Master New York’s high court refused to recognize a third-generation (preconception) tort claim by a DES granddaughter, limiting liability to those directly exposed in utero. with this comprehensive case brief.
Enright v. Eli Lilly & Co. sits at the intersection of products liability and torts’ duty doctrine, testing how far courts will extend liability for injuries cascading across generations. The case arises out of the notorious history of diethylstilbestrol (DES), a synthetic estrogen prescribed to pregnant women from the 1940s through the 1960s, later linked to cancers, reproductive tract anomalies, and pregnancy complications in the daughters of those women. Enright asks whether the law should recognize a cause of action not just for the second generation (the “DES daughters” exposed in utero), but also for a third generation child whose injuries stem from her mother’s DES-related reproductive anomalies.
The New York Court of Appeals had already made two landmark contributions to DES jurisprudence: it permitted recovery for DES daughters under relaxed identification principles via market-share liability in Hymowitz v. Eli Lilly & Co., and it had previously refused preconception tort claims in Albala v. City of New York. Enright reconciles these strands, clarifying that while the law is willing to adapt proof rules for uniquely pervasive harmful products, it will not expand duty indefinitely to persons not yet conceived at the time of the alleged tortious conduct. As such, Enright is a foundational authority on the limits of duty and the policy checks on foreseeability in generational injury cases.
77 N.Y.2d 377, 568 N.Y.S.2d 550, 570 N.E.2d 198 (N.Y. 1991)
The infant plaintiff was born with severe injuries, including complications associated with extreme prematurity and consequent disabilities. Her mother (the second-generation plaintiff) had been exposed to DES in utero decades earlier because the grandmother was prescribed DES during pregnancy. As a result of that in utero exposure, the mother developed well-documented DES-related reproductive tract abnormalities (e.g., cervical and uterine malformations) that compromised her ability to carry a pregnancy to term. When the mother later became pregnant with the infant plaintiff, those abnormalities allegedly caused premature labor and the infant’s resulting injuries. Plaintiffs sued multiple DES manufacturers, including Eli Lilly, alleging negligence, strict products liability, and breach of warranty, and invoked the market-share liability framework recognized in Hymowitz to address the inability to identify the precise manufacturer of the DES ingested by the grandmother. Defendants moved to dismiss the infant plaintiff’s claim, arguing New York does not recognize a child’s cause of action for injuries where the alleged tortious conduct predated the child’s conception and the child herself was never directly exposed to the product.
Does New York recognize a third-generation (preconception) tort claim by a child whose injuries are alleged to result from her mother’s in utero exposure to DES caused by the grandmother’s ingestion of the drug decades earlier?
In New York, a defendant generally owes no duty of care to individuals not yet conceived at the time of the alleged negligent conduct; thus, preconception tort claims by a later-born child are not cognizable absent legislative authorization. While New York recognizes market-share liability for DES daughters directly exposed in utero (Hymowitz v. Eli Lilly & Co.), that doctrine does not create a duty where none exists and does not extend to third-generation claims.
No. The Court of Appeals held that the infant plaintiff’s third-generation claim is not cognizable as a matter of New York law. Although the mother may pursue claims for her own DES-related injuries, the child’s claim for injuries allegedly resulting from her mother’s in utero exposure is barred because New York does not recognize preconception tort claims by a later-born child.
The Court grounded its decision in duty analysis and policy. It reaffirmed Albala v. City of New York, which declined to recognize a child’s claim where the negligent act occurred before the child’s conception. The Court emphasized that foreseeability of harm, standing alone, does not establish duty; duty is a legal policy judgment about the scope of persons to whom obligations are owed. Extending duty to unconceived persons would, in the Court’s view, invite expansive, indeterminate liability stretching into the future, complicate causation and proof decades after the alleged wrongdoing, and burden courts and parties with near-limitless exposure. The Court rejected arguments that DES presented a unique context warranting an exception. While acknowledging the scientific literature documenting DES daughters’ injuries, and while retaining Hymowitz’s market-share framework for claims by those directly exposed, the Court clarified that Hymowitz addressed proof problems (identifying which manufacturer made the harmful product) and did not expand the duty of care to a new class of plaintiffs. Market-share liability is a remedial device layered atop an otherwise valid cause of action; it cannot manufacture duty where the substantive law recognizes none. The Court also distinguished claims by a fetus directly exposed to a drug during gestation (which are generally cognizable) from claims by a later-conceived child whose injuries derive from a parent’s earlier in utero exposure. In the former scenario, the negligent act and exposure coincide with an identifiable plaintiff; in the latter, the plaintiff did not exist at the time of the conduct, creating a qualitatively different policy problem. The Court concluded that any change to recognize preconception claims is better left to the Legislature, which can calibrate policy, proof standards, and limitations across a broad range of contexts.
Enright defines the outer boundary of DES liability in New York: it preserves claims by DES daughters while rejecting third-generation claims by DES granddaughters. For law students, the case is a touchstone on the duty/foreseeability divide, demonstrating how courts use duty as a policy lever to contain potentially limitless liability despite scientific foreseeability. It also clarifies the relationship between substantive duty rules and procedural/proof doctrines like market-share liability—showing that evidentiary innovations cannot expand the class of rightful plaintiffs. Beyond DES, Enright is frequently cited in preconception tort cases and in debates over whether tort law should redress harms to persons not yet in existence when the defendant acted. It illustrates judicial institutional competence concerns and deference to legislatures in areas with complex social, scientific, and economic ramifications.
A preconception tort is a claim by a child alleging injury caused by negligent conduct that occurred before the child’s conception. Enright holds that New York does not recognize such claims: defendants owe no duty to individuals not yet conceived at the time of the conduct. The case therefore bars a DES granddaughter’s claim deriving from her mother’s in utero exposure.
Hymowitz created a market-share approach to apportion liability among DES manufacturers when the plaintiff (a DES daughter) cannot identify the specific producer. Enright limits Hymowitz by clarifying that market-share liability presupposes a valid cause of action; it cannot create duty where none exists. Because New York recognizes no duty to third-generation plaintiffs, Hymowitz does not apply to DES granddaughters’ claims.
Yes. New York generally allows claims by children directly exposed in utero to tortious conduct during their gestation, because the negligent act and the identifiable plaintiff coexist in time. Enright’s bar applies where the negligent act predates conception and the plaintiff’s injuries are derivative of a parent’s earlier exposure.
No. Enright preserves the mother’s (DES daughter’s) causes of action for her own injuries (e.g., reproductive tract abnormalities, pregnancy complications), along with any permissible derivative claims by her spouse. It solely rejects the separate, independent claim by the later-born child as a preconception tort.
Some jurisdictions have been more receptive to preconception torts, recognizing a duty in limited contexts; others align with New York’s restraint. Enright reflects New York’s policy choice to leave recognition of such claims to the legislature, highlighting a jurisdictional split law students should note when comparing state tort doctrines.
Enright draws a firm line around the scope of duty in generational injury litigation: while courts may innovate to solve DES-specific proof problems, they will not extend product liability to persons not yet conceived at the time of the allegedly tortious act. In doing so, the Court of Appeals balances scientific foreseeability against administrability and fairness, signaling that not all foreseeable harms are legally cognizable.
For students and practitioners, the case underscores how duty analysis operates as a policy gatekeeper in tort law and how remedies like market-share liability interact with, but cannot expand, substantive rights. Enright remains a leading case on preconception torts and a critical companion to Hymowitz in understanding the contours of DES liability in New York.