63 Ohio St. 3d 756, 591 N.E.2d 696 (1992)
The United States District Court for the Northern District of Ohio certified a question to the Ohio Supreme Court.1
The case was brought by Charles Grover against Eli Lilly & Co.2
DES was prescribed to pregnant women during the 1940s, 1950s and 1960s to prevent miscarriage.3 The FDA banned its use by pregnant women in 1971 after medical studies discovered that female children exposed to the drug in utero had a high incidence of a rare type of vaginal cancer.4
June Rose ingested DES during her pregnancy in 1952 and 1953.5 She gave birth to Candace Grover on March 30, 1953.6 Candace Grover was exposed to DES as a fetus.7
Candace Grover later gave birth prematurely to Charles Grover, who was born with cerebral palsy.8 Petitioners maintain that Candace was born with an incompetent cervix as a result of her mother’s ingestion of DES.9 Charles Grover claims that his mother’s DES-induced injuries caused his premature birth and resulting injuries.10
The facts require assuming that Charles Grover can prove his injuries were proximately caused by his mother’s exposure to DES.11 The case involves the scope of liability for the manufacture of a prescription drug with alleged side effects on the original patient’s female fetus and subsequent generations.12
Whether Ohio recognizes a cause of action on behalf of a child born prematurely, and with severe birth defects, if it can be established that such injuries were proximately caused by defects in the child’s mother’s reproductive system, those defects in turn being proximately caused by the child’s grandmother ingesting a defective drug (DES) during her pregnancy with the child’s mother?13
A manufacturer of prescription drugs has a duty to warn physicians of risks that the company knew or should have known through ordinary care.14 An actor is not liable for every harm that may result from his actions.15 The existence of a legal duty depends on whether the risk to the particular plaintiff is within the actor's range of apprehension as explained in Palsgraf v. Long Island RR. Co.16 A pharmaceutical company's liability for the distribution or manufacture of a defective prescription drug does not extend to persons who were never exposed to the drug, either directly or in utero.17
No. The facts show that Charles Grover was never exposed to DES either directly or in utero.18 His alleged injuries occurred more than twenty-eight years after the ingestion of the drug by his grandmother.19 The pharmaceutical companies' conduct must be evaluated based on whether they knew or should have known of a particular risk through the exercise of ordinary care at the time the drug was prescribed.20 Knowledge of a risk to one class of plaintiffs, the DES daughters, does not necessarily extend an actor's liability to every potential plaintiff such as the DES grandchildren.21
Because of the remoteness in time and causation, Charles Grover does not have an independent cause of action.22
The Ohio Supreme Court answered the certified question in the negative and held that Ohio does not recognize such a cause of action.23
Related opinions on this issue
Joined by Sweeney And Douglas, Jj.
Justice Resnick dissented from the result reached by the majority.24 She argued that there is no sound basis in law or public policy for holding that there is no duty owed to persons in Charles Grover's position.25 Pharmaceutical companies should have known the dangers of DES based on studies from the 1930s and 1940s showing reproductive system defects in animal fetuses exposed to DES.26 Resnick emphasized that DES grandchildren were a foreseeable group of plaintiffs within the range of apprehension under Palsgraf.27
She rejected the majority's blanket no-duty rule and public policy concerns about rippling effects.28 The petitioners still bear the burden of proving proximate cause and litigation would not open the floodgates beyond Charles Grover's generation.29 Resnick would conclude that individuals such as Charles Grover properly have a cause of action for their injuries.30