finding no preconception duty, and noting that it is the courts duty to "confine liability within manageable limits."Summary of this case from Peters v. Texas Instruments Inc.
Argued January 9, 1991
Decided February 19, 1991
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Irad S. Ingraham, J.
John L. McGoldrick, Russel H. Beatie, Jr., Charna L. Gerstenhaber and Charles Jefferson Biederman for Eli Lilly Company, appellant.
Alexander C. Cordes, Paul K. Stecker, Tamar P. Halpern, David J. Fleming, Marc S. Klein, Karl E. Seib, Jr., Robert D. Wilson, Jr., A. Edward Grashof, Sheila Moeller Fessler, David M. Covey and Jack Gross for E.R. Squibb Sons, Inc., and others, appellants. Theodore V.H. Mayer, W. Burlette Carter, John J. Dee and Jonathan B. Fellows for Merck Co., Inc., appellant.
Leonard L. Finz, Steven DiJoseph and Stuart L. Finz for respondent. Arthur H. Bryana, Priscilla Budeiri, Isabel Marcus and Lucinda M. Finley for Trial Lawyers for Public Justice, amicus curiae.
The question in this case is whether the liability of manufacturers of the drug diethylstilbestrol (DES) should extend to a so-called "third generation" plaintiff, the granddaughter of a woman who ingested the drug. According to the allegations of the complaint, the infant plaintiff's injuries were caused by her premature birth, which in turn resulted from damage to her mother's reproductive system caused by the mother's in utero exposure to DES. We hold, in accord with our decision in Albala v City of New York ( 54 N.Y.2d 269), that in these circumstances no cause of action accrues in favor of the infant plaintiff against the drug manufacturers.
The plaintiffs in this case are Karen Enright, born August 9, 1981, and her parents, Patricia and Earl Enright. According to their complaint, the events underlying this action began more than 30 years ago, when Karen Enright's maternal grandmother ingested DES during a pregnancy which resulted in the birth of plaintiff Patricia Enright on January 29, 1960. Plaintiffs allege that because of her in utero exposure to DES, Patricia Enright developed a variety of abnormalities and deformities in her reproductive system. As a result, several of her pregnancies terminated in spontaneous abortions and another resulted in the premature birth of Karen Enright. Karen suffers from cerebral palsy and other disabilities that plaintiffs attribute to her premature birth and, ultimately, to her grandmother's ingestion of DES.
This action was commenced by Patricia and Earl Enright individually and on behalf of their daughter against several manufacturers of DES. After issue was joined, the defendants sought summary judgment dismissing the complaint. Defendants contended that the actions were barred by the Statute of Limitations and by plaintiffs' inability to identify the manufacturer of the drug ingested by Karen's grandmother. In addition, defendants argued that Karen's claims of a preconception tort presented no cognizable cause of action.
Supreme Court, relying principally on Albala v City of New York ( 54 N.Y.2d 269, supra), agreed with defendants that those claims stemming from Karen's injuries were not legally cognizable and dismissed all four causes of action brought on her behalf and those asserted by her parents for their emotional injuries resulting from Karen's birth. Defendants' motions were otherwise denied, however, leaving intact Patricia Enright's claims relating to her own physical injuries and Earl Enright's derivative claim based upon his wife's injuries.
On cross appeals, the Appellate Division modified by reinstating the third cause of action in the complaint — that cause of action brought on behalf of Karen Enright based upon strict products liability. The Appellate Division agreed with Supreme Court that Albala foreclosed preconception tort liability based upon negligence, but held that public policy in favor of providing a remedy for DES victims justified recognizing a strict products liability cause of action.
Defendants sought leave to appeal to this Court, which the Appellate Division granted, certifying to us the question: "Did this court err, as a matter of law, by reversing so much of the Supreme Court order as granted defendants' motions dismissing the third cause of action in the complaint and, as so modified, affirming the order?" That question must be answered in the affirmative.
We note that no issues are raised on this appeal regarding the still pending claims of Patricia and Earl Enright based on the injuries allegedly sustained by Patricia Enright due to her own in utero exposure to DES. Most of defendants' attacks on those claims were defused by our recent decision in Hymowitz v Lilly Co. ( 73 N.Y.2d 487, cert denied ___ US ___, 110 S Ct 350). Nor do plaintiffs challenge the Appellate Division order to the extent that it affirmed the dismissal of those causes of action brought on behalf of Karen Enright sounding in negligence, breach of warranty and fraud.
