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WETHERILL v. UNIVERSITY OF CHICAGO

September 10, 1982

RACHEL WETHERILL, PLAINTIFF,
v.
UNIVERSITY OF CHICAGO AND ELI LILLY AND COMPANY, DEFENDANTS. MAUREEN ROGERS, PLAINTIFF, V. UNIVERSITY OF CHICAGO AND ELI LILLY AND COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

In these diversity actions Rachel Wetherill ("Wetherill") and Maureen Rogers ("Rogers") allege they were injured by exposure in utero to the drug diethylstilbestrol ("DES"), manufactured and supplied by Eli Lilly and Company ("Lilly") and administered experimentally to their mothers when obstetrical patients at a hospital operated by the University of Chicago ("University"). Each of Wetherill and Rogers has moved for partial summary judgment against Lilly on several issues, invoking offensive collateral estoppel.*fn1 For the reasons stated in this memorandum opinion and order, partial summary judgment is denied.*fn2

Wetherill and Rogers claim:

    1. Certain issues were determined adversely to
  Lilly in a prior prenatal DES exposure suit,
  Bichler v. Eli Lilly & Co. (N.Y. Sup. Ct., Bronx
  Cty., July 16, 1979), aff'd, 55 N.Y.2d 571, 450
  N.Y.S.2d 776, 436 N.E.2d 182 (1982).
    2. Determination of those issues was necessary
  to resolution of Bichler in favor of the plaintiff
  there.
    3. Those issues are identical to several
  controlling issues raised by these actions.

Wetherill and Rogers seek to estop Lilly from relitigating the issues they cite. Alternatively they ask that Lilly be estopped at least from relitigating here issues allegedly conceded by Lilly in Bichler. In either event the proposed estoppel is the predicate for the summary judgment motion.*fn3

Lilly responds in two ways:

    1. Application of collateral estoppel would be
  inconsistent with the standards for issue
  preclusion developed in the case law and
  exemplified in the Restatement (Second) of
  Judgments ("Restatement") § 29 (1982).
    2. Wetherill and Rogers have not met their
  burden of showing the issues and facts they cite
  in Bichler (a) were necessarily determined there,
  (b) are identical to those raised here, and (c)
  will in fact control the resolution of these
  actions.

Though the first contention has possible force as well, the second is dispositive for current purposes.

Choice of Law

Under Erie v. Tompkins principles, state law provides the rules of decision on all questions of substance. As always, the first inquiry is as to Illinois choice-of-law rules.

In these tort actions Illinois courts would apply the law of the state with the "most significant relationships" to the allegations of the complaint. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). Although all the parties except University are out-of-staters,*fn4 all other relevant factors point to Illinois itself. Illinois is the place of the alleged injuries, the place where the alleged tortious conduct occurred, University's place of incorporation and physical presence, and the place where the relevant relationships ...


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