Opposition Brief — Rexall Drug Co. v. Tigue

5) Supreme Court, U.S. 7

No. 89-204 FILED .

| S&P 29 88

IN THE ‘,

Supreme Court of the *Wnit n° St F, SPANIOL, JR.

OctroBer TERM, 1989 aphid

E.R. SQUIBB & SONS, INC.,

Petitioner,

— against —

MINDY HYMOWITZ and ROBERT ABRAMS,

ATTORNEY GENERAL OF THE STATE OF NEW YORK,

Respondents.

(For Continuation of Caption See Inside Cover)

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

BRIEF OF RESPONDENT, ROBERT ABRAMS,

ATTORNEY GENERAL OF THE STATE

OF NEW YORK IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

RoBERT ABRAMS

Attorney General of the

State of New York

Respondent

120 Broadway

New York, New York 10271

(212) 341-2025

QO. Perer SHERWOOD

Solicitor General

LAWRENCE S. KAHN

Deputy Solicitor General

ANDREA GREEN

Assistant Attorney General

[Counsel of Record}

Of Counsel

E.R. SQUIBB & SONS, INC.,

Petitioner,

' — against —

ELIZABETH TIGUE, ET AL., —

Respondents.

E.R. SQUIBB & SONS, INC.,

Petitioner,

— against —

JANE DOLAN and ROBERT ABRAMS,

ATTORNEY GENERAL OF THE STATE OF NEW YORK,

Respondents.

QUESTION PRESENTED

Does a state statute which revives for one year otherwise time-

barred toxic tort claims satisfy the requirements of due process

and equal protection under the United States Constitution?

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TABLE OF CONTENTS

RE Oe rere ere eee

soa a eine wh ewe eee we

i ee ie ack ue

B. The Toxic Torts Act — Chapter 682 of the

G0 SO a re rs Bawa g

is SE i crcka neces, cen aces Pri

REASONS FOR DENYING THE WRIT ........

POINT I —

THE REVIVAL STATUTE DOES NOT

INTERFERE WITH PETITIONERS’

PROTECTED PROPERTY, AND THUS,

DOES NOT VIOLATE DUE PROCESS ......

POINT II —

REVIVAL OF THE BARRED DES CLAIMS

DOES NOT VIOLATE THE EQUAL

PROTECTION CLAUSE BECAUSE THE

CLASSIFICATION IS RATIONALLY

RELATED TO A LEGITIMATE STATE

REA RIS RE arg 55 la eee

EE ga ons eee eared al a

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TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)

Campbell v. Holt, 115 U.S. 620 (1885)..........

Celotex Corp. v. St. Joseph Hospital, 259 Ga.

108, 376 S.E.2d 880 (1989) ..................

Chase Securities Corp. v. Donaldson, 325 U.S.

ia a A hs 5 wig 54

Connolly v. Pension Benefit Guaranty Corp., 475

ee eck ucu he kd 444 00:k o-6- 0-0

Dandridge v. Williams, 397 U.S. 471 (1970) .....

G.D. Searle & Ce. v. Cohn, 455 U.S. 404 (1982) .

In re “Agent Orange” Product Liability

Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984),

aff'd., 818 F.2d 145 (2d Cir. 1987), cert.

denied, 108 S.Ct. 695 (1988) ................

IUE v. Robbins & Meyers, Inc., 429 U.S. 229

" 3 ae Aaa

Kadrmas v. Dickinson Public Schools, 108 S. Ct.

a e's ,

Lindsley v. Natural Carbonic Gas Co., 220 U.S.

+ STR Taree es eetenseeenes

Penn Central Transportation Co. v. New York

Cit, GBB U.S. BBG CIBGED onc cece s scans

Schwartz v. Heyden Newport Chemical Corp., 12

N.Y.2d 212, cert. denied, 374 U.S. 808 (1963) .

Page

10

10

10

13

14

ll

va

Cases Page

Thornton v. Roosevelt Hospital, 47 N.Y.2d 780

ES yes ee DE ee uae Z 4

Tyson v. Johns-Manville Sales Corp., 399 So.2d

hk eas 9h ale Kw ait aah 9 ine hw 9-4 10

Williamson v. Lee Optical of Oklahoma, 348 U.S.

RSS 3c a ee 14

Zipes v. Trans World Airlines, Inc., 455 U.S. 385

DE 5 vce bubba LEA bE NU. ob cde Sew eee 1]

CONSTITUTIONAL AND STATUTORY PROVISIONS

Sl I I, I go So nde se vase caneugnaien passim

Act of July 30, 1986, ch. 682, 1986 N.Y. Laws

Act of July 30, 1986, ch. 682, 1986 N.Y. Laws

IIS EGE yore Ren Pee Pe e)-s en nr oe 2,5

N.Y. Civ. Prac. L. & R. § 208 (McKinney i974) . 4

N.Y. Civ. Prac. L. & R. § 214 (McKinney Supp.