Thus, the only issue before us is the propriety of the Appellate Division's reinstatement of the strict products liability cause of action on behalf of Karen Enright, this so-called "third generation" plaintiff.
The tragic DES tale is well documented in this Court's decisions and need not be recounted here (see, e.g., Hymowitz v Lilly Co., supra; Bichler v Lilly Co., 55 N.Y.2d 571). It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent miscarriages. In 1971, the Food and Drug Administration banned the drug's use for the treatment of problems of pregnancy after studies established a link between in utero exposure to DES and the occurrence in teen-age women of a rare form of vaginal and cervical cancer. Plaintiffs allege that in utero exposure to DES has since been linked to other genital tract aberrations in DES daughters, including malformations or immaturity of the uterus, cervical abnormalities, misshapen Fallopian tubes and abnormal cell and tissue growth, all of which has caused in this population a marked increase in the incidence of infertility, miscarriages, premature births and ectopic pregnancies.
The Legislature and this Court have both expressed concern for the victims of this tragedy by removing legal barriers to their tort recovery — barriers which may have had their place in other contexts, but which in DES litigation worked a peculiar injustice because of the ways in which DES was developed, marketed and sold and because of the insidious nature of its harm.
For example, prior to 1986, the long-standing rule in this State was that a cause of action for personal injuries caused by a toxic substance accrued and the limitations period began to run upon exposure to the substance (see, Fleishman v Lilly Co., 62 N.Y.2d 888, cert denied 469 U.S. 1192). The Legislature, recognizing that under this rule claims for injuries caused by exposure to DES and other toxic substances were often time barred before the harmful effects of the exposure could be discovered, changed the law to provide that the limitations period in exposure cases begins to run upon discovery of the injury (see, CPLR 214-c; L 1986, ch 682, § 2). At the same time, the Legislature revived for one year previously time-barred causes of action based on exposure to DES and four other toxic substances (L 1986, ch 682, § 4).
More recently, this Court responded to the fact that — for a variety of reasons unique to the DES litigation context — a DES plaintiff generally finds it impossible to identify the manufacturer of the drug that caused her injuries. We held that liability could be imposed upon DES manufacturers in accordance with their share of the national DES market, notwithstanding the plaintiff's inability to identify the manufacturer particularly at fault for her injuries (see, Hymowitz v Lilly Co., supra).
III.In the present case, we are asked to do something significantly different. We are asked, not to remove some barrier to recovery that presents unique problems in DES cases, but to recognize a cause of action not available in other contexts simply (or at least largely) because this is a DES case.
In Albala v City of New York ( 54 N.Y.2d 269, 271, supra), we were presented with the question "whether a cause of action lies in favor of a child for injuries suffered as a result of a preconception tort committed against the mother". There, the mother suffered a perforated uterus during the course of an abortion. Four years later, she gave birth to a brain-damaged child, whose injuries were allegedly attributable to the defendants' negligence in perforating the mother's uterus. We declined, as a matter of policy, to recognize a cause of action on behalf of the child, believing that to do so would "require the extension of traditional tort concepts beyond manageable bounds" (id., at 271-272). Among other things, we were concerned with "the staggering implications of any proposition which would honor claims assuming the breach of an identifiable duty for less than a perfect birth" and the difficulty, if such a cause of action were recognized, of confining liability by other than artificial and arbitrary boundaries (id., at 273, citing Park v Chessin, 46 N.Y.2d 401; Howard v Lecher, 42 N.Y.2d 109).
The case now before us differs from Albala only in that the mother's injuries in this case were caused by exposure to DES instead of by medical malpractice. A different rule is justified, therefore, only if that distinction alters the policy balance we struck in Albala.
The primary thrust of plaintiffs' argument and the Appellate Division's decision is that DES itself alters that balance. From the Legislature's actions in modifying the applicable Statute of Limitations and reviving time-barred DES cases and from our adoption of a market-share liability theory in Hymowitz, plaintiffs perceive a public policy favoring a remedy for DES-caused injuries sufficient to overcome the countervailing policy considerations we identified in Albala. The implication, of course, is that the public interest in providing a remedy for those injured by DES is stronger than the public interest in providing a remedy for those injured by other means — medical malpractice, for example. We do not believe that such a preference has been established.
