf are domed, and the matter is set I down for trial on Septemoer 30. 1987. Ill The twelve companies were Xthotl: Ar- i mour l.itwraiories: Ajerst. McKenna A Harri- | son. Ltd : Geo A Grron A co.. Inc.. Charles E | Frost A Co. Eli Lilly A Co- Merck A Co., lncc I Sharpe A Cohmc. Inc.. E. P. Squibb A Sons: I I'pjohn w inihrco Chr-nical Cjnipanv. and John Wyeth A Breakers. Inc. lAlfldavu of Don i Charles Hines. M D.. al p. SI j HYMOWITZ v. EU LILLY t CO.-In ' this pharmaccuiir.il product liability ac- tion. plaintiff .Mindy llymowitz alleges that she developed cancer as a result of prenatal exposure to diclhyItilbcstrol I'DES' l. a synthetic csirogen taken by her mother in l'J54 during pregnancy to prevent Feasible miscarriage. Plaintiff was born on Dec 11. 1934. The cancerous condition for which plaintiff seeks damages allegedly appeared in 1979 Under the st ilute of limitations then applicable iCl'I.H 208. 2)41 plaintiff was barred from commencing suit in Decem ber. 1973 ithree ve.irs alter reaching the age of majority). Plaintiff brings this ac tion. however, under the provisions of the 1366 revival statute iL r.'s6 ch ux2 ;4). Plainliff moves pursuant to CPIJt 3212 to strike affirmative defenses raised bv some dricnoar.is ehallcngmg the constitu tionality oi the revival si.iluie and alleg ing that the action is time barred under the statute of limitations otnerwise appltcaule. Abbott L-iOoratories i"Ab3c:;'i and The Upjenn Company i"Up]ohn t seek sum mary juogment and dismissal cl the com plaint as oarrea pv me statute of limita tions absent the availability of the allegedly unconstitutional revival statute.^ Defendant E R. Squiob 4 Sens' ("Squibb") opposes the rcnef sought by plaintiff and contends that before the is sue of the constitutionality o: the revival statute is determined further ciscovery is required on the issue of whether suen extraoroiriary circumstances exist in this case to justify invocation of the statute which Suuibb also contends is unconstitu tional. (Squibb further urges mat discov ery is r.ccacd to determine w r.etner plain tiff can identify the manufacturer of the DES actually taken by her mother.) The revival portion of the 1986 tort re- I form legislation provides that actions t seeking damaces I or personal injury, | property damage or death caused vv the > latent effects of exposure to five suo- . stances iDES. asbestos, lur.estencarcide. < chlordar.e and poiyvinyl-cmcridei that . were time barred or dismissed, os of the . effective date of the statute, may be mstl- luted "... within one yeAr from the effec tive date of this act." The statute was i passed on July 1. 1956 ana was signed by | the Governor on July 30. 2956. 1 In addition to the revival provision for i the five specified sucstances i:4Mhenew i tort reform legislation accpted a general I discovery based statute of limitations for i injuries caused by latent etfects of exoo- t sure to any substnace tCPLR 214-o2j). I Under subsection 2. a victim may assert a i cause of action within Lh.-ee years form i the date of the injury was or should have . been discovered. and the discovery based statute of limita tions 152) were intcnced by the Legisla ture to remedy the perceived Injustice caused by the application of CPLR $216. 208 (the exposure baseo statute of limita tions). and to provide legal recourse for injuries caused by latent effects of toxic substances. Both provisions were enacted to remedey the failure of the cid statute to recognize tnat such injuries may not ap pear until jears after exposure, long after the expiration of the period within wmcb actions may be instituted. Legislative history indicates that the five named substances were extinguished from other loxtc sucstances u2) as a re sult of coir.sromise t.-ctween :.-.e Assembly (which had voted to permit revival for all toxic substanresi and the Senate which wanted to limn revival. The Legislature u'timatciv limited re-uvsl based upon the exister.ee rf an ufcntuiable jrreup a:fected by the resulting ability to creoict the tuture costs of such revival The Legislature was apparently concerneo that ur.aer a broader revival statute, the larce number of unknown victims would create unpre dictable risks and costs. Defcndnts challenge the revival statute on equal protection and due process grounds, arguing that the statute is the result of an arbitrary and irrational politi cal arrangement arrtvro at without ratio nal guidelines of scientific ccrtaintv or public necessity. Defenor.ts further argue that the legislative concern for limiting the number of pcicnnal claimants and costs is not related to the cstensioie objec tive of the legislation, t.e. to ailow victims of latent injuries to maintain actions. De fendants contend that the revival revi sion must be stricken on equal protection grounds, as an unoerir.c.usive ranaora pcnaitv without scientific Cojis. cn live arbitrarily chosen substances and melr manuiocturrrs It is contenoed that tne prior exposure statute of limitations would be more than adequate for victims of the five specified auosiances. CTL028827