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In re DES CASES.
Deborah ASHLEY and Andrew Ashley, Marjorie Berger, Kathy Broaddus and Kerry Wayne Broaddus, Ann Danoff and Christopher Wang, Maureen Kent and Steven Kass, Nancy Kirsch and Steven Kirsch, Carol Rosenthal and Barry Rosenthal, Eva Zweifler and Vincent Alvarado, Gail Buckman and Michael Sklaroff, Tracy Wellman and Gary R. Scandell, Robin Edwards and Frank J. Edwards, Carrie Bristol and Zeke Bristol, Karen Hinton and David Hinton, Kyle Kouzes and Steve Kouzes, Jennifer Lynch, Barbara Bilder and Daniel Waldman, Linda Montgomery and Newman Montgomery, Plaintiffs,
v.
The ABBOTT LABORATORIES, American Pharmaceutical Co., Beecham Laboratories, Boehringer Ingelheim Pharmaceuticals, Inc., Boyle & Co. Pharmaceuticals, Burroughs-Wellcome & Co., Inc., Carnrick Laboratories, Inc., previously known as G.W. Carnrick Co., Inc., Chase Chemical Co., Chromalloy American Corp., Cooper Holdings, Inc., previously known as Cooper Laboratories, Dart Industries, Inc., previously known as Rexall Drug Co., Inc., Emons Industries, Inc., Key Pharmaceuticals, Kremers-Urban Co., now known as Mequon Co., Lannett Co., Inc., Eli Lilly and Co., Lincoln Laboratories, Inc., Malinckrodt, the S.E. Massengill Co., McNeilab, Inc., Merck & Co., Inc., Merrell Dow Pharmaceuticals, Inc., Premo Pharmaceutical Laboratories, Inc., previously known as Lemmon Co. of N.J., Inc., Rite Aid Corp., Rorer Group, Inc., Rowell Laboratories, Inc., Schering Corp., Solvay Pharmaceuticals, Inc., formerly known as Reid-Provident Laboratories, Inc., Stanley Drug Products, Inc., a division of Sperti Drug Corp., E.R. Squibb & Sons, Inc., the Upjohn Company, West-Ward, Inc., now known as Industrial Way Liquidating Corp., White Laboratories Corp., Defendants.
Angela SILVERI, Plaintiff,
v.
The ABBOTT LABORATORIES, American Pharmaceutical Co., Beecham Laboratories, Boehringer Ingelheim Pharmaceuticals, Inc., Boyle & Co. Pharmaceuticals, Burroughs-Wellcome & Co., Inc., Carnrick Laboratories, Inc., previously known as G.W. Carnrick Co., Inc., Chase Chemical Co., Chromalloy American Corp., Cooper Holdings, Inc., previously known as Cooper Laboratories, Dart Industries, Inc., previously known as Rexall Drug Co., Inc., the Dexter Corp., successor in interest of Invenex Laboratories, Emons Industries, Inc., Key Pharmaceuticals, Kremers-Urban Co., now known as Mequon Co., Lannett Co., Inc., Eli Lilly and Co., Lincoln Laboratories, Inc., Malinckrodt, the S.E. Massengill Co., McNeilab, Inc., Merck & Co., Inc., Merrell Dow Pharmaceuticals, Inc., Premo Pharmaceutical Laboratories, Inc., previously known as Lemmon Co. of N.J., Inc., Rite Aid Corp., Rorer Group, Inc., Rowell Laboratories, Inc., Schering Corp., Solvay Pharmaceuticals, Inc., formerly known as Reid-Provident Laboratories, Inc., Stanley Drug Products, Inc., a division of SPERTI Drug Corp., E.R. Squibb & Sons, Inc., the Upjohn Company, West-Ward, Inc., now known as Industrial Way Liquidating Corp., White Laboratories Corp., Defendants.
United States District Court, E.D. New York.