To be sure, recent developments demonstrate legislative and judicial solicitude for the victims of DES, but they do not establish DES plaintiffs as a favored class for whose benefit all traditional limitations on tort liability must give way. To the extent that special rules have been fashioned, they are a response to unique procedural barriers and problems of proof peculiar to DES litigation.
For example, the Legislature's enactment of a "discovery" Statute of Limitations was directed at opening up traditional avenues of recovery by removing a procedural barrier that was unreasonable given the nature of DES injuries. Nothing in the legislation suggests that the Legislature intended to expand the basis for liability. Indeed, the language of the statute suggests the opposite conclusion. The discovery rule applies in cases of injury caused by "the latent effects of exposure to any substance * * * upon or within the body" (CPLR 214-c). Exposure is defined as "direct or indirect exposure by absorption, contact, ingestion, inhalation or injection" (CPLR 214-c). Implicit in this language is the notion that some contact with the substance is essential to a cause of action, an element lacking here.
It is true enough, as the dissent points out, that CPLR 214-c is a remedial statute and such statutes should be "liberally construed to effectuate their aims" (dissenting opn, at 392). But even a remedial statute must be given a meaning consistent with the words chosen by the Legislature — those words define the scope of the remedy that the Legislature deemed appropriate. In our view, the role of the courts is to give effect not only to the remedy, but also to the words that delimit the remedy. Under the dissenter's formulation, apparently, the courts are free to extend the remedy as far as they see fit; the statute merely provides a starting point and a direction.
Similarly, our adoption of market-share liability was not prompted by some uncontrolled momentum favoring recovery by all DES plaintiffs; rather, it was justified because identification of the DES manufacturer was an insurmountable barrier in the "singular case [where] manufacturers act[ed] in a parallel manner to produce an identical, generically marketed product, which causes injury many years later" (Hymowitz v Lilly Co., supra, at 508). These unique features of DES cases not only made identification difficult, but also made it less relevant to culpability than in other products liability actions, since the tortious conduct of DES manufacturers pervaded the industry. Thus, the market-share theory was adopted "to apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large." (Id., at 512.) The Hymowitz decision did not create a new cause of action; it simply adjusted the rules governing a traditional cause of action to circumvent what in this limited context were unreasonable obstacles.
In the present case, however, neither plaintiffs, the Appellate Division, nor the dissent has identified any unique feature of DES litigation that justifies the novel proposition they advance — recognition of a multigenerational cause of action that we have refused to recognize in any other context. The fact that this is a DES case does not by itself justify a departure from the Albala rule.
Closer to the mark, though still falling short, is plaintiffs' second argument. They note that Albala was a negligence case and that we left open the question whether a different result might obtain under a strict products liability theory, because of the potentially different policy considerations in such a case (see, Albala v City of New York, supra, at 274, n). Having now examined the question in the context of this particular strict products liability claim, we find no basis for reaching a different conclusion than we did in Albala.
On one hand, weighing somewhat more heavily in favor of recovery in a strict products liability action than in ordinary negligence actions is the policy of diverting the burden of product-caused injuries from the innocent victim to the manufacturer. The product manufacturer is generally in a better position than an individual tort-feasor to distribute this burden by passing the costs along to customers in the cost of the product. This is one justification offered for holding manufacturers of defective products strictly liable for injury caused by their products without regard to privity, foreseeability or due care (see, Codling v Paglia, 32 N.Y.2d 330, 341; Prosser and Keeton, Torts, at 692-693 [5th ed]).
Of course, imposing liability on the manufacturer in such circumstances also serves to encourage the development of safer products (Codling v Paglia, supra, at 341; Sukljian v Ross Son Co., 69 N.Y.2d 89, 95), but this rationale is not a distinctive feature of strict products liability theory, since imposition of liability on a negligent tort-feasor is also based in part on a policy of deterrence (see, McDougald v Garber, 73 N.Y.2d 246, 254). This factor, therefore, does not appear to add anything new to the mix of policy considerations that was not also present in Albala. We recognize, however, that a widely distributed product, if defective, presents a risk to a broad range of potential victims. For that reason, although the need for deterrence is not unique to the products liability context, it may have added weight there.
