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Copyright (c) 1991 Boston University School of Law.
American Journal of Law & Medicine

NOTE AND COMMENT: Preconception Tort Liability: Recognizing a Strict Liability Cause of Action for DES Grandchildren


17 Am. J. L. and Med. 435


Marisa L. Mascaro *



Diethylstilbestrol (DES) is a synthetic compound of the female hormone estrogen. 1 British researchers invented the drug in 1937, and physicians widely prescribed it from the 1940s through the 1970s for the purpose of preventing miscarriages. 2 In 1971, the Food and Drug Administration (FDA) banned the use of DES for this purpose after studies indicated that DES caused pre-cancerous 3 and cancerous growths in the reproductive tracts of the daughters of women who took DES. 4 Since that time, more than 1,000 "DES daughters" have filed lawsuits against the manufacturers of DES, alleging that the DES that their mothers ingested caused their insidious disease. 5

DES cases are breaking new ground in tort litigation. In March 1990, J. David Roberts filed a $ 2,000,000 lawsuit in the United States District Court for the District of Columbia against drug manufacturer Eli Lilly and Company, 6 alleging that his in utero exposure to DES caused his daughter's cancer. 7 Roberts sued under theories of strict liability, emotional distress, breach of warranty, negligence and misrepresentation. He also alleged that DES manufacturers conspired to produce the drug after they knew of its dangers. 8

This lawsuit appears to be the first one to claim that DES causes genetic mutation that leads to cancer in third generations. 9 Other third-generation suits allege that the drug causes physical deformities in the grandchildren of DES users. 10 These infant plaintiffs claim that their mothers' in utero exposure to DES ...
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