*553 *554 *555 Perry Weitz, Allan Zelikovic, Weitz & Luxenberg, P.C., New York City, for Ashley plaintiffs.
Leonard L. Finz, Stuart Finz, Gregory Green, Law Offices of Leonard L. Finz, P.C., New York City, for Angela Silveri.
*556 Robert D. Wilson, Jr., Patterson, Belknap, Webb & Tyler, New York City, for Abbott Laboratories and McNeilab, Inc.
Edward Patrick Reardon, Staten Island, N.Y., for American Pharmaceutical.
John Budlong, Stafford Frey Cooper & Stewart, Seattle, Wash., Richard J. O'Keefe, O'Keefe, Kline & McCaffrey, White Plains, N.Y., for Boehringer Ingelheim Pharmaceuticals.
Emmett J. Ganz, Law Offices of Emmett J. Ganz, Beverly Hills, Cal., Charles M. McCaghey, Ryan, Ryan, Johnson, Clear & DeLuca, Stamford, Conn., for Boyle & Co.
George I. Greene, Leslie McHugh, Lester Schwab Katz & Dwyer, New York City, for Burroughs-Wellcome & Co. and Merrell Dow Pharmaceuticals.
Margaret M. Johnson, Martin, Clearwater & Bell, New York City, for Carnrick Laboratories.
Carro, Spanbock, Kaster & Cuiffo, New York City, for Chase Chemical.
Vincent J. Aceste, Sally A. Zullo, David E. Worby, P.C., White Plains, N.Y., for Cooper Laboratories (sued herein as Cooper Holdings).
A. Edward Grashof, Sheila Annmarie Moeller, Winthrop, Stimson, Putnam & Roberts, New York City, for Dart Industries and Rexall Drug Co.
Richard Bakalor, Quirk & Bakalor, P.C., New York City, for Dexter Corp., successor in interest of Invenex Laboratories.
Eric D. Statman, Anderson, Kill, Olick & Oshinsky, New York City, for Emons Industries.
Henry R. Simon, White Plains, N.Y., for Key Pharmaceuticals and West-Ward, n/k/a Indust. Way Liquidating Corp.
Mark G. Lionetti, Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for Kremers-Urban Co. n/k/a Mequon Co.
Solin, Breindel & Berger, Albany, N.Y., for Lannett Co.
Russel H. Beatie, Jr., Charna L. Gerstenhaber, Kenneth King, Brown & Wood, New York City, for Eli Lilly and Co.
John Sullivan, Michael Yoeli, Gordon & Silber, P.C., New York City, for Lincoln Laboratories.
Gwen Pollack, Laurence V. Senn, Jr., Mudge Rose Guthrie Alexander & Ferdon, New York City, for Malinckrodt.
Theodore V.H. Mayer, Hughes Hubbard & Reed, New York City, for Merck & Co.
Edward S. Weltman, Schneck Weltman Hashmall & Mischel, New York City, for Premo Pharmaceuticals Laboratories and Chromalloy American Corp.
David P. Schaffer, Kelly, Tobias & Turner, New York City, for Rhone-Poulenc Rorer Pharmaceuticals (sued herein as Rorer Group).
John M. Byrne, Elizabeth MacEwen, McMahon, Martine & Merritt, New York City, for Rite Aid Corp.
John C. Maloney, Jr., Sheryl Schwartz, Pitney, Hardin, Kipp & Szuch, Morristown, N.J., for SmithKline Beecham Corp. (sued herein as Beecham Laboratories and S.E. Massengill Co.).
Peter L. Herb, Gladstein & Isaac, New York City, for Solvay Pharmaceuticals, successor in interest of Reid-Provident Laboratories, and Rowell Laboratories.
Marc S. Klein, William B. Korman, Sills Cummis Zuckerman Radin Tischman Epstein & Gross, New York City, for E.R. Squibb & Sons.
