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WETHERILL v. UNIVERSITY OF CHICAGO
September 10, 1982
RACHEL WETHERILL, PLAINTIFF,
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
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
Though the first contention has possible force as well, the
second is dispositive for current purposes.
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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