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LINDA BURNSIDE AND SPENCER BURNSIDE v. ABBOTT LABORATORIES (12/20/85)

filed: December 20, 1985.

LINDA BURNSIDE AND SPENCER BURNSIDE, HER HUSBAND; DONNA GIORDANO AND MIRON J. GIORDANO, HER HUSBAND; CAROL JANOSS, AN INDIVIDUAL; ANN S. LYNCH AND MICHAEL P. LYNCH, HER HUSBAND; NANCY STARK AND RICHARD STARK, HER HUSBAND, APPELLANTS,
v.
ABBOTT LABORATORIES, A CORPORATION; ADRIA LABORATORIES, INC., A SUBSIDIARY OF HERCULES, INC.; ALCON LABORATORIES, INC., A CORPORATION; AMFRE-GRANT, INC., A SUBSIDIARY OF ORMONT DRUG AND CHEMICAL, A CORPORATION; ARMOUR PHARMACEUTICAL CO., A SUBSIDIARY OF REVLON, INC.; BREON LABORATORIES, INC., A SUBSIDIARY OF STERLING DRUG, INC., A CORPORATION; BURROUGHS WELLCOME COMPANY, A SUBSIDIARY OF THE WELLCOME FOUNDATION, INC., A CORPORATION; C.D. SMITH DRUG COMPANY, A CORPORATION; CARNRICK LABORATORIES, A DIVISION OF G.W. CARNRICK COMPANY, A CORPORATION: CHEMETRON CORPORATION, A CORPORATION; COLE PHARMACAL COMPANY, INC., A SUBSIDIARY OF O'NEAL, JONES & FELDMAN, INC., A CORPORATION; DORSEY LABORATORIES, A DIVISION OF SANDOZ, INC., A CORPORATION; DRUG PRODUCTS COMPANY, INC., A CORPORATION; E.R. SQUIBB & SONS, INC., A SUBSIDIARY OF SQUIBB CORPORATION, A CORPORATION; ELI LILLY & CO., A CORPORATION; KREMERS-URBAN COMPANY; MERCK & COMPANY, INC., A CORPORATION; MERCK, SHARP & DOHME, A DIVISION OF MERCK AND COMPANY, A CORPORATION; MERRELL-DOW PHARMACEUTICALS, A DIVISION OF RICHARDSON-MERRELL, A CORPORATION; MILLER PHARMACAL GROUP; NATIONAL DRUG COMPANY, A DIVISION OF RICHARDSON-MERRELL, INC., A CORPORATION; PHYSICIANS DRUG & SUPPLY COMPANY, A CORPORATION; PHYSICIANS & HOSPITALS SUPPLY COMPANY, A CORPORATION; PREMO PHARMACEUTICAL LABORATORIES, INC., A CORPORATION; REVLON, INC., A CORPORATION; REXALL DRUG COMPANY, A CORPORATION; RICHARDSON-MERRELL, INC., A CORPORATION; ROWELL LABORATORIES, INC., A CORPORATION; SANDOZ, INC., A CORPORATION; SMITH-DORSEY STERLING DRUG COMPANY, INC., A CORPORATION; SQUIBB CORPORATION, A CORPORATION; ULMER PHARMACAL COMPANY, A DIVISION OF PHYSICIANS & HOSPITALS SUPPLY COMPANY, A CORPORATION; UPJOHN COMPANY, A CORPORATION; VALE CHEMICAL COMPANY; VITAMINS, INC., A CORPORATION; WANDER COMPANY, A CORPORATION; WARREN-TEED PHARMACEUTICALS, INC., A SUBSIDIARY OF ROHM AND HAAS CO., A CORPORATION; WEBCON PHARMACEUTICALS COMPANY, A SUBSIDIARY OF ALCON LABORATORIES, A CORPORATION; WILLIAM H. RORER, INC., A CORPORATION; WILLIAM S. MERRELL COMPANY, A DIVISION OF RICHARDSON-MERRELL, INC., A CORPORATION. APPEAL OF LINDA BURNSIDE AND SPENCER BURNSIDE, DONNA GIORDANO AND MIRON J. GIORDANO, CAROL JANOSS, NANCY STARK AND RICHARD STARK, AND ANN S. LYNCH AND MICHAEL P. LYNCH



Appeal from Orders of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 82-02278.

COUNSEL

John T. Tierney, III, Pittsburgh, for appellants.

Frederick N. Egler, Pittsburgh, for Abbott, appellee.

Richard DiSalle, Pittsburgh, for Merck, appellee.

