Grover v. Eli Lilly & Co.

591 N.E.2d 696, 63 Ohio St. 3d 756
Ohio Supreme Court·Decided June 10, 1992·No. No. 90-1030·Published·Cited by 23 cases

Opinions

Wright, J.

The United States District Court for the Northern District of Ohio has certified the following question to us:

“Does Ohio recognize a cause of action on behalf of a child born prematurely, and with severe birth defects, if it can be established that such injuries were proximately caused by defects in the child’s mother’s reproductive system, those defects in turn being proximately caused by the child’s grandmother ingesting a defective drug (DES) during her pregnancy with the child’s mother?”

For purposes of this question, we are required to assume that Charles Grover can prove that his injuries were proximately caused by his mother’s [758]*758exposure to DES. We are not evaluating the facts of this case, but determining, as a matter of law, whether Charles Grover has a legally cognizable cause of action.

DES was prescribed to pregnant women during the 1940s, 1950s and 1960s to prevent miscarriage. The FDA banned its use by pregnant women in 1971 after medical studies discovered that female children exposed to the drug in útero had a high incidence of a rare type of vaginal cancer. See 36 Fed.Reg. 21,537 (1971). Candy Grover was exposed to DES as a fetus. Her son, Charles Grover, claims that his mother’s DES-induced injuries were the cause of his premature birth and resulting injuries.

Because the mother and the child whose injury results from her injury are uniquely interrelated, and because it is possible that the mother may not discover the extent of her own injury until she experiences difficulties during pregnancy, the facts of this case pose a novel issue. Courts and commentators refer to the child’s potential cause of action in such cases as a “preconception tort.” See, e.g., Note, Preconception Torts: Foreseeing the Unconceived (1977), 48 U.Colo.L.Rev. 621. The terminology stems from the fact that a child is pursuing liability against a party for a second injury that flows from an initial injury to the mother that occurred before the child was conceived.

Only a handful of courts have addressed whether a child has a cause of action for a preconception tort. One recurring issue is whether a child has a cause of action if a physician negligently performs a surgical procedure on the mother, such as an abortion or a Caesarean section, and the negligently performed procedure causes complications during childbirth several years later that injure the infant. See Albala v. New York (1981), 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786 (child has no cause of action for doctor’s negligence during abortion performed four years prior to his conception); Bergstreser v. Mitchell (C.A.8, 1978), 577 F.2d 22 (construing Missouri law) (child has a cause of action against a doctor based on the doctor’s negligence during a Caesarean section performed two years prior to the child’s conception). In another malpractice suit, the Illinois Supreme Court recognized that a child had a cause of action against a hospital that negligently transfused her mother with Rh-positive blood eight years prior to the child’s conception. Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250. As a result, the mother’s body produced antibodies to the Rh-positive blood that later injured her fetus during pregnancy. See, also, Monusko v. Postle (1989), 175 Mich.App. 269, 437 N.W.2d 367 (allowing cause of action by child against her mother’s physicians for failure to inoculate the mother with rubella vaccine prior to the child’s conception).

[759]*759In McAuley v. Wills (1983), 251 Ga. 3, 303 S.E.2d 258, the Supreme Court of Georgia evaluated a wrongful death action brought on behalf of an infant who died during childbirth due to the mother’s paralysis. The suit was brought against the driver who had originally caused the mother’s paralysis in an automobile accident. The court held that a person may owe a duty of care to a child conceived in the future, but also held that the injury in that case was too remote as a matter of law to support recovery. Id. at 6-7, 303 S.E.2d at 260-261. The driver could not reasonably foresee, as a matter of law, that his lack of care in driving a motor vehicle would result in complications during the delivery of a child who was not yet conceived at the time of the accident. Id.1

The facts of these cases are significantly different from those of the case before us. The cause of action certified to us involves the scope of liability for the manufacture of a prescription drug that allegedly had devastating side effects on the original patient’s female fetus. However, this case is not about the devastating side effects of DES on the women who were exposed to it, which have indeed been well documented in medical studies and court opinions. See authorities cited infra at 763-764 (Resnick, J., dissenting) and the discussion of the state of medical research at 765-766 (Resnick, J., dissenting). This case is concerned with the rippling effects of that exposure on yet another generation, when that female child reaches sexual maturity and bears a child. Because a plaintiff in Charles Grover’s position cannot be injured until the original patient’s child bears children, the second injury will typically have occurred more than sixteen years after the ingestion of the drug.

Several courts have addressed a fact pattern virtually identical to the facts of the case currently before this court. The New York Court of Appeals held that a child does not have a cause of action, in negligence or strict liability, against a prescription drug company based on the manufacture of DES if the [760]*760child was never exposed to the drug in útero. Enright v. Eli Lilly & Co. (1991), 77 N.Y.2d 377, 568 N.Y.S.2d 550, 570 N.E.2d 198, certiorari denied (1991), 502 U.S. -, 112 S.Ct. 197, 116 L.Ed.2d 157. The court relied in part on its earlier opinion in Albala v. New York, supra. In both cases, the court was 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 by what standard and the difficulty in establishing a standard or definition of perfection. * * *” Id., 54 N.Y.2d at 273, 445 N.Y.S.2d at 109, 429 N.E.2d at 788. See Enright v. Eli Lilly & Co., supra, 77 N.Y.2d at 384, 568 N.Y.S.2d at 553, 570 N.E.2d at 201. The court was troubled by the possibility that doctors would forgo certain treatments of great benefit to persons already in existence out of fear of possible effects on future children. Albala, supra, 54 N.Y.2d at 274, 445 N.Y.S.2d at 110, 429 N.E.2d at 788-789. In Enright, the court noted that “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 * * *. Limiting liability to those who ingested the drug or were exposed to it in útero serves this purpose.” Id.,

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Grover v. Eli Lilly & Co., 591 N.E.2d 696, 63 Ohio St. 3d 756 (Ohio 1992).

591 N.E.2d 696 (Grover v. Eli Lilly & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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