Dorothy A. Phillips, Rivkin, Radler & Kremer, Uniondale, N.Y., for Stanley Drug Products.
David M. Covey, Sedgwick, Detert, Moran & Arnold, June A. O'Hea, Jay P. Mayesh, William A. Rome, Stroock & Stroock & Lavan, New York City, for The Upjohn Co.
MEMORANDUM AND ORDER
Personal Jurisdiction
WEINSTEIN, District Judge:
*557
TABLE OF CONTENTS
I. INTRODUCTION ................................................................. 557
II. FACTS ........................................................................ 558
A. Background ................................................................ 558
B. Present Actions ........................................................... 559
C. Motions ................................................................... 559
III. NEW YORK SUBSTANTIVE LAW AND RULES AFFECTING SUBSTANTIVE
RIGHTS ....................................................................... 560
A. History of New York Products Liability Law and Mass Tort Law
Generally ................................................................ 560
B. New York DES Law ......................................................... 563
C. Constitutionality of New York DES Law .................................... 565
IV. CHOICE OF LAW ................................................................ 566
A. Erie Doctrine ............................................................ 566
B. New York Choice-of-Law Rules in Mass DES Torts ........................... 566
C. Constitutionality of New York Choice-of-Law Rules in Mass DES Torts ...... 568
V. PERSONAL JURISDICTION ........................................................ 569
A. New York Jurisdictional Statutes ......................................... 569
1. C.P.L.R. § 301 ......................................................... 569
2. C.P.L.R. § 302 ......................................................... 569
B. Constitutionality of New York Statutes .................................... 573
1. Current Due Process Doctrine and Problems Raised by Its Application
to Mass Torts ......................................................... 573
2. Case Law in Non-Mass Torts ............................................ 577
a. Pennoyer and Its Problems ......................................... 577
b. Pennoyer to International Shoe: The Emergency of Fairness
Inquiry ........................................................... 580
c. International Shoe: Sovereignty, Fairness and Nexus Requirements .. 582
3. Sovereignty and Fairness in Mass Torts ................................ 584
4. Due Process Standard for Mass DES Torts ............................... 587
VI. APPLICATION OF LAW TO FACTS .................................................. 589
A. Boehringer ................................................................ 589
1. Failure to State a Claim ............................................... 589
2. Personal Jurisdiction .................................................. 591
B. Boyle ..................................................................... 592
1. C.P.L.R. § 302(a)(3)(ii) ............................................... 592
2. Due Process ............................................................ 593
VII. CONCLUSION ................................................................... 594
I. INTRODUCTION
This diversity case presents a classic illustration of why traditional limits on personal jurisdiction must be modified for mass torts. The torts alleged here involve numerous claims of injury from exposure in utero to diethylstilbestrol (DES). DES was developed and tested in laboratories throughout the country and the world. Permission to use it was sought and obtained from the federal Food and Drug Administration by pharmaceutical companies scattered across the nation. Some companies conducted national advertising and a national corps of salespersons hawked the drug in doctors' offices in every part of the country. Discussions among medical specialists and word-of-mouth information traded among doctors and patients led to national acceptance of the drug as useful for the prevention of miscarriages. Even companies producing *558 exclusively for local markets relied on the nationally developed understanding and consensus about DES and used knowledge and chemicals from all parts of the United States and the world. Thousands of persons in hamlets and cities across the country are now claiming to have been adversely affected by exposure to the drug. In short, the technology, marketing, sociology, and possible ill effects of DES knew no state boundaries. The national nature of the resulting toxic tort litigation must be reflected in the law's treatment of jurisdictional issues.