Despite these considerations, the countervailing ones remain strong enough to preclude us from recognizing a cause of action here. To begin, the concerns we identified in Albala are present in equal measure here. The nature of the plaintiffs' injuries in both cases — birth defects — and their cause — harm to the mothers' reproductive systems before the children were conceived — are indistinguishable for these purposes. They raise the same vexing questions with the same "staggering implications" (Albala v City of New York, supra, at 273). As in Albala, the cause of action plaintiffs ask us to recognize here could not be confined without the drawing of artificial and arbitrary boundaries. For all we know, the rippling effects of DES exposure may extend for generations. It is our duty to confine liability within manageable limits (see, Tobin v Grossman, 24 N.Y.2d 609, 619; Prosser, Palsgraf Revisited, 52 Mich L Rev 1, 27). Limiting liability to those who ingested the drug or were exposed to it in utero serves this purpose.
This — not fear of defensive medicine — was what we identified in Albala as "the central concern" that led to the policy choice we made in that case (see, 54 N.Y.2d, at 273). The dissent fails to explain why this same concern is not equally implicated here, and thus fails to provide any basis for distinguishing Albala beyond the observation that DES cases are "special" (dissenting opn, at 391, n 1). While we agree that DES cases have unique features, the question is not simply whether DES cases are special, but whether they are different in some way that justifies a departure from the established rule that applies to other cases.
At the same time, limiting liability in this fashion does not unduly impair the deterrent purposes of tort liability. The manufacturers remain amenable to suit by all those injured by exposure to their product, a class whose size is commensurate with the risk created. In addition, we note that the tort system is not the only means of encouraging prescription drug safety; the Federal Food and Drug Administration has primary responsibility for that task (see, Note, A Question of Competence: The Judicial Role in the Regulation of Pharmaceuticals, 103 Harv L Rev 773). We do not suggest, as some have (see, id.), that for this reason the judicial system should abandon its traditional role. But in light of the FDA's responsibility in this area, the need for the tort system to promote prescription drug safety is at least diminished.
That the product involved here is a prescription drug raises other considerations as well. First, as in most prescription drug cases (see, Vinson Slaughter, Products Liability: Pharmaceutical Drug Cases, at 123-140), liability here is predicated on a failure to warn of dangers of which the manufacturers knew or with adequate testing should have known. Such a claim, though it may be couched in terms of strict liability, is indistinguishable from a negligence claim (see, Wolfgruber v Upjohn Co., 72 A.D.2d 59, affd on opn below 52 N.Y.2d 768). Concepts of reasonable care and foreseeability are not divorced from this theory of liability, as they may be under other strict products liability predicates. Thus, the effort to distinguish this case from Albala is strained.
More important, however, is recognition that public policy favors the availability of prescription drugs even though most carry some risks (see, Brown v Superior Ct., 44 Cal.3d 1049, 751 P.2d 470, 478-479; Restatement [Second] of Torts § 402A, comment k; Vinson Slaughter, op. cit., at 123-126). That is not to say that drug manufacturers should enjoy immunity from liability stemming from their failure to conduct adequate research and testing prior to the marketing of their products. They do not enjoy such immunity, as evidenced by our recognition of liability in favor of those who have been injured by ingestion or in utero exposure to DES. But we are aware of the dangers of overdeterrence — the possibility that research will be discouraged or beneficial drugs withheld from the market. These dangers are magnified in this context, where we are asked to recognize a legal duty toward generations not yet conceived.
The dissent would have us believe that this case involves nothing but application of straightforward strict products liability doctrine. But this case is fundamentally different in the same way that Albala was fundamentally different from other negligence cases. In neither this case nor Albala was the infant plaintiff exposed to the defendants' dangerous product or negligent conduct; rather, both were injured as a consequence of injuries to the reproductive systems of their mothers.
We agree with the dissenter that "`like cases should be treated alike'." (Dissenting opn, at 397.) This is not only a fundamental principle of justice, it is also the underpinning of the doctrine of stare decisis. It is, indeed, precisely why we are bound to apply the rule of Albala here, in the absence of some difference between the two cases upon which a principled distinction can be drawn.
The dissent, however, discounts the precedential value of Albala because it was based on "policy grounds" and therefore — in the dissenter's view — "poses no legal bar to recovery" (dissenting opn, at 394). That the Albala rule is based on policy grounds, however, should not diminish its status as a rule of law. All legal rules, including those the dissent relies upon, are policy-based.
By adhering to Albala, therefore, our decision today follows established law. The dissenter, on the other hand, would expand liability beyond traditional bounds in the face of precedent from this court to the contrary, and accuses the majority of usurping the legislative function by failing to do so (dissenting opn, at 397). It strikes us as a unique view of the judicial role that would allow the court to expand liability at will, but require legislative action before adhering to established limits.
