Opinion · Nylaw New York
MATTER OF NEW YORK COUNTY DES ACTIONS, 238 A.D.2d 172 [1st Dept 1997]
In the Matter of N.Y. COUNTY DES ACTIONS.PATRICIA KUSH, Appellant, v. ABBOTT LABORATORIES et al., Respondents., 238 A.D.2d 172 (Appellate Division of the Supreme Court of New York, First Department. 1997)
- Type
- Opinion
- Court
- Nylaw New York
- Jurisdiction
- Nylaw
- Date
- 1997-04-08
- Topic
- general
MATTER OF NEW YORK COUNTY DES ACTIONS, 238 A.D.2d 172 [1st Dept 1997] In the Matter of NEW YORK COUNTY DES ACTIONS.PATRICIA KUSH, Appellant, v. ABBOTT LABORATORIES et al., Respondents.Appellate Division of the Supreme Court of New York, First Department. April 8, 1997 Order, Supreme Court, New York County (Ira Gammerman, J.), entered December 27, 1995, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff, who alleges that her mother ingested DES in Pennsylvania, where she was born in 1959 and resided until she moved to Massachusetts in 1984, is unable to identify the manufacturer of the DES her mother ingested, and urges application of the "market share" theory of liability. However, such is contrary to our recent precedent holding that where foreign residents' exposures to DES occurred in foreign States, and New York's connection to the actions is tenuous at best, "the substantive laws of the respective foreign States are applicable (see, Schultz v.
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Plaintiff, who alleges that her mother ingested DES inPage 173Pennsylvania, where she was born in 1959 and resided until she moved to Massachusetts in 1984, is unable to identify the manufacturer of the DES her mother ingested, and urges application of the "market share" theory of liability. However, such is contrary to our recent precedent holding that where foreign residents' exposures to DES occurred in foreign States, and New York's connection to the actions is tenuous at best, "the substantive laws of the respective foreign States are applicable (see, Schultz v. Boy Scouts,65 N.Y.2d 189;Neumeier v. Kuehner,31 N.Y.2d 121, 128)" (Godfrey v. Eli Lilly Co.,223 A.D.2d 427,428,lv denied88 N.Y.2d 801).
Even assuming that plaintiff's injuries occurred in Massachusetts, where the effects of her mother's ingestion of DES became manifest, "the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred" (Schultz v. Boy Scouts, supra, at 195). We agree with the Federal District Court (ED NY) that the relevant "last event" was either the ingestion of DES by plaintiff's mother or plaintiff's birth (Ashley v. Abbott Labs.,789 F. Supp. 552,567,appeal dismissed7 F.3d 20), both of which occurred in Pennsylvania, and whose law therefore applies. Pennsylvania has not, as of this date, adopted a "market share" liability theory, described by its Supreme Court as a "significant departure" from its "general rule that a plaintiff, in order to recover, must establish that a particular defendant's negligence was the proximate cause of her injuries" (Skipworth v. Lead Indus.Assn.,547 Pa. 224,231,690 A.2d 169,172). As we noted inGodfrey v. Eli Lilly Co.(supra, at 428), "it would be improper and presumptuous for the courts of this State to expand the theories of products liability recognized by Foreign States".
Concur — Rosenberger, J.P., Wallach, Nardelli and Rubin, JJ.