dissent">Weiss, J.

(dissenting). Of the several arguments initially presented in this appeal, we have been left with one issue of major dimension which appears to be of first impression for this court. Simply stated, the issue is whether liability based on the alleged use of a product during pregnancy can be extended to future generations of plaintiffs, not yet conceived, who themselves never had contact with the product. The majority, in what appears to me to be an example of judicial overreaching, has turned aside the established rule that New York does not recognize preconception tort liability under common-law negligence principles (see, Albala v City of New York, 54 NY2d 269), then extracted selective portions from two cases grounded in strict products liability (Bichler v Lilly & Co., 55 NY2d 571; Hymowitz v Lilly & Co., 73 NY2d 487, cert denied — US, — , 110 S Ct 350), added the enactment of the revival statute creating a one-year "window” for actions for injuries allegedly caused by five toxic substances, including the drug diethylstilbestrol (hereinafter DES), all of which were previously barred under the date-of-injury rule (see, L 1986, ch 682, § 4), and somehow arrived at the conclusion that plaintiff Karen Enright (hereinafter plaintiff), who never had contact with DES, has a cause of action in strict products liability because her grandmother allegedly ingested the drug while pregnant with plaintiff’s mother. Put another way, plaintiff is a third-generation plaintiff alleging injuries resulting from her grandmother’s ingestion of DES. I find no authority whatever in this State to support a cause of action for preconception tort in a third-generation context for strict products liability. Because I believe the Justices of this court should not assume a legislative mode to fashion a new remedy for this alleged wrong, I respectfully dissent.

In Albala v City of New York (supra),the Court of Appeals held that a tort committed against the mother of a child not yet conceived does not give rise to a cause of action in favor of *72that child for any injuries the child may suffer during its period of gestation attributable to the mother’s injury before conceiving the child. In its refusal to extend a hospital’s liability for medical malpractice in perforating the uterus during the mother’s abortion so as to permit recovery by a child conceived four years after the alleged malpractice, the court held that recognition of such a cause of action under those circumstances would require the extension of traditional tort concepts beyond manageable bounds. Albalaremains the law in New York with respect to cases involving common-law negligence, including medical malpractice.1

In Bichler v Lilly & Co. (supra) a "DES daughter”, i.e., one whose mother ingested DES during pregnancy, recovered damages for injuries she developed 17 years after her birth. In its affirmance, the Court of Appeals held that the trial court’s instructions to the jury concerning the manufacturer’s liability on a concerted action theory for injuries caused became the governing law of the case, no exception having been taken thereto, and that, in the light of those instructions, there was sufficient evidence to support the jury’s verdict.2 The prevailing plaintiff had directly come in contact with DES when the drug was ingested by her mother during pregnancy.

After the Bichlerdecision, the Fourth Department affirmed a decision of Supreme Court in Catherwood v American Sterilizer Co. (126 AD2d 980, appeal dismissed 70 NY2d 782), in which a mother was exposed to ethylene oxide prior to conception of a child subsequently born with chromosomal damage. In denying liability for genetic injury allegedly caused to the child, Supreme Court had found that the "policy need for limitation of liability in exposure and ingestion cases” called for the same result as in DES cases (Catherwood v American Sterilizer Co., 130 Misc 2d 872, 875, affd 126 AD2d 980, appeal dismissed 70 NY2d 782).

*73Plaintiff has placed great emphasis upon certain of the language used by the Court of Appeals in Hymowitz v Lilly & Co. (73 NY2d 487, supra). While it cannot be gainsaid that the court recognized the Draconian effects DES had upon those who used the drug and of the need for a remedy for those injuries (supra, at 507), the decision does not, as plaintiff would have us believe, either create a new cause of action in favor of third-generation DES plaintiffs or extend existing principles of strict products liability to such a class who themselves never came in contact with the drug. The Hymowitzcase decided two distinctly stated issues, and no more than those issues, namely: (1) the market-share theory of apportionment of liability among all manufacturers of DES is to be employed in New York, and (2) the revival statute, as it pertains to DES cases, has a rational basis and is constitutional. The issue of third-generation plaintiffs is not a part of that case and can have no role in this case. Indeed, the Court of Appeals explicitly stated that the Legislature’s attention was specifically drawn to DES and that any change in the exposure rules was the role of the Legislature (supra, at 514, citing Fleishman v Lilly & Co., 62 NY2d 888, cert denied 469 US 1192), and further, that the "Legislature acted within its broad range of discretion in enacting the law” (supra, at 515). The case of Fleishman v Lilly & Co. (supra) involved claims that cancer developed years after the use of DES, one by a direct user of the drug and the other by an in útero plaintiff exposed when her mother ingested DES. In affirming dismissal of both cases as time barred, the Court of Appeals refused to extend the Statute of Limitations for medical malpractice claims, stating that "[a]ny departure from the policies underlying these well-established precedents is a matter for the Legislature and not the courts” (supra, 62 NY2d, at 890).