Motions to dismiss for lack of jurisdiction raise the following questions: Do the complaints against the moving defendants state a claim under New York's substantive laws? Are those laws constitutional? Are New York's substantive laws applicable under New York's choice-of-law rules? Are those choice-of-law rules constitutional? Do New York's jurisdictional statutes provide for jurisdiction over a successor corporation licensed to do business in New York for causes of action relating to the activities of its predecessor corporation, which never sold DES in New York and was never present in New York? Does New York's long arm statute provide for jurisdiction over a manufacturing corporation which never sold DES in the New York market and was never present in New York? Are New York's jurisdictional statutes constitutional? In light of the specific characteristics and history of the moving defendants, and of all the parties and the suit, would requiring the defendants to litigate in New York be fair so that jurisdiction is not barred by the Constitution and should not be declined under a prudential theory akin to forum non conveniens? All must be answered "yes."
II. FACTS
A. Background
DES, a synthetic estrogen, was developed in the late 1930s. It was thought to be useful in treating symptoms of certain cancers and menopause, among other things. In 1941, twelve companies formed a committee to oversee submissions in support of a joint New Drug Application for DES to the Food and Drug Administration. On the basis of these submissions, the FDA approved DES for certain uses, not including the prevention of miscarriages.
Researchers were simultaneously discovering that miscarriages were often accompanied by low levels of natural estrogen. In theory, the administration of natural or synthetic estrogen would improve a woman's ability to carry the pregnancy to term. In 1947 and 1948 several of the twelve DES manufacturers sought and were granted permission by the FDA to market DES to prevent miscarriage and fetal death. By 1952 the FDA considered DES proven safe. Hundreds of additional manufacturers then entered the market. Millions of pregnant women ingested DES during the 1950s and 1960s.
In 1971, doctors in Boston concluded that DES was a teratogen responsible for the appearance of adenocarcinoma, a rare form of vaginal cancer, in eight young women who had been exposed to DES in the womb. The FDA soon thereafter disapproved the continued marketing of DES for pregnancy use. There is some evidence that doctors nonetheless continued to prescribe DES through the early 1970s.
Women exposed to DES in utero may develop adenosis, a pre-cancerous cell change which can be treated by cauterization or surgery. DES is said to cause a variety of other more serious disorders, including miscarriage, uterine deformities, ectopic pregnancy, and breast cancer. Male fetuses exposed to DES may be at risk of developing undescended testicles, sterility, and deformities. As persons exposed to DES in utero age, other medical problems may be linked to DES. There is also evidence that DES daughters pass on defects to their own female children. Whether permanent inheritable genetic damage will be spread more widely in future generations is uncertain.
DES was sold as a generic drug. It was produced in tablets of various dosages according to the same formula by all manufacturers and marketed nationally under a generic description. Pharmacists filled *559 prescriptions by using DES manufactured by different companies interchangeably. Each of the many manufacturers produced and sold DES for different periods between 1949 and 1971. Some of the companies that made and sold DES no longer exist.
Litigation concerning alleged DES-related injuries has occupied courts around the country since the mid-1970s. In New York state alone, more than 500 DES cases against scores of defendants are pending in state and federal courts. In January of this year, a joint special master/referee was appointed by this court and by New York Supreme Court Justice Ira Gammerman to coordinate settlement negotiations with respect to these cases. See In re DES Cases, 142 F.R.D. 58 (E.D.N.Y.1992).
B. Present Actions
In Ashley v. Abbott Laboratories, No. 91-3784, and Silveri v. Abbott Laboratories, No. 91-4986, plaintiffs claim injuries from their exposure (or their spouses' exposure) in utero to DES. Plaintiff Angela Silveri is a New York resident, as are approximately half of the Ashley plaintiffs. The remaining Ashley plaintiffs each reside in another state or a foreign country. All plaintiffs allege causes of action sounding in warranty, negligence and strict liability and seek compensatory and punitive damages. Defendants are companies that manufactured and distributed DES or are successors to such companies. Subject matter jurisdiction in each case is predicated on diversity of citizenship.
