DES Litigation

DES (diethylstilbestrol) was prescribed for pregnant women during the 1950s and 1960s to help prevent miscarriages and premature deliveries. Research performed in 1958 concluded that DES did not help to prevent miscarriages or premature births. Nevertheless, physicians continued to prescribe the drug. According to the U.S. Centers for Disease Control and Prevention, an estimated 5 to 10 million people in the United States alone were exposed to DES from 1938 to 1971. This includes pregnant women and their children. A 1971 study indicated that DES was a cause of a rare vaginal cancer in girls and young women who had been exposed to DES before birth. As a result of this study, the U.S. Food and Drug Administration advised physicians in 1971 to stop prescribing DES.

In addition to vaginal cancer, DES has been linked to the following injuries:

• uterine, cervical or tubal anomalies which cause primary infertility, secondary infertility, miscarriage, pre-term delivery, ectopic pregnancy, hysterectomy, and stillbirth for women exposed to DES before birth
  
• vaginal constrictions and/or vaginal adenosis
  
• increased risk of breast cancer for women prescribed DES
  
• increased risk for non-cancerous epididymal cysts in men who were exposed to DES before birth

Numerous lawsuits have been filed against manufacturers and marketers of the drug, amounting to billions of dollars of recovery for DES victims. DES claims against the manufacturers or marketers of DES are generally based either on strict product liability or negligence. Thus, plaintiffs allege either that DES is a dangerously defective product or that the manufacturers or marketers either knew or should have known that the drug posed a risk to plaintiffs and that they breached a duty to plaintiffs in doing so.

To establish strict liability, a plaintiff must show that either she or her (or his) mother took DES, that DES caused the alleged injuries, and that the defendant manufactured or marketed the DES. Because the time between the ingestion of DES by pregnant mothers and the onset of illness or injury from the drug was often many years, it became difficult for plaintiffs to determine which manufacturer or marketer of DES was responsible for producing the DES taken by the plaintiffs' respective mothers. Consequently, courts began to apply a market-share theory of alternate liability. Under the market-share theory, a DES plaintiff could recover from one drug manufacturer or marketer or several manufacturers or marketers as long as the plaintiff established that the manufacturer or marketer produced or marketed the drug at or around the time their mother took the drug. To prove a negligence action for DES exposure, a plaintiff needs to show that the manufacturer or marketer of DES owed a duty to the plaintiff and that it knew or should have known that making or marketing DES constituted a breach of its duty to the plaintiff, causing the plaintiff's injuries. As with strict liability, a plaintiff alleging negligence against a DES defendant can use the market-share theory of liability.

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