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Namm v. Frosst

Decided: February 5, 1981.

GAIL NAMM AND PAUL NAMM, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
CHARLES E. FROSST AND CO., INC., LAKESIDE LABS, A DIVISION OF COLGATE PALMOLIVE CO., AYERST MCKENNA AND HARRISON LTD., S.P. DURST AND CO. INC., METROPOLITAN LABS, INC., A DIVISION OF MICHIGAN CHEMICAL CORP., DRUG PRODUCTS COMPANY, HARROWER LABS INC., WINTHROP PRODUCTS, A DIVISION OF STERLING DRUG INC., SCHIEFFELIN CO., DIFCO LABS INC., KREMERS-URBAN CO., BUFFINGTONS INC., RAYMER PHARMACAL CO., LEDERLE LABS, A DIVISION OF AMERICAN CYNAMID CO., PRO-MEDICO LABS INC., PITMAN-MOORE CO., A DIVISION OF DOW CHEMICAL CO., ZIEGLER PHARMACAL CO., J.F. HARTZ AND CO., UNITED DRUG CO., ADSON-INTRASOL LABS INC., PHYSICIANS DRUG AND SUPPLY CO., SHORES CO., VANPATTEN PHARM CO., BROAD RESEARCH LABS INC., WILLIAM F. STRAUB AND CO., MUTUAL PHARMACAL CO., C.B. KENDALL CO., A DIVISION OF WESTERFIELD PHARM CO., DIRECT SALES CO., INC., HOOSIER PHARMACAL CO., PURITY DRUG CO., INC., GLAXO RESEARCH LTD./ENGLAND HORTON AND CONVERSE, FIDELITY MED SUPPLY CO., HIGH CHEMICAL CO., A DIVISION OF DAY AND FRICK, INC., VERAX PRODS INC., BEATRICE SCIENTIFIC CO., SUCCESSOR IN INTEREST TO WESTFIELD LABORATORIES, INC., AND GRANT CHEMICAL CO., DEFENDANTS, AND ELI LILLY & COMPANY, DURR-FILLAUER MEDICAL, INC., ABBOTT LABS, AYERST LABS INC., A DIVISION OF AMERICAN HOME PRODUCTS CORP., E.R. SQUIBB AND SONS INC., A DIVISION OF OLIN MATHISON CHEMICAL CORP., MERCK SHARP AND BOHME, A DIVISION OF MERCK AND CO., INC., ARMOUR LABS, A DIVISION OF ARMOUR PHARM. CO., WINTHROP CHEMICAL CO., UPJOHN COMPANY, MERRELL-NATIONAL LABS, A DIVISION OF RICHARDSON-MERRELL INC., BURROUGHS WELLCOME AND CO., INC., SMITH MILLER AND PATCH INC., ENDO PRODUCTS INC., CROOKES LABS INC., WILLIAM H. RORER INC., CARROLL D. SMITH PHARMACAL CO., A DIVISION OF SMITH MILLER AND PATCH INC., COLE PHARMACAL CO., MCNEIL LABS INC., HARVEY LABS INC., PENNWALT CORPORATION, SUCCESSOR TO R.J. STRASENBURGH, INC., IMPROPERLY DESIGNATED AS R.J. STRASENBURGH LABS, A DIVISION OF WALLACE AND TIERNAN, INC., E.S. MILLER LABS INC., A DIVISION OF SMITH MILLER AND PATCH INC., PREMO PHARM LABS INC., BLUE LINE CHEMICAL CO., FLINT-EATON AND CO., A DIVISION OF BAXTER LABS INC., E.L. PATIH CO., VAN PELT AND BROWN INC., S.B. PENICK AND CO., CIBA PHARM PRODUCTS INC., A DIVISION OF CIBA PHARM CO., MALTBIE LABS, INC., IMPROPERLY DESIGNATED AS MALTBIE LABS, A DIVISION OF PENNWALT CORP., VALE CHEMICAL CO., INC., G.H. SHERMAN MD, INC., G.W. CARNRICK CO., WILLIAM WARNER, A DIVISION OF WARNER HUDNUT INC., S.E. MASSENGILL CO., GELATIN PRODS CO., WALLACE AND TIERNAN PRODS INC., U.S. STANDARD PRODS CO., BOYLE AND CO., AND REXALL DRUG CO., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Bischoff, Francis and Morton I. Greenberg. The opinion of the court was delivered by Bischoff, P.J.A.D.

Bischoff

[178 NJSuper Page 24] This is a pharmaceutical products liability case wherein plaintiffs appeal from a summary judgment dismissing their complaint against approximately 44 drug manufacturing and distributing companies. The complaint charges defendants with liability based upon principles of negligence, breach of warranties and strict liability.