In sum, the distinctions between this case and Albala provide no basis for a departure from the rule that an injury to a mother which results in injuries to a later-conceived child does not establish a cause of action in favor of the child against the original tort-feasor. For this reason, we decline to recognize a cause of action on behalf of plaintiff Karen Enright.
Accordingly, the order of the Appellate Division should be modified, with costs to defendants, by granting defendants' motions for summary judgment dismissing the third cause of action and, as so modified, affirmed. The certified question should be answered in the affirmative.
Judges SIMONS, KAYE, ALEXANDER and TITONE concur with Chief Judge WACHTLER; Judge HANCOCK, JR., dissents in part and votes to affirm in a separate opinion; Judge BELLACOSA taking no part.
Order modified, etc.
Karen Enright is one of a class of thousands of persons who have allegedly suffered devastating abnormalities and injuries resulting from defendants' marketing of DES. Is there any basis in the law or social policy or any principled reason in justice and fairness for holding that she — unlike other members of the class — should not be permitted to prove her case? I am convinced there is no such basis or reason. Today, however, in what appears to mark an abrupt change in the course of New York strict products liability jurisprudence, a cut-back on recent precedent and a rejection of policy established by the Legislature and accepted by our Court, the majority denies her the right to sue.
Under settled strict products doctrine (see, e.g., Codling v Paglia, 32 N.Y.2d 330, 338-342; Prosser and Keeton, Torts § 98 [5th ed]) and Hymowitz v Lilly Co. ( 73 N.Y.2d 487, cert denied ___ US ___, 110 S Ct 350), there can now be no question that persons in the position of Karen Enright's mother would have a right to recover for injuries to their reproductive systems. Yet, the majority holds that Karen Enright has no right to recover, solely because she was not conceived at the time that her mother was exposed to DES in utero. But the majority gives no satisfactory reason why this fact justifies the decision to exclude her from the class of those permitted to recover for injuries caused by DES. For reasons which follow I cannot accept this result and vote to affirm the order of the Appellate Division holding that Karen Enright states a valid cause of action in strict products liability.
IPreliminarily, I note that the question of whether there can be a recovery in a products liability case for a preconception injury is before us in a dismissal motion under CPLR 3211 (a) (7). Thus, the case presents no legal hurdles with respect to foreseeability or causation. Clearly it cannot be said as a matter of law — assuming it was foreseeable that Karen's mother's uterus might be deformed from the DES — that it was not also foreseeable that Karen Enright would be born prematurely because of this deformity and afflicted with cerebral palsy and the other appalling consequences from which she suffers. Nor is the possibility of additional difficulties in establishing causation at trial a reason for dismissal (see, Woods v Lancet, 303 N.Y. 349, 356; Prosser and Keeton, op. cit., § 55, at 368; Comment, Preconception Torts: Foreseeing the Unconceived, 48 U Colo L Rev 621, 625-627). The complaint alleges that plaintiff's injuries were foreseeable and that they were caused by her mother's exposure to DES. In deciding whether plaintiff has stated a cause of action on this motion we must assume these allegations to be true (see, Becker v Schwartz, 46 N.Y.2d 401, 408). In any event the majority does not ground its decision on these or other propositions of tort law, but rather on what it perceives to be policy reasons which dictate that Karen Enright's claim should be dismissed.
The matrix of social policy and legal precedent on which Karen Enright founds her claim has been constructed by the Legislature and our Court. In 1986, the Legislature passed the Governor's Program Toxic Torts bill and adopted a "discovery" Statute of Limitations (CPLR 214-c) for the express purpose of remedying the injustice of denying any right to relief to persons suffering from the latent effects of injuries from DES and other substances (L 1986, ch 682). In signing the Toxic Torts bill into law, the Governor noted that "this measure * * * remedies a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having an opportunity to present their case in court[,]" that "[t]his measure remedies the injustices suffered by all of the currently known categories of victims of exposure * * * includ[ing] persons who have suffered serious injuries as a result of exposure to diethylstilbestrol (DES)" and that "this legislation culminates a multi-year effort by these victims to achieve this long overdue reform in our law. It is a victory for justice, and an example of democracy in action" (Governor's Mem of approval, 1986 McKinney's Session Laws of NY, at 3182-3184).