Defendant Boehringer Ingelheim Pharmaceuticals, Inc. ("Boehringer") has never produced or sold DES, but it is alleged to be responsible for Stayner Corporation, a company that did. Boehringer was incorporated in 1971. In 1979 Stayner was merged into Boehringer. Between 1949 and 1971 Stayner obtained its supply of DES from chemical companies located in California, Tennessee and Ohio, manufactured DES tablets at a plant in California and sold the tablets in California, Oregon, Washington and Montana; undoubtedly the California, Tennessee and Ohio plants obtained some of their supplies from other states. Available figures for the years 1949-56 indicated that Stayner's DES revenues averaged a little over $5,000 per year during that period. Affidavits from senior Stayner employees indicate that the company never was licensed to do business in New York, never maintained an office or agent in New York, never solicited business in New York and never shipped DES to New York. By contrast, Boehringer, a Delaware corporation with its principal place of business in Connecticut, has been authorized to do business in New York since its inception. Boehringer markets its products (which do not include DES) in all states and is licensed to do business in several other states besides New York.
Boyle & Co. ("Boyle") is a closely held California corporation. At oral argument, counsel for Boyle indicated that the company manufactured and sold DES between 1949 and 1960 in California and other states west of the Mississippi River. Sales of DES tablets peaked in 1950, when Boyle sold about 157,000 tablets in packages of 100 and 1,000. Total revenues from all company business reached their highest point in the late 1950s and are now minimal. Boyle claims never to have shipped DES to New York or sold it here. Employee affidavits attest that the company has never been licensed to do business in New York, never maintained an office or agents in New York and never advertised in New York.
C. Motions
Boehringer has moved to dismiss the complaints under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(2) for failure to state a claim and for lack of personal jurisdiction. Boyle joins in the motion to dismiss for lack of personal jurisdiction. With respect to Angela Silveri and the Ashley plaintiffs domiciled in New York, Boehringer's and Boyle's motions must be denied. As applied to the non-New York Ashley plaintiffs, defendants' motions will be addressed in a separate memorandum. Subsequent references to plaintiffs in this *560 memorandum will refer to the New York plaintiffs unless otherwise indicated.
On the theory that a court ought to first determine whether a party is properly present before considering substantive issues, the normal practice is to consider 12(b)(2) motions prior to 12(b)(6) motions. Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963) (en banc). Where, as here, a party seeking to dismiss for failure to state a claim is found to be properly present, the normal order may be inverted. The jurisdictional problems in these cases cannot be appreciated except against the backdrop of substantive New York DES law. That law is in turn affected by procedural rules burdens of proof, statutes of limitations and limits on remedies that are quasi-substantive in their effects on the outcome of litigation.
Accordingly, there is set out first in Part III A a brief history of New York personal injury law and the changes made within the last decade to meet the problems of mass torts, which are illustrated by reference to asbestos and DES law. In III B, the present law controlling DES, as developed by the New York Court of Appeals in Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338 (1989), and subsequent cases, is discussed. The constitutionality of the somewhat unique New York approach to DES cases is dealt with briefly in III C.
Part IV addresses choice-of-law issues. In IV A, cases requiring a federal court sitting in diversity to look to the choice-of-law rules of the forum state are cited. IV B describes the various choice-of-law principles applied in New York case law and demonstrates that, at least with respect to New York DES plaintiffs, the New York courts would apply New York law. The constitutionality of that choice is considered in IV C.
Part V confronts the most difficult of the problems raised by the defendants' motions personal jurisdiction. In V A, New York Civil Practice Law and Rules (C.P.L.R.) sections 301 and 302 are interpreted in the special context of a mass tort resulting from the national distribution by several hundred defendants of a toxic substance with relatively long periods of latency affecting an indeterminate number of plaintiffs, where some of the defendants were selling or "present" in New York and some were not. The constitutionality of the C.P.L.R. provisions as applied to such a mass tort is discussed in V B. Part V B 1 describes the constitutional law of jurisdiction developed for non-mass tort cases and the difficulty of applying it in an unmodified form to mass torts. Part V B 2 & 3 describes the development of current nonmass tort doctrine, its limitations in cases such as the one before the court, and its capacity to be modified to the needs of the present litigation and mass torts generally. Part V B 4 sets out the constitutional standard applicable to DES cases and perhaps other mass torts.