Plaintiffs Gail Namm and Paul Namm, are husband and wife and in their complaint they allege that prior to February 15, 1949 all of the defendants named "manufactured, compounded, tested, sold and marketed" large quantities of synthetic estrogen known as "diethylstilbestrol", "stilbestrol" and "dienestrol" (hereinafter referred to collectively as DES) in prescription drug form. The drug was promoted for use by pregnant women to prevent loss of the fetus by spontaneous abortion. Plaintiff Gail Namm was born February 15, 1949. Prior thereto her mother had ingested DES obtained by prescription from her obstetrician to prevent termination of her pregnancy by spontaneous abortion. Plaintiffs allege that Gail Namm developed adenocarcinoma of the vagina and "underwent a total abdominal hysterectomy" in August 1975, and that the adenocarcinoma Gail developed was caused by the DES ingested by her mother.

The complaint was filed August 1, 1977. Although more than 300 companies*fn1 have manufactured or sold DES since 1941, the complaint names only 74 companies as defendant-manufacturers; 44 were served and answered the complaint. On June 22, 1977 an order was entered fixing dates for service of the complaint and for the filing of answers. The order postponed indefinitely the assertion of crossclaims and third-party claims and provided for orderly discovery as to the identification of the pharmaceutical and the identification of the manufacturer. Discovery as to identification was obtained from plaintiffs, Gail Namm's parents, their doctor and pharmacist, hospital records and representatives of defendant drug companies. The primary source of information as to identification of both the drug and the manufacturer was obtained from Mrs. Vernick, Gail's mother.

She recalled that she obtained pills (as opposed to capsules or other forms of oral medication) during her pregnancy. The original prescription came from Dr. Bogen, her obstetrician, and the medication was obtained from Elks Drug Store in Brooklyn. While she did not recall what the pill container looked like, she did recall there were several different pill sizes but none smaller than five milligrams. They were white or light in color and contrasted with the dark surface of her kitchen counter. She was unable to provide any other details concerning the appearance or physical characteristics of the pills.

The owner of the pharmacy obtained drug supplies from wholesalers, cash peddlers, manufacturers and other local drug stores. He had no recollection or records which shed any light on either the source of his supply of DES or purchases by the Vernicks. Nor was he able to state when he first began to supply DES, where he obtained it or the physical characteristics of the DES he did supply.

Other discovery did not provide any information whatsoever as to the identification of the manufacturer or distributor or as to the nature or appearance of the pharmaceutical.

All defendants thereafter moved for summary judgment, primarily on the grounds that plaintiff had failed to identify the manufacturer or to produce any evidence linking any individual defendant with the drugs which allegedly caused plaintiff's injuries (the defendants have many other defenses which are all reserved and are not involved in this appeal). It was for this reason that the trial judge granted the summary judgment as to all 44 defendants.

Plaintiffs conceded at oral argument in the trial court and before us that they were unable to identify the manufacturer or distributor of the drug allegedly causing plaintiff's injury and that it was unlikely that they would be able to do so. However, for reasons to be considered below, plaintiffs argue it is not necessary that they do so in order to maintain this action.

The history of the development and marketing of DES is developed in the record herein and has been set forth in detail in two reported cases. Lyons v. Premo Pharmaceutical Labs , 170 N.J. Super. 183 (App.Div.1979); Feriggno v. Eli Lilly & Co. , 175 N.J. Super. 551 (Law Div.1980). See, also Sindell v. Abbott Laboratories, supra. The narrow issue presented by this appeal makes it unnecessary for us to consider this historical background other than to note that the manufacture, development and marketing of the pharmaceutical has continued since 1941 and that its use for various medical problems has been and still is approved, although approval for its use in the prevention of spontaneous abortion was discontinued in 1971.

The order and judgment entered on July 20, 1978 granting defendants' motion for summary judgment reserved to plaintiffs the right to apply for relief from the judgment within a reasonable time if they obtain knowledge of facts linking one of the defendants named to the product allegedly used by plaintiff's mother and alleged by plaintiff to have caused Gail Namm's injury.

"It is a fundamental principle of products liability law that a plaintiff must prove, as an essential element of his case, that the defendant manufacturer actually made the particular product which caused injury." Gray v. U.S. , 445 F. Supp. 337, 338 (S.D.Tex.1978); 1 Hursh & Bailey, American Law of Products Liability 2d, § 1:41 (1974); 63 Am.Jur. 2d Products Liability , § 5 at 12 (1972); e.g., Scanlon v. General Motors Corp. , 65 N.J. 582, 590 (1974); Annotation, "Identity of Manufacturer of Defective Part," 51 A.L.R. 3rd 1344, 1351.

In an attempt to circumvent this general principle plaintiffs place reliance upon two theories of liability which have been described as "alternative liability" and "enterprise liability." Plaintiffs contend that the application of either or both of these theories establishes that the grant of summary judgment was improper.

Alternative Liability

This theory is said to evolve from those cases which hold that if a party cannot identify which of two or more defendants caused an injury, the burden of proof may shift to the defendants to show that they were not responsible for the harm. Sindell v. Abbotts Laboratories, supra , 607 P. 2d at 928. This theory does not apply where a joint tort is involved, but rather where independent acts by two or more joint tortfeasors are alleged to have occurred, with all the ...


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