Summers v. Abbot Laboratories

Products Liability

New York Law Journal


Judge Eric Vitaliano

Quebec law governs Summers' products liability suit asserting liability of Abbott Laboratories, Eli Lilly and other drug makers for injuries sustained due to in utero exposure to diethylstilbestrol (DES). Abbot and others joined Lilly's motion for summary judgment on the ground that Summers could not identify the maker of the DES taken by her mother, as required by Quebec law. After de novo review, district court adopted a magistrate judge's recommendation that the defendant drug makers be granted summary judgment dismissing Summers' claims. Distinguishing an Ontario ruling in Gariepy v. Shell Oil, district court rejected Summers' challenge to the magistrate judge's conclusion that Quebec courts do not apply a market share theory of recovery, nor did the circumstances warrant application of New York law to determine the sufficiency of Summers' claims. Summers' claims hinged on the sufficiency of the Kardos affidavit. Beyond an inadmissible statement attributed to Summers' mother, the Kardos affidavit provided the court with no basis to determine if Kardos—or Summers' mother—took the same medication, let alone whether it was made by the same company.

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