Kerry A. Kearney, Pittsburgh, for all appellees.

Rowley, Wieand and Del Sole, JJ. Del Sole, J., files a concurring and dissenting Statement.

Author: Wieand

[ 351 Pa. Super. Page 269]

In this action stating five separate claims for injuries allegedly sustained by five women against all pharmaceutical companies who allegedly manufactured diethylstilbestrol (DES), in which the women alleged that the drug had been ingested by their mothers (only one alleged that she had ingested the drug herself), the trial court granted complete or partial summary judgments in favor of twenty-six named defendants whose products could not have caused the injuries sustained by the plaintiffs designated in the defendants' respective motions for summary judgment. In an appeal from these summary judgments, the plaintiff-appellants do not dispute that the defendant-appellees' products could not have been ingested by them or their mothers, but they contend that there should be industry-wide liability for injuries caused by the ingestion of DES. We reject this

[ 351 Pa. Super. Page 270]

    argument and affirm the trial court's order entering summary judgment.

In separate actions against seventy-two pharmaceutical companies, four women alleged various physical disabilities which they attributed to the ingestion of DES by their mothers during pregnancies in the 1950's. Another woman's cause of action, i.e., that of Mrs. Stark, was based upon her own ingestion of DES. DES is a synthetic estrogen first synthesized in 1937 and frequently prescribed by physicians for various purposes, including deterrence of miscarriages. The complaints in this case did not contain averments regarding the identity of the manufacturer whose product had been ingested by the respective users. Plaintiffs concede that they cannot do so. Instead, their complaints contained averments that the defendant pharmaceutical companies were jointly and/or severally liable because, at the time of ingesting the drug, DES was being marketed in generic form.

On June 22, 1982, pursuant to an uncontested motion by Eli Lilly and Company, one of the defendants, the trial court issued an order relating to organization of the defendants and discovery. The order called for a "first stage" of discovery to end June 30, 1983. It said:

The Court recognizes that this is a complicated action which will require a considerable amount of discovery. The Court also recognizes that time and expense to all parties will be minimized if the first stage of such discovery is limited to the determination of which defendants are proper parties to this action. After a determination of the identity of the product ingested by the mothers of plaintiff daughters, some defendants may wish to file motions for relief by way of dismissal, summary judgment or otherwise. . . .

(emphasis added). The court ordered further that first stage discovery should consist of depositions, interrogatories and requests for admissions of those who may aid in the determination of the proper parties to the action. Plaintiffs were given until September 1, 1982 to effectuate

[ 351 Pa. Super. Page 271]

    service on all defendants. During the course of first stage discovery, thirty-two of the original seventy-two defendants were dismissed without objection by the plaintiffs. Seventeen defendants were dismissed because appellants had failed to serve them. Fifteen others were dismissed because each had demonstrated that its products could not have been ingested by any of the alleged users. As of July, 1983, therefore, only forty of the original seventy-two defendants remained as party defendants.

Twenty-six of the forty remaining defendants thereafter filed motions for summary judgment. Each of these defendants argued that discovery proceedings had revealed that the plaintiffs named in its motion for summary judgment could not have been exposed to and injured by its product. The trial court, by orders dated April 11, 1984 and April 13, 1984, granted partial or complete summary judgment in favor of the moving defendants as follows:

1) In favor of

Rexall Drug Company

Ulmer Pharmacal Company

Sandoz, Inc.

Dorsey Laboratories

The Wander Company

Smith-Dorsey Sterling Drug Company

Adria Laboratories

     against all plaintiffs. (Appeal docketed at No. 590 Pittsburgh, 1984).

2) In favor of

Burroughs Wellcome Company

Premo Pharmaceutical Laboratories, Inc.

William Rorer, Inc.

Abbott Laboratories

Upjohn Company

Kremers-Urban Company

Armour Pharmaceutical Co.

Revlon, Inc.

Carnrich Laboratories

[ 351 Pa. Super. Page 272]

Cole Pharmacal Company

Amfre-Grant, Inc.

Merck & Company

Merck, Sharp & Dohme and against Donna and Miron Giordano and Nancy and Richard Stark. (Appeal docketed at No. 591 Pittsburgh, 1984).

3) In favor of

Merrell-Dow Pharmaceuticals

Richardson-Merrell, Inc.

William S. Merrell Company

The National Drug Company

Burroughs Wellcome Company

Armour Pharmaceutical Co.

Revlon, Inc. and against Linda and Spencer Burnside and Carol Janoss. (Appeal docketed at ...


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