The issue is filed on the supreme court for an appeal in the matter whether the infant who was born with birth injuries, has a reason of action against the manufacturers of certain drug which was allegedly ingested by infant’s grandmother while pregnant with infant’s mother and allegedly caused certain physical abnormalities in the mother which caused the physical disabilities with the infant as well. The court answered the issue in the negative and dismissed all reasons of action seeking to recover damages for the infant’s birth injuries.
The complaint asserts that the infant mother was exposed to the said certain drug when inside the uterus with the direction of a physician. A New York Injur Lawyer said it is further alleged that due to the exposure the infant mother developed some anatomical abnormalities and deformities in her reproductive system which subsequently prevented her from carrying a baby to full term. The infant mother consequently gave birth to the complainant infant. It is further alleged that infant was born prematurely due to her mother’s abnormalities developed as a result of exposure to certain drug and that premature birth caused the infant to develop severe disabilities which will affect her for her entire life.
The parents of the infant initiated the action individually and on behalf of the infant against various manufacturers of the alleged drug. The action asserts negligence, strict product liability, breach of warranty and fraud. Damages are sought for physical and emotional injuries sustained by the mother and physical damages, pain and suffering sustained by the infant. The father asserts a derivative reason of action based upon the inability to have a healthy natural child. The complaint also claimed that if it cannot be proven that the accused manufactured the drug ingested by the infant’s grandmother, recovery would be sought on the basis of alternative enterprise and/or market share liability.
After the issue was joined, the accused parties moved to request for decision without trial and claims that since the state does not recognize preconception tort liability, all claims based upon the infant’s birth injuries must be dismissed and no recovery could be awarded to the parents for damages based upon emotional distress resulting from the birth of an impaired child. They also request that the failure to identify the manufacturer of the drug ingested by infant’s grandmother required dismissal of all claims and that the complainant’s claims were time barred since the revival law under which they were brought is unauthorized.
A Bronx Personal Injury Lawyer said the mother contends that based upon the foregoing discussion, her strict products liability reason of action should be reinstated. Relying upon previous court’s case decisions, the accused parties contend that the state does not recognize preconception strict products liability. It was held in previous cases that a child who was born with chromosomal damage, allegedly due to her mother’s exposure to a toxic substance during the course of employment and prior to conception, had no reason of action. Consequently, the court concluded that although there may be no need for limitation on liability in most strict products liability cases, such a need exists in exposure and ingestion cases, relying largely upon the policy considerations supporting the longstanding Law of Limitations accrual rule which used the date of the injury and not the date of discovery.
The legislature also displayed considerable flexibility in allowing remedy to the allege drug victims. In addition, the Legislature enacted a revival decree which opened a one-year window for actions of injuries caused by allege drug and four other toxic substances that were previously barred under the old date-of-injury rule. A Brooklyn Personal Injury Lawyer said since the infant and other similarly situated infants already had the benefit of the tolling provisions, the relevance to the case of the Legislature’s enactment of the toxic tort law including the revival provision lies in the clear manifestation of deep concern for those injured by toxic substances in general.
Undergoing a prenatal checkup is crucial both in the health of the mother and the baby. Any problem with regard to the well-being of both the mother and the baby can be addressed early on. Doctors and medicines are there to make sure that the baby will come out safe and healthy, but if the opposite happens, skilled lawyers are always ready to serve you in the offices of Stephen Bilkis and Associates. In addition, our team of NYC Injury Attorneys can offer excellent legal defense.