On multiple occasions, the Appellate Division has ruled that only a DES plaintiff's mother or her mother's physician or pharmacy "can possibly have any available extant information bearing on [this] issue." Rowe v.Eli Lilly & Co., 656 N.Y.S.2d 858, 858 (N.Y. App. Div. 1st Dep't 1997); see also Brenkman v.Eli Lilly & Co., 654 N.Y.S.2d 139 (N.Y. App. Div. 1st Dep't 2001). Despite the complete absence of admissible particulars in the Kardos affidavit, plaintiff advances two arguments as to why the evidence raises a genuine issue of material fact: (1) Kardos asserts that, in Canada in the 1950s, only Lilly "produced" the drug taken by plaintiff's mother, (Opposition at 7-8); and (2) the affidavit provides circumstantial evidence regarding the size and color of the pills plaintiff's mother ingested, (Objections at 4-5).
On multiple occasions, the Appellate Division has ruled that only a DES plaintiff's mother or her mother's physician or pharmacy "can possibly have any available extant information bearing on [this] issue." Rowe v.Eli Lilly & Co., 656 N.Y.S.2d 858, 858 (N.Y. App. Div. 1st Dep't 1997); see also Brenkman v.Eli Lilly & Co., 654 N.Y.S.2d 139 (N.Y. App. Div. 1st Dep't 2001). Despite the complete absence of admissible particulars in the Kardos affidavit, plaintiff advances two arguments as to why the evidence raises a genuine issue of material fact: (1) Kardos asserts that, in Canada in the 1950s, only Lilly "produced" the drug taken by plaintiff's mother, (Opposition at 7-8); and (2) the affidavit provides circumstantial evidence regarding the size and color of the pills plaintiff's mother ingested, (Objections at 4-5).
Supreme Court properly determined that Connecticut law does not recognize non-identification theories of liability in DES litigation and properly granted those parts of defendants' motion and cross motions seeking to dismiss the complaint insofar as Therrien asserts those theories of liability ( see, Brenckman v. Lilly Co., 237 A.D.2d 126). In addition, the court denied those parts of defendants' motion and cross motions with respect to non-identification theories of liability asserted by the Massachusetts plaintiffs on the ground that the law in Massachusetts concerning the viability of those theories of liability remains unsettled.
The actions were properly dismissed on the ground that plaintiffs, out-of-State residents, concede that their exposure to DES occurred in States that do not recognize non-identification theories of liability in products liability cases such as this and that they cannot identify specifically the manufacturers or suppliers of the DES that allegedly caused their injuries ( Brenckman v. Eli Lilly Co., 237 A.D.2d 126 citing Godfrey v Eli Lilly Co., 223 A.D.2d 427, lv denied 88 N.Y.2d 801). Plaintiffs' arguments that the motion court should have given them an opportunity to conduct disclosure, or at least conditioned dismissal upon defendants' waiver of personal jurisdiction and Statute of Limitations defenses, are improperly raised for the first time on appeal, and we decline to consider them.