In Part VI A the facts pertaining to the motions of Boehringer are measured against the standards set out in the preceding parts. In VI B, the Boyle facts are analyzed.
III. NEW YORK SUBSTANTIVE LAW AND RULES AFFECTING SUBSTANTIVE RIGHTS
A. History of New York Products Liability Law and Mass Tort Law Generally
Despite undergoing several transformations, New York's tort law still oscillates within the poles established by Judge Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), and Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). MacPherson opened the frontier of modern negligence law by abolishing the requirement of privity between tortfeasor and plaintiff. Palsgraf then established the boundaries of the conceptual terrain by limiting defendants' liability to foreseeable classes of plaintiffs suffering foreseeable classes of harms. The principles of these cases were meant to serve as the basis for a system of liability that could give due consideration to the interests of injured plaintiffs, defendants, *561 the judicial system and the general public while remaining flexible enough to accommodate social change. Subsequent modifications in New York product liability law have relied on the same principles to effect the same goals in light of the massive socioeconomic and technological changes of this century.
The first major doctrinal development following Palsgraf did not occur until the 1970s, when New York's courts overhauled prevailing warranty theories of liability and replaced them with strict liability for defectively manufactured and designed products, as well as for products with inadequate warnings. See Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973) (recasting third party causes of action previously sounding in implied warranty as sounding in strict liability); see also Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 405 N.Y.S.2d 448, 376 N.E.2d 920 (1978) (improper warning); Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976) (design defects); Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275 (1975) (manufacturing defects). Quasisubstantive laws such as statutes of limitations were adapted concurrently with the transition to strict liability. See, e.g., Victorson, 37 N.Y.2d at 399-400, 373 N.Y.S.2d 39, 335 N.E.2d 275 (applying three-year statute of limitations to strict liability actions; overruling Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207 (1969)). Changes in common law were also accompanied by legislative action. See C.P.L.R. § 214-c(2) (1986) (time for commencing latent personal injury and property damage actions "computed from the date of discovery of the injury ... or from the date when ... such injury should have been discovered"); id. § 1411 (1975) (adopting pure comparative negligence); N.Y. General Obligation Law § 15-108(b) (1974) (limiting contribution suits against settling tortfeasors by non-settling, jointly liable tortfeasors); In re E. & S. Dists. Asbestos Litig., 772 F.Supp. 1380, 1391-93 (E. & S.D.N.Y.1991) (applying statutory changes).
While carving out a doctrine analytically distinct from negligence in a conscious attempt to adapt tort law to the development of an economy of mass marketed, mass produced consumer goods, see Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983); Codling, 32 N.Y.2d at 341, 345 N.Y.S.2d 461, 298 N.E.2d 622, modern cases and statutes operate within the parameters marked by Judge Cardozo even as they advance the cause of injured plaintiffs and seek to protect defendants against the unfair imposition of liability. See, e.g., Voss, 59 N.Y.2d at 107-10, 463 N.Y.S.2d 398, 450 N.E.2d 204 (manufacturer responsible only for injuries proximately caused by "unreasonably" dangerous product when used in intended ways). The "new" product liability law was of a piece with the "old" negligence and warranty law in another respect; all grew up in the shadow of the industrial revolution. The cases in which the law was being crafted typically involved individuals suing manufacturers and distributors for injuries sustained in industrial, automobile or household accidents. The courts were mainly concerned with addressing such cases in light of the increased distance between manufacturer and consumer that resulted from mass production and marketing.
