Flanagan v. Abbott Laboratories & Co.

Order and judgment (one paper), Supreme Court, New York County (Ira Gammerman, J.), entered August 30, 1991, which granted defendants’ motion to dismiss all claims raised by the infant plaintiff and all claims derivative thereto, including all claims for the costs of raising and caring for the infant plaintiff, unanimously affirmed, without costs. 354 The claims of the second generation victims of the drug DES for the costs of raising their prematurely born children, the third generation plaintiffs, were properly dismissed. We agree with the IAS Court that plaintiffs’ "cost of raising” claims are derivative of the second generation claims, and therefore cannot be maintained (see, O’Hearn v O’Hearn, 55 AD2d 766, 768), in view of the holding in Enright v Eli Lilly & Co. (77 NY2d 377, cert denied — US —, 112 S Ct 197) rejecting second generation claims in large part upon the policy ground of confining liability within manageable limits. The same policy considerations render plaintiffs’ reliance on Becker v Schwartz (46 NY2d 401) unavailing. Unlike the first generation parents in Becker, the second generation here did not have direct contact with defendant manufacturers or any physician at the time the drug was used in 1953, nor did they rely on any advice or warnings given by the manufacturers, and thus it cannot be said that their rights are separate and distinct, as opposed to derived, from those of their children. Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Asch, JJ.