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November 21, 1994



Campbell, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

This appeal arises out of a pharmaceutical product liability action brought by plaintiffs, Marianne Millar-Mintz (Marianne) and Dan Mintz, against various drug companies, seeking recovery for injuries allegedly caused by Marianne's mother's ingestion of diethylstilbestrol (DES). The trial court granted the drug companies' joint motion to dismiss plaintiffs' second amended complaint, on the ground that our supreme court's decision in Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560 N.E.2d 324, 148 Ill. Dec. 22, precluded plaintiffs' claim. Plaintiffs now appeal the dismissal of count II of their second amended complaint, contending that the trial court erred in refusing to apply the substantive law of New York to their claim. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. Marianne was born in New York on February 15, 1949. While Marianne's mother, Gussie Millar, was pregnant with Marianne, Gussie took DES on a prescription from her obstetrician. In 1969 or 1970, Marianne moved to California. Sometime in the mid 1970s, Marianne was examined at a DES clinic in California, where she was advised that she had vaginal adenosis, a benign condition that was associated with prenatal DES exposure. In 1977, Marianne married Dan Mintz, and the couple moved from California to Illinois, where they continue to reside.

Plaintiffs first attempted to have a child in 1981. After failing to conceive, Marianne sought medical care from Dr. James Schreiber, the former head of reproductive endocrinology at the University of Chicago Hospitals. In 1983, Dr. Schreiber informed Marianne thatshe had an unusual T-shaped uterus and abnormally small cervix, that these abnormalities were associated with prenatal exposure to DES and that they prevented her from conceiving. Dr. Schreiber continued to examine and treat Marianne for her inability to conceive until 1986, including two attempts at in vitro fertilization. In 1986, Dr. Schreiber advised Marianne that her infertility problems were consistent with his previous diagnosis.

On November 12, 1986, plaintiffs filed a two count complaint against seven pharmaceutical companies that had manufactured and sold DES, alleging strict products liability (count I) and negligence (count II). In count II, plaintiffs alleged that they could not identify the manufacturer of the DES ingested by Gussie Millar during her pregnancy with Marianne, but that all manufacturers of DES were liable for Marianne's infertility under a "market share liability" theory. On November 3, 1987, the trial court, Judge Myron T. Gomberg presiding, struck portions of count I of plaintiffs' complaint, and granted leave to plaintiffs to file an amended complaint. Subsequently, in separate orders, the trial court, Judge Thomas P. Quinn presiding, granted defendants' separate motions to dismiss count I of plaintiffs' first amended complaint as barred by the Illinois statute of repose.

On November 14, 1990, the trial court, Judge Paddy H. McNamara presiding, dismissed count II of plaintiffs' first amended complaint on defendants' motions for judgment on the pleadings based on the supreme court's holding in Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560 N.E.2d 324, 148 Ill. Dec. 22. In Smith, our supreme court rejected the "market share liability" theory as viable for tort claims in Illinois. At that time, the trial court granted plaintiffs' motion to file a second amended complaint, providing plaintiffs an opportunity to assert some other theory of recovery.

On November 21, 1990, plaintiffs filed their second amended complaint in two counts, alleging in count II a modified theory of market share liability as announced in the New York case, Hymowitz v. Eli Lilly & Co., (1989), 73 N.Y.2d 487, 541 N.Y.S. 2d 941, 539 N.E.2d 1069, and asserting for the first time that the substantive law of New York governed their action. Defendants filed a joint motion to dismiss plaintiffs' second amended complaint pursuant to section 2-619 of the code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619 (Now ILCS (West 1992))), arguing that under a "choice of law" analysis, Illinois has the most significant relationship to plaintiffs' claim, and that plaintiffs' claim is precluded by Smith.

After fully considering the briefs of both parties, on June 29, 1992, the trial court ruled as follows:

"The Plaintiff, I believe, suffered her injury when she found out that she was unable to have children. At that point, then, she has the right to take whatever steps necessary, * * * to protect her claim. And I think, as a matter of public policy, if we required Plaintiffs then to travel back to whatever state or location their mother 20 to 40 years before ingested a drug, that that would be against the public policy of the State of Illinois * * *.

For those reasons, I think that Illinois is really the state with the most interest in this action. And the Illinois courts have told us that they are not recognizing this particular cause of action.

Additionally, I'd say that it appears to me that New York has specifically stated that they would not recognize the Plaintiff's case in New York; that there was a very short window of opportunity that was available only for New York residents to bring their D.E.S. claims. * * * The New York courts have acted and said that they are not recognizing claims brought on behalf of people who are residents of other states."

The trial court granted defendants' motions to dismissplaintiffs' second amended complaint on the ground that the substantive law of Illinois, and the supreme court's decision in Smith, applied and precluded plaintiffs' ...

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