The phenomenon of mass torts prompted the next wave of doctrinal innovation, which began in the late 1970s and continues today. Some of these mass torts for example, air crash and other disasters are really better termed "large torts": they involve an expansion of scale that can be accommodated with little conceptual change. The most difficult litigation issues in these cases pertain to joinder of parties to ensure efficient litigation and particularly whether to employ a federal or state class action device. See generally In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. 710, 802-11 (E. & S.D.N.Y.1991) (discussing advantage of class action device in multiple suits). True mass torts, by contrast, raise qualitatively different and more intractable problems. These cases typically involve the torts of a post-industrial age, *562 the so-called mass toxic torts, although not all toxic torts have required doctrinal innovation and some non-toxic torts have. See Hall v. E.I. Du Pont De Nemours & Co., 345 F.Supp. 353 (E.D.N.Y.1972) (adopting industry-wide liability for manufacturers of blasting caps injuring plaintiffs at different places and times); Snyder v. Hooker Chems. & Plastics Corp., 104 Misc.2d 735, 429 N.Y.S.2d 153 (Sup.Ct.1980) (denying class action certification for Love Canal litigation in light of limited number of plaintiffs and localized nature of alleged injuries).
Genuine mass torts possess some or all of the following features: (1) geographically widespread exposure to potentially harmful agents that (2) affects a large or indeterminate number of plaintiffs, (3) possibly over long time periods, even generations, (4) in different ways such that (5) there is difficulty in establishing a general theory of causation and (6) an inability to link a particular defendant's actions to a particular plaintiff's injuries, as well as (7) difficulty in determining the number of potentially responsible defendants and (8) in determining their relative culpability, if any, which often results in (9) multiple litigations that burden the courts and cause huge transactional costs, including heavy legal fees, and (10) which threatens the financial ability of many companies or of whole industries to respond to traditional damage awards.
Experience indicates that these features of mass torts conspire to hinder efficient judicial disposition. While in some instances legislative solutions have been proposed and adopted, see, e.g., 30 U.S.C. §§ 901-45 (1988) (Black Lung Benefits Act); 42 U.S.C. §§ 300aa-10 to 306aa-23 (1988) (National Vaccine Injury Compensation Program); 42 U.S.C. § 2210 (1988) (Price-Anderson Act), our political system has left primary responsibility with courts and state legislatures to establish practicable and just rules for compensating mass tort victims.
The litigation complexities raised by mass torts are legion. The place and manner of exposure to the alleged harm-producing agents are often impossible to determine for purposes of establishing a "locus" state. Very complex questions as to jurisdiction, choice of law, liability, causation and damage apportionment typically result. Often, as here, parallel cases are brought simultaneously in the federal and state courts of many states. There is jockeying among plaintiffs' attorneys for control and fees. Where the compensatory and punitive damages sought are greater than potential defendants' combined assets, a race to the civil and bankruptcy court-houses results. Even where there is no shortage of funds, litigation in multiple fora ultimately produces unfair and inefficient results: similarly situated plaintiffs obtain disparate remedies, state and federal courts across the country are clogged and costs become exceptionally high.
To begin to address these issues, the federal and state courts have bent traditional substantive rules of tort law through doctrinal innovations such as enterprise, concerted action, and market share liability. See, e.g., Hall v. E.I. Du Pont De Nemours & Co., 345 F.Supp. 353 (E.D.N.Y.1972) (industry-wide liability); Bichler v. Eli Lilly and Co., 55 N.Y.2d 571, 580-84, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982) (upholding use of concerted action theory in DES case where defendant did not object); Sindell v. Abbott Lab., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (market share liability), cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980). Likewise, it has forced them to confront and sometimes rely on new forms of expert testimony and epidemiological evidence. See, e.g., DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941 (3d Cir.1990) (discussing use of statistical evidence in Bendectin litigation). On occasion courts have had to establish and supervise nontraditional remedies, such as trusts for future claimants. See, e.g., In re "Agent Orange" Prod. Liab. Litig., 781 F.Supp. 902, 909-11 (E.D.N.Y.1991) (describing establishment and operation of programs to distribute settlement funds).
