Sorrells v. Eli Lilly and Company, 737 F. Supp. 678 (D.D.C. 1990)

Aaron M. Levine, Brandon J. Levine, Aaron M. Levine & Associates, Washington, D.C., for plaintiff.

James A. Hourihan, Hogan & Hartson, Washington, D.C., Marshall Simonds, P.C., Loretta M. Smith, Goodwin, Procter & Hoar, Boston, Mass., for defendant.

REVERCOMB, District Judge.

Plaintiff, Susan Sorrells, claims that she and her infant daughter Shanna were injured due to her mother's ingestion of the drug diethylstilbestrol ("DES") in 1951-1952 when she was pregnant with Susan. Susan's daughter, Shanna, was not exposed to DES in any way, but claims that her grandmother's use of DES affected her mother's ability to carry her to term, thus causing Shanna's profound hearing loss and other injuries. At bar is defendant's motion to dismiss all of Shanna's individual claims of negligence and strict liability on the grounds that Lilly owed no foreseeable duty to Shanna and plaintiff's motion for certification of the issue to the Maryland Court of Appeals.^[1]

The Court DENIES plaintiff's motion for certification. Plaintiff picked the instant forum, knowing full well of the legal issues the case presented and "is in a particularly poor position to seek certification." Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C. Cir.1988). The fact that defendant has removed *679 similar cases in the past is unpersuasive.

Defendant's motion to dismiss is GRANTED. The law of Maryland at this time does not extend defendant's duty to the unborn granddaughter of a mother who ingested DES. Renee L. Welan v. Eli Lilly and Company, Civil Action No. 87-2620, Order dated July 1, 1988; see also Jacques v. First National Bank of Maryland, 307 Md. 527, 515 A.2d 756 (1986). Shanna Sorrell's claims are dismissed without prejudice.

A Motions/Settlement Conference/Status Hearing will be held on August 24, 1990 at 9:30 a.m.

[1] At oral argument, plaintiff withdrew her motion for partial summary judgment.