United States District Court, Northern District of Illinois, E.D
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.
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 among
the parties are centered. See Ingersoll, 46 Ill.2d at 47-48,
262 N.E.2d at 596; Restatement (Second) of Conflict of Laws §
Accordingly this opinion looks to Illinois substantive law,
including its law of collateral estoppel.*fn5 It departs from
Illinois law only by using the more universal term "collateral
estoppel" (or the Restatement's "issue preclusion") rather
than "estoppel by verdict" (often used in the Illinois cases).
Application of Collateral Estoppel Principles
Collateral estoppel doctrine teaches "an adjudication on the
merits of an issue by a court of competent jurisdiction
precludes relitigation of the issue in a subsequent action."
Johnson v. Nationwide Business Forms, Inc., 103 Ill. App.3d 631,
633, 59 Ill.Dec. 339, 340, 431 N.E.2d 1096, 1097 (1st
Dist. 1981). In general it applies where (id.):
1. That issue decided in the prior adjudication
is identical to one presented in the current
2. Final judgment on the merits was rendered in
the first action.
3. Estoppel is asserted against a party
identical to or in privity with a party to the
All those requirements track those of the federal law on
collateral estoppel. Montana v. United States, 440 U.S. 147,
153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d
552 (1979); Continental Can Co. v. Marshall, 603 F.2d 590,
594-95 (7th Cir. 1979). Not surprisingly, they also accord with
generally accepted standards. Restatement §§ 27-29.
Wetherill and Rogers fail to meet the threshold burdens
placed on them. They must show "a finding of specific fact in
the former judgment or record that is material to that case
and to the pending case," and they must show "with clarity and
certainty the precise issues and judgment in the former
action." City of Chicago v. Westphalen, 93 Ill. App.3d 1110,
1120, 49 Ill. Dec. 419, 428, 418 N.E.2d 63, 72 (1st Dist.
1981), cert. denied, ___ U.S. ___, 102 S.Ct. 1625, 71 L.Ed.2d
But here they have submitted to this Court neither the
pleadings nor the trial record nor the actual record of the
judgment in Bichler. Instead they tender only a copy of the
opinion of the New York Court of Appeals affirming the jury
verdict, 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182
Wetherill and Rogers try to read the appellate opinion in
part as a prior adjudication with its own preclusive effect
and in part as an unambiguous reflection of the
Bichler trial record and judgment. They err in both respects,
for "it is the judgment, properly construed in the light of
pertinent facts, that creates the potential for collateral
estoppel, not the appellate decision affirming it." Kurek v.
Pleasure Driveway & Park District of Peoria, 583 F.2d 378, 380
(7th Cir. 1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59
L.Ed.2d 57 (1979).
This case demonstrates graphically the reason for the rule
stated in Kurek. Absence
of the Bichler trial record forecloses accurate discernment of
just what facts were fairly established at the trial or just
what facts were necessary to resolution in favor of the Bichler
plaintiff. Wetherill and Rogers quote the New York Court of
Appeals as holding the link between prenatal DES exposure and
the later development of vaginal cancer "has been
unquestionably confirmed" during the past decade. But the
appellate opinion makes no reference to the trial record in
support of that statement, citing instead a New York statute
and a law review note. 55 N.Y.2d at 577, 450 N.Y.S.2d at 778,
436 N.E.2d at 184. Similarly Wetherill and Rogers quote the
Court of Appeals as holding Lilly made certain admissions at
trial, 55 N.Y.2d at 586, 450 N.Y.S.2d at 783, 436 N.E.2d at
189, but Lilly contests that point vigorously. This Court
cannot resolve this factual dispute without the factual record.
Cf. Kemling v. Country Mutual Insurance Co., 107 Ill. App.3d 516,
522, 63 Ill.Dec. 331, 335-36, 437 N.E.2d 1253, 1257-58 (2d
Dist. 1982) (trial court had no record upon which to determine
whether defendant had a fair opportunity to contest fact issue
at prior arbitration proceeding).
Moreover, even were this Court able to divine the facts
fairly determined in Bichler, it cannot be discerned from the
appellate opinion alone how those facts related to the issues
actually controlling that case. In principal part the Court of
Appeals opinion deals with the imposition of liability on a
concerted action theory, as to which it rejected Lilly's
objections on procedural grounds. 55 N.Y.2d at 579, 450
N YS.2d 779, 780-82, 581-84, 436 N.E.2d at 185, 186-88.
Similarly, the Court of Appeals used a procedural point to
dispose of Lilly's objection to jury instructions on its duty
to warn under New York law. 55 N.Y.2d at 586-87, 450 N.Y.S.2d
783-84, 436 N.E.2d at 189-90.
Given the procedural cast of the Court of Appeals' opinion,
this Court cannot determine the precise ground for the
judgment against Lilly below. Without the pleadings that
framed the Bichler issues, the controlling issues may only be
guessed at — and that is not enough. And without the judgment
and the trial record, this Court cannot determine whether the
judgment against Lilly might have been based on several
different grounds no one of which was expressly relied on,
thereby barring invocation of collateral estoppel as to any of
them. See 1B Moore's Federal Practice § 0.443, at 3915 (2d
Finally, Wetherill and Rogers have clearly not met their
burden of establishing the identity between the issues
supposedly determined in Bichler and those controlling here:
1. Certainly Bichler's concerted action theory of
liability is irrelevant to these actions, where
Lilly is the identified source of the DES that
allegedly injured Wetherill and Rogers.
2. Bichler was also apparently decided on a
theory of "wrongful marketing" and failure to test,
55 N.Y.2d at 578, 450 N.Y.S.2d at 779, 436 N.E.2d
at 185, while Wetherill and Rogers have not shown
how such a theory is even relevant to Illinois
products liability law.
3. Bichler apparently involved a plaintiff who
had developed cancer as a result of administration
of DES to her mother in 1953.*fn6 Wetherill, on
the other hand, alleges she has cervical adenosis
as a result of her mother's 1951 exposure to
On the current presentations it is obviously impossible to
find an identity of controlling issues between
Bichler and the present action.
All the factors already discussed are rendered even more
critical by the existence of several judgments favorable to
DES litigation. See, e.g., Ryan v. Eli Lilly & Co., 514 F. Supp. 1004
(D.S.C. 1981) (though Ryan appeared to depend on issues
not controlling here); Payton v. Abbott Labs, 512 F. Supp. 1031
(D.Mass. 1981) (same). Again the paucity of information
prevents a determination whether those judgments were
inconsistent in whole or in part with Bichler in the respects
relevant to these actions. If they were, however, this Court
would also be required to decide whether inconsistent judgments
on the relevant issues would deny preclusive effect to
Bichler. Compare Restatement § 29(4) with Hardy v.
Johns-Manville Sales Corp., 509 F. Supp. 1353, 1362-63 (E.D.Tex.
1981), rev'd, 681 F.2d 334 (5th Cir. 1982).*fn8
In its approval of offensive collateral estoppel the Supreme
Court indicated the fundamental question for a trial court is
whether the application of the doctrine "would be unfair to a
defendant." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331,
99 S.Ct. 645, 652, 58 L.Ed.2d 552 (1979). Wetherill and Rogers
simply have not armed this Court with enough information to
justify a negative answer to that inquiry as a matter of law.
Their motion for "partial summary judgment" must be and is