In its enactment of the toxic tort revival statute, the Legislature first defined "exposure” as any "direct or indirect exposure by absorption, contact, ingestion, inhalation or injection” (CPLR 214-c [1]). The operative effect of the statute is to revive every action for personal injury, injury to property or death "caused by the latent effects of exposure to [diethylstilbestrol] upon or within the body” which is time barred as of the effective date of the act and permit an action to be commenced within one year from the effective date of the act (CPLR 214-c [2], [3], [4] [emphasis supplied]). In Besser v Squibb & Sons (75 NY2d 847, affg on opn below 146 AD2d 107), the Court of Appeals affirmed on the opinion of Justice *74Sullivan of the First Department.3 The case speaks to exposure to DES upon or within the body. I believe the statute and Besser v Squibb & Sons (supra) instruct that some direct contact between a plaintiff and DES must exist as a prerequisite to a cause of action under principles of strict products liability.

I perceive that defendants owed a duty to those who used DES, including those persons in útero at the time of such use. I fail to recognize a duty to generations not yet conceived who themselves would never come into contact with the drug. "While a court might impose a duty where none existed before, extreme care must always be exercised” in so doing (Vogel v West Mountain Corp., 97 AD2d 46, 49; see, Pulka v Edelman, 40 NY2d 781, 786). "While the temptation is always great to provide a form of relief to one who has suffered, it is well established that the law cannot provide a remedy for every injury incurred” (Albala v City of New York, 54 NY2d 269, 274, supra, citing Howard v Lecher, 42 NY2d 109). The tragic catastrophe engulfing plaintiff’s life should neither tempt nor encourage Judges to embrace a personal choice form of rationalization, "results-first, premises-to-follow” (Bork, The Tempting of America, at 264 [1990]). I find no indication, direct or by inference, demonstrating a legislative intent to extend the provisions of the statute to generations of plaintiffs who were unconceived at the time a forbearer was exposed to one of the five toxic substances in the statute.

For these reasons, I would affirm Supreme Court’s order.

Mikoll, Yesawich, Jr., and Harvey, JJ., concur with Casey, J. P.; Weiss, J., dissents and votes to affirm in an opinion.

Order modified, on the law, with costs to plaintiffs, by reversing so much thereof as granted defendants’ motions dismissing the third cause of action in the complaint; said motions denied and, as so modified, affirmed.

. I disagree with plaintiffs contention that the footnote on page 274 in Albalacan be seen as an unequivocal endorsement of preconception tort litigation in strict products liability cases. The three cases cited in the footnote are all foreign cases, two of which were found to be inapposite, and any reliance on the third held to be misplaced (Albala v City of New York, 54 NY2d 269, 274, n).

. "Concerted action liability rests upon the principle that '[a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him’ ” (Bichler v Lilly & Co., 55 NY2d 571, 580, quoting Prosser, Torts § 46, at 292 [4th ed]).

. In Besser v Squibb & Sons (75 NY2d 847, affg 146 AD2d 107), the plaintiffs mother, a Pennsylvania resident, ingested DES 33 years earlier while she was pregnant with the plaintiff who became ill with cervical cancer at age 20 while residing in New Jersey. The issue in Besser was whether the toxic tort revival statute overcame the "borrowing statute” (CPLR 202) to permit the plaintiff who had no contacts with this State, save for maintaining residence here prior to commencing suit, to maintain suit against the drug manufacturer.

Citation profile

How this case has been treated — in progress