Therese Marie Collins, Now Known as Therese Marie Gastrow, Plaintiff-Appellant v. Eli Lilly Company ; Rexall Drug…

Summary

The court held that a DES plaintiff who cannot identify the precise manufacturer may proceed under a risk-contribution approach if she proves exposure, causation, the defendant's production or marketing of the relevant type of DES, and a legally recognized breach of duty. The court rejected alternative liability, concerted action, enterprise liability, civil conspiracy, and unalloyed market-share liability as insufficiently workable, but allowed liability to be apportioned among defendants through comparative-fault principles and permitted impleader of potentially responsible drug companies. It affirmed summary judgment on the misrepresentation claim for lack of reliance, reversed summary judgment on the general liability claims, and affirmed denial of leave to amend the complaint. Justice Abrahamson, concurring, agreed that the complaint stated a claim but would treat comparative negligence as applicable only by analogy and did not join the punitive-damages discussion.