Existing procedural law can provide some assistance to courts confronting mass torts. In the federal courts, litigation can be consolidated by means of transfer of *563 venue under 28 U.S.C. sections 1404 and 1406 and by the doctrine of forum non conveniens. Under 28 U.S.C. § 1407, the judicial panel on multidistrict litigation can coordinate such consolidations. Necessary further innovations, however, including the establishment of alternative jurisdictional rules, generally have been slow in developing. While the need to fully and finally resolve interpleader actions has prompted statutory provisions for nationwide jurisdiction in those cases, see 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1701, at 487 (2d ed. 1986), similar provisions for mass torts, which raise similar considerations, have not been adopted. See generally Rowe, Jurisdictional and Transfer Proposals for Complex Litigation, 10 Rev. Litig. 325 (1991). For example, the proposed Court Reform and Access to Justice Act of 1988 and the Multiparty, Multiforum Jurisdiction Act of 1989 (the Kastenmeier Bill) would have provided for nationwide service of process in certain large-scale diversity actions. See generally Rowe & Sibley, Beyond Diversity: Federal Multiparty, Multiforum Jurisdiction, 135 U.Pa.L.Rev. 7 (1986); Erichson, Note, Nationwide Personal Jurisdiction in All Federal Question Cases: A New Rule 4, 64 N.Y.U.L.Rev. 1117, 1161-62 (1989) (citing proposals for jurisdiction in mass cases).
The states, because they do not form a unitary system, have more difficulty coordinating the efficient resolution of mass torts. Joint federal-state cooperation that might alleviate some problems is still in its infancy. See, e.g., In re DES Cases, 142 F.R.D. 58 (E.D.N.Y.1992) (joint appointment of special master/referee); American Law Institute, Complex Litigation Project, Tentative Draft No. 2, Chs. 3 & 5 (April 6, 1990) (proposed statute for federal-state and state-federal consolidations). There are to date only proposals for coordinating efforts among the states. See American Law Institute, Complex Litigation Project, Tentative Draft No. 3, Ch. 4 (March 31, 1992) (suggesting procedures for consolidating complex litigation among state courts). Thus, the states generally are required to improvise in order to cope with the realities of modern mass torts.
The New York courts' initial response to mass torts understandably was marked by caution. See, e.g., Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981) (declining to interpret New York tort statute of limitations as running from time of "discovery" rather than time of "exposure" for latent injuries), cert. denied, 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982); Rosenfeld v. A.H. Robins Co., 63 A.D.2d 11, 407 N.Y.S.2d 196 (declining to adopt New York class action device in Dalkon Shield litigation), appeal dismissed, 46 N.Y.2d 731, 413 N.Y.S.2d 374, 385 N.E.2d 1301 (1978). In the best tradition of the states as laboratories for experimentation in social and economic policy, however, see New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting), the state legislature, prompted in part by judicial frustration, has instituted important modifications in quasi-substantive law over the last decade, most notably in the area of statutes of limitations. See C.P.L.R. § 214-b (statute of limitations for actions by veterans for exposure to Agent Orange to run from date of discovery of injury rather than date of exposure); Id. § 214-c(2) and Historical and Revision Notes (establishing "discovery" rule for toxic torts and allowing one-year revival for previously barred claims). This legislation has in turn prompted the courts to take the bolder steps in dealing with DES mass tort litigation described below. Further innovations have been achieved through cooperation between the New York federal and state courts in handling asbestos cases. See In re E. & S. Dists. Asbestos Litig., 772 F.Supp. 1380, 1385-86 (E. & S.D.N.Y.1991).
B. New York DES Law
In 1982, the New York Court of Appeals first confronted the issue of how to apportion liability in DES cases where plaintiffs cannot identify which manufacturer's product caused their injuries. In Bichler v. Eli Lilly and Co.,