In Hymowitz v Lilly Co. ( 73 N.Y.2d 487, supra), this Court recognized the unique characteristics of DES and gave practical effect to the intent of the Legislature's important and much-heralded reform. In a precedent which created a means for a victim of DES to recover notwithstanding her inability to identify the manufacturer, the Hymowitz Court stressed that the "insidious nature" of DES injuries, the expectations created by the Legislature and the "dictates of justice and fairness" justified the remedy. The Court wrote:
The Court in Hymowitz in devising its national market-share formulation emphasized that its action was prompted by the unusual nature of the problems caused by DES, in these words:
"We stress, however, that the DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, generically marketed product, which causes injury many years later, and which has evoked a legislative response reviving previously barred actions. Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action." ( 73 N.Y.2d 487, 508 [emphasis added].)
The majority suggests (majority opn, at 385) that DES strict products cases are not special and should be treated no differently from other tort cases such as malpractice. Such suggestion is clearly at odds with the above-quoted passage from Hymowitz and with the record of special concern for DES victims shown by the Legislature (see, e.g., Governor's Mem of approval, July 30, 1986, 1986 McKinney's Session Laws of NY, at 3182) and by our Court in Hymowitz.
"Indeed, it would be inconsistent with the reasonable expectations of a modern society to say to these plaintiffs that because of the insidious nature of an injury that long remains dormant, and because so many manufacturers, each behind a curtain, contributed to the devastation, the cost of injury should be borne by the innocent and not the wrongdoers. This is particularly so where the Legislature consciously created these expectations by reviving hundreds of DES cases. Consequently, the ever-evolving dictates of justice and fairness, which are the heart of our common-law system, require formation of a remedy for injuries caused by DES (see, Woods v Lancet, 303 N.Y. 349, 355; see, also, Kaye, The Human Dimension in Appellate Judging: A Brief Reflection on a Timeless Concern, 73 Cornell L Rev 1004)." (Id., at 507 [emphasis added].)
The majority, nonetheless, gives CPLR 214-c a narrow reading as support for its refusal to recognize Karen Enright's claim, suggesting that "[i]mplicit in [its] language is the notion that some contact with the substance is essential" (majority opn, at 385). Nothing in the statute's legislative history nor in its wording leads to this construction. Indeed, "exposure" under the statute "means direct or indirect exposure by absorption, contact, ingestion, inhalation or injection" (CPLR 214-c [emphasis added]). As the Commentary notes, the new discovery rule applies "when the plaintiff has been the victim of exposure to a toxic substance, the critical term `exposure' is broadly defined" (McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C214-c:1, at 631 [emphasis added]). Given the broad language in the statute and the legislative history, the majority's unduly constricted reading of the statute is inconsistent with the fundamental notion that remedial statutes are to be liberally construed to effectuate their aims and to promote justice (see, McKinney's Cons Laws of NY, Book 1, Statutes § 321).
In Codling v Paglia ( 32 N.Y.2d 330, supra), the seminal case in which we adopted strict products liability in this State, we summarized the reasons in social policy, in the economic realities of mass production and distribution and in the considerations of "justice and common sense" for the rule that manufacturers which place defective products in the stream of commerce should bear the financial burdens of their harmful consequences — rather than the innocent persons who suffer the harm (id., at 340-342; Restatement [Second] of Torts § 402A, comment c). These general policies underlying strict products liability as well as the special policies pertaining to DES recognized by the Legislature in adopting CPLR 214-c and implemented by our Court in Hymowitz apply no less to Karen Enright's claim than to the claims of other DES victims. What, then, are the policy reasons seen by the majority as compelling today's decision? There appear to be three. None is availing.
First, the majority cites defendants' arguments concerning the "staggering implications" and "rippling effects" (majority opn, at 386, 387) that a decision upholding Karen Enright's claim might have. But this sort of "floodgates of litigation" alarum seems singularly unpersuasive in view of our Court's repeated admonitions that it is not "a ground for denying a cause of action that there will be a proliferation of claims" and "if a cognizable wrong has been committed that there must be a remedy, whatever the burden of the courts." (Tobin v Grossman, 24 N.Y.2d 609, 615 [emphasis added]; see, Bovsun v Sanperi, 61 N.Y.2d 219, 231; Battalla v State of New York, 10 N.Y.2d 237, 240-242.) Beyond that, however, when defendants' arguments are applied here to urge that although claims of DES daughters should be allowed the claims of granddaughters should not be, their forebodings strike a peculiarly ironic note: i.e., the very fact of the "insidious nature" of DES which may make the defendants liable for injuries to a future generation is advanced as the reason why they should not be liable for injuries to that generation. Should we be saying to these defendants and other companies which manufacture drugs "you must be careful to produce reasonably `safe' drugs and to warn of the risks of taking such drugs but in deciding whether a drug is `safe' you may completely ignore the havoc a particular drug may wreck on a future generation?" I think not.
