DES Jury Verdicts Affirmed on Appeal

by Cerisse Anderson - New York Law Journal

January 19, 1995

 

In the first appellate ruling on jury awards in several DES cases joined for trial, a state intermediate review panel Tuesday affirmed awards ranging from $125,000 to $12 million for 11 women who developed cancer, infertility or reproductive tract injuries as a result of exposure to an artificial hormone their mothers took while pregnant to prevent miscarriage.

Ruling in In re: New York County DES Litigation: Cardinale v. Abbot Laboratories, the Appellate Division, First Department unanimously affirmed the verdicts and rulings in the joint trial before Justice Ira Gammerman of 11 cases seeking damages for exposure to diethylstilbestrol (DES).

 

TRIAL JUDGE’S BIFURCATION OF ISSUES FOUND JUSTIFIED

After a three-week trial and four days of deliberations, the jurors in Supreme Court in Manhattan returned verdicts on Jan. 7, 1994, finding that the 11 plaintiffs had each proven damage resulting from their exposure to the drug before being born.

The trial had been bifurcated, and a separate trial on the apportionment of liability among three defendant drug manufacturers is pending, having been postponed while the defendants appealed the damages verdict.  Other defendants had settled with the plaintiffs before trial.

 

In its unsigned memorandum decision, the four-judge panel ruled that the reversal of the usual order of trial – damages first and then an apportionment of liability – was “not an improvident exercise of discretion.”

The court also affirmed Justice Gammerman’s denial of the defendants’ applications for separate trials.  Sybil Shainwald, who represented the plaintiffs at trial and on appeal, said the cases that went to trial included claims for clear-cell cancer (which resulted in the three highest verdicts) as well as those for infertility or adverse pregnancy outcomes.

Whereas a few DES cancer cases had been previously tried in New York, Ms. Shainwald said this proceeding included the first non-cancer cases to reach a jury.

 

Hundreds of DES cases were filed in New York in 1986 as the result of the Legislator’s change of New York’s discovery rule in tort cases from a much criticized date-of-injury rule to discovery-of-the-injury rule, to discovery-to-the-injury rule, codified as Civil Practice Law and rules Section 214-c.  A one-year window was opened to revive time-barred claims resulting from exposure to live toxic substance including DES.  Some 400 to 500 cases were filed in state court in Manhattan and assigned to Justice Gammerman.

 

REASONABLE AWARDS

Most of the cases were settled, some with the assistance of Kenneth R. Feinberg and his successor.  Mr. Feinberg was appointed in 1992 as a special master by Justice Gammerman and Judge Jack Weinstein, who was assigned the DES cases filed in federal court in Brooklyn.

 

An estimated 250 cases, handled primarily by three different plaintiffs’ counsel – Ms. Shainwald, Ronald R. Benjamin of Binghamton, N.Y., and Weitz and Luxenberg – are still pending before Justice Gammerman, his chambers said Tuesday.

In its review of the jury’s assessments of damages, the First Department said there had not been “a material deviation from what would be reasonable compensation . . . for the unique, far-ranging and severe physical and psychological injuries suffered by these plaintiffs.”

 

The judges affirmed without comment Justice Gammerman’s modification of the jury’s verdicts to remove compensation awarded in five of the cases for adoption expenses incurred in amounts ranging from $2,500 to $58,000 by women who had become infertile as a result of exposure to the drug.  DES had been manufactured by about 300 companies between the early 1940s and 1971 when the U.S. Food and Drug Administration banned its use during pregnancy because of its link to cancer in children exposed to the drug while in utero.

 

Justice Joseph P. Sullivan, Ernst H. Rosenberger, Eugene L. Nardelli and Milton L. Williams formed the appellate panel.

The defendants were represented by Eric D. Statman of Anderson Kill Olick & Oshinsky for Emons Industries; Charles McCaghey of Ryan, Ryan, Johnson Clear & Deluca of Stamford, Conn., for Boyle & Co.; and Patricia D’Alvia of Martin, Clearwater & Bell for Carnrick Laboratories.

 

On the appeal the plaintiffs were represented by a Ms. Shainwald and Elisa Barnes of the Law Offices of Sybil Shainwald.

 

DES AWARDS

DES plaintiffs and jury awards affirmed by the Appellate Division, First Department