Second, the majority suggests that permitting a cause of action for Karen Enright could result in "overdeterrence — the possibility that research will be discouraged or beneficial drugs withheld from the market." (Majority opn, at 388.) But in deciding whether a particular claim for injuries from DES should be sustained, the deterrence factor is inconsequential. The wrongful conduct of the drug companies in producing and marketing DES and similarly harmful products for use by pregnant women stopped more than a generation ago when the enormity of the damage from DES became known. The sole question now involves the remedy for this past wrong, not deterrence: i.e., whether the remedy for DES victims made possible by the Legislature in CPLR 214-c and given effect by our Court in Hymowitz should be withheld from a granddaughter who suffers injuries from this wrong. But even if deterrence is assumed to be a relevant issue, should we be any less concerned with deterring the development of unsafe drugs which may cause latent damage to the third generation than to the second? Again, I think not.
Finally, in what has the ring of an economic cost-benefit analysis, the majority suggests that its generational line-drawing is proper because the manufacturers' exposure to liability is "commensurate with the risk created." (Majority opn, at 387.) The argument is seen at once to be at odds with the rule that on this motion to dismiss Karen Enright's complaint (CPLR 3211 [a] ) the court must accept as true her allegations that she is a member of the class of persons to whom the risk of injury was foreseeable (see, Becker v Schwartz, supra, at 408). But, in any event, the statement that liability should stop at Karen's mother's generation because it "is commensurate with the risk" is not a statement of an argument or of a legal or policy reason for a particular result. Rather, it is simply a statement of the Court's own policy determination as to where the risk — and, hence, the liability — stops. If, as the majority apparently believes, there are economic and social considerations which require that there be some arbitrary cutoff point in cases of this kind, such a statute of repose could easily be engrafted on the Toxic Torts legislation which revived the long-outlawed dormant injury claims for DES and other substances (see, CPLR 214-c; see generally, Comment, Preconception Torts: Foreseeing the Unconceived, 48 U Colo L Rev 621; Phillips, An Analysis of Proposed Reform of Products Liability Statutes of Limitations, 56 NC L Rev 663; Note, Statutes of Limitations and the Discovery Rule in Latent Injury Claims: An Exception or the Law?, 43 U Pitt L Rev 501, 520-523). Suffice it to say, our Legislature has not chosen to cut off the claims of injured persons in Karen Enright's generation.
As the primary support for its decision, the majority refers to Albala v City of New York ( 54 N.Y.2d 269), a negligence case involving a single act of medical malpractice. One point must be emphasized. The decision in Albala poses no legal bar to recovery for a preconception tort and the case cannot be cited for that purpose. The Albala Court denied recovery for a preconception tort under the circumstances in that case solely on policy grounds, not for any legal or metaphysical reason arising from the fact that the injury occurred before the plaintiff was conceived. Indeed, the Albala opinion leaves little doubt that, in a proper case, there would be no legal impediment to a cause of action based on a preconception injury. In distinguishing Jorgensen v Meade Johnson Labs. ( 483 F.2d 237 [10th Cir 1973]) the Court in Albala highlighted the significant difference between a malpractice case and one "for which there is strict liability without fault." (Id., at 274, n.) The Court explained:
To be sure, as the majority points out (majority opn, at 388), both this case and Albala are "different from other negligence cases" in that in both the plaintiffs "were injured as a consequence of injuries to the reproductive systems of their mothers." But this difference is of no consequence (see, infra, at 394-396).
"Under a products liability theory, once a defect in manufacture or design is established or there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care (Codling v Paglia, 32 N.Y.2d 330). Accordingly, the necessity of establishing manageable bounds for liability is conspicuously absent. Since Jorgensen was not therefore concerned with the policy issues presented in the instant appeal, any reliance thereon is misplaced (see, also, Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke LJ 1401, 1436, 1438)." (Id., at 274, n [emphasis added].)
Thus, as the Albala opinion makes clear (id., at 274, n), the single act of malpractice in that case did not involve the compelling social and economic policies which prompted our adoption of strict products liability (see, e.g., Codling v Paglia, supra, at 338-342; Prosser and Keeton, op. cit., § 98; infra, at 392). More importantly, Albala implicated none of the deeply felt special concerns for the victims of the widespread marketing of DES which influenced the enactment of CPLR 214-c (see, Governor's Mem of approval, op. cit., at 3182-3184; Besser v Squibb Sons, 146 A.D.2d 107, 114).
In addition to what would seem to be the decisive policy differences between a malpractice action and a strict products liability action based on toxic tort, there is one significant factor impelling the Court's decision in Albala that has no bearing here — "the undesirable impact of encouraging the practice of `defensive medicine'." (Albala v City of New York, 54 N.Y.2d 269, 274, supra.) The action in Albala was for the consequences of an improperly performed abortion. In denying recovery for injuries to a subsequently conceived child, the Court stressed:
"A physician faced with the alternative of saving a patient's life by administering a treatment involving the possibility of adverse consequences to later conceived offspring of that patient would, if exposed to liability of the magnitude considered in this case, undoubtedly be inclined to advise against the treatment rather than risk the possibility of having to recompense a child born with a handicap. Accordingly, society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger." (Id., at 274 [emphasis added].)
Karen Enright's case, of course, does not involve the doctor-patient relationship and does not concern questions pertaining to the standard of knowledge, ability and care required of physicians. No "undesirable impact" of encouraging defensive medicine can result from a case of strict products liability based on the marketing of an unsafe drug where — as the Albala Court, itself, noted — "once * * * there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care (Codling v Paglia, 32 N.Y.2d 330)." (Albala v City of New York, supra, at 274, n [emphasis added].)
Moreover, this case presents none of the difficult moral dilemmas or problems of medical ethics (referred to in Albala) which can confront a physician called upon to render medical treatment to a mother which may possibly impair her offspring. The sole question here is whether Karen Enright, an innocent member of the class of persons adversely affected by DES, should be permitted to recover. None of the policy considerations in Albala suggests that she should not be.
I am convinced that existing legal doctrine and established policy point unequivocally to a decision upholding Karen Enright's cause of action. Let us assume for the sake of argument, however, that this is not so and that the appeal presents a "hard case" where there are no clearly discernible legal or policy guidelines. On this assumption, is there any underlying principled reason in fairness, justice or moral doctrine why Karen Enright's claim should be turned away? (See, Dworkin, Taking Rights Seriously, ch 4, "Hard Cases", at 81-130 ; Murphy and Coleman, Philosophy of Law, at 52-59 .) No such reason can be advanced because none exists. There are two fundamental principles of justice, however, which dictate that Karen Enright should be permitted to prove her case.
First, Karen Enright is a victim of what — if the allegations of her complaint are proven — amounts to a wrong of enormous proportions which inflicted grievous injuries on her and countless other innocent persons. Unless her case is barred on some legal or policy ground, she should be justly compensated for her injuries to the extent that our judicial system can accomplish this. Second, she is damaged no less than other victims of DES who make up the class. If they are permitted to recover, so should she be. To say that Karen Enright cannot recover is to abrogate one of the most basic of all principles — that "like cases should be treated alike".
Our established strict products liability jurisprudence mandated by considerations of "justice and common sense" (see, e.g., Hymowitz v Lilly Co., supra; Codling v Paglia, supra), the compelling social policies prompting the adoption of the Toxic Torts bill (CPLR 214-c), decisions in other jurisdictions allowing recovery for preconception torts and the legal commentary all call for a decision permitting Karen Enright to prove her claim (see, Jorgensen v Meade Johnson Labs., 483 F.2d 237, supra; Renslow v Mennonite Hosp., 67 Ill.2d 348, 367 N.E.2d 1250; Prosser and Keeton, op. cit., § 55, at 367-370; Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke LJ 1401, 1435-1439; Collins, An Overview and Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death and Wrongful Birth: Time for a New Framework, 22 J Fam L 677; Comment, Preconception Torts: Foreseeing the Unconceived, 48 U Colo L Rev 621). Yet the majority denies her this right. This decision, I submit, amounts to an exercise in discretion and line-drawing reflecting social and economic policy choices which should be made not by Judges but by legislators. I dissent.