RL cu cbs Wark 4 cn aR SS 54 vos 4

N.Y. Civ. Prac. L. & R. § 214-c (McKinney

EE ete. OGG cake deh. Web he sae ses 5

OTHER AUTHORITIES

Attorney General’s Memorandum to the

eR 6

1986 N.Y. Legislative Annual 288 .............. 7

1986 Record of Proceedings, N.Y. Assembly, June

DELS S het Wide barks sabe 6654 b 040045 0% 5

1986 Record of Proceedings, N.Y. Senate at

EE hte HE oe Gi i se wae be awe 5S is ws 5, 6

siheial

No. 89-204

IN THE

Supreme Court of the United States

OctTosBer TERM, 1988

E.R. SQUIBB & SONS, INC.,

Petitioner,

— against —

MINDY HYMOWITZ and ROBERT ABRAMS,

ATTORNEY GENERAL OF THE STATE OF NEW YORK,

Respondents.

E.R. SQUIBB & SONS, INC.,

Petitioner,

— against —

ELIZABETH TIGUE, ET AL.,

Respondents.

E.R. SQUIBB « SONS, INC.,

Petitioner,

— against —

JANE DOLAN and ROBERT ABRAMS,

ATTORNEY GENERAL OF THE STATE OF NEW YORK,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

BRIEF OF RESPONDENT, ROBERT ABRAMS,

ATTORNEY GENERAL OF THE STATE

OF NEW YORK IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

Introduction

These actions challenge the constitutionality of Section 4, Ch.

682 of the Act of July 30, 1986, 1986 N.Y. Laws 1567: The statute

which became effective on July 30, 1986, revives for a period

of one year, actions for personal injury, injury to property or

death caused by the latent effects of exposure to diethyistilbestrol

(“DES”), tungsten-carbide, asbestos, chlordane or polyviny]-

chloride, which were “barred as of the effective date of this act

or which [were] dismissed prior to the effective date of this act

_ solely because the applicable period of limitations has or had

expired. ...” 1986 N.Y. Laws, ch. 682, § 4.

Petitioner E.R. Squibb & Sons, Inc. (“Squibb”) and cross-

petitioner Eli Lilly & Company (“Lilly”) (hereinafter “peti-

tioners”)* seek review of a judgment of the Court of Appeals

of the State of New York, dated April 4, 1989 (75a), which in-

ter alia, unanimously upheld the revival statute as constitutional.

Specifically, the Court held that revival of DES claims that had

been barred as of the date of the act did not violate petitioners’

rights under the Due Process or Equal Protection Clauses of the

United States Constitution.‘ The Court limited its holding to

' Petitioner and cross-petitioner also challenge the Court’s adoption of a market

_ share theory for determining liability and apportioning damages in DES cases.

Respondent Attorney General of the State of New York intervened below solely

in defense of the constitutionality of the revival statute, and addresses only

that issue in this brief.

* Defendants below were Eli Lilly and Company, Abbott Laboratories, The

Upjohn Company and E.R. Squibb & Sons, Inc. Only E.R. Squibb & Sons,

Inc. and Eli Lilly and Company have petitioned for certiorari on the con-

stitutionality of the revival statute.

* References to a number followed by the letter “a” refer to pages in the Ap-

pendix to the Petition for a Writ of Certiorari to the Court of Appeals of the

State of New York. References prefixed “R.___.” refer to pages in the Record

on Appeal in the Court of Appeals.

* The Court also held that the revival statute was constitutional under the

New York State Constitution. See discussion infra at p. 8.

OE eeeeTT,eeeee_S

LO ”:-—S

DES claims because no producers of the other named substances

or plaintiffs alleging injury therefrom were before the Court.

The petitions should be denied because revival of the barred

DES claims was both reasonable and nonconfiscatory. Thus,

revival of these claims did not result in a taking of petitioners’

property without due process. Petitioners have also not been

denied equal protection of the laws. It was rational for the

Legislature to revive the barred DES claims, in order to cor-

rect for the past injustice to these claimants from the exposure

rule statute of limitations, and it was rational to revive claims

of only five substances, because these substances involved groups

of victims who had been identified and whose injuries were

known to be caused by ingestion or exposure to these substances,

and because limiting revival to these substances ensured cost and

insurance predictability.

STATEMENT OF THE CASE

A. The Facts

Respondent Mindy Hymowitz (“respondent”) was born in

New York City on December ll, 1954.* She first learned that

she was a DES-exposed daughter in 1974 when a physician told

her she had adenosis.* When she was 24 years old, in 1979, she

was informed that she had developed clear cell adenocarcinoma,

a malignancy.

As a result of the malignancy, respondent, at the age of 24,

underwent surgery for removal of her uterus, cervix and most

of her vagina. During surgery, a nerve was severed, causing her

* In addition to Mindy Hymowitz, Elizabeth Tigue and Jane Dolan commenc-

ed actions against petitioners. The Attorney General intervened only in the

case of Mindy Hymowitz.

* Adenois is the abnormal development or formation of gland tissue. Dorland’s

Illustrated Medical Dictionary, 26th ed. (1981).

oo ae

to have permanent loss of bladder control. Because Mindy

Hymowitz lived in New York State, she was barred from seek-

ing compensation from those responsible for her injuries, for

New York’s statute of limitations provided that an action for per-

sonal injury had to be commenced within three years after ex-

posure (N.Y. Civ. Prac. L. & R. § 214), subject to tolling. See

N.Y. Civ. Prac. L. & R. § 208. Respondent’s time to sue had run

in 1975, approximately 4 years before she learned she had cancer.

According to all her doctors, the injuries respondent sustained

were due to DES exposure.’

B. The Toxic Torts Act — Chapter

682 of the Laws of 1986

For decades, New York’s statute of limitations for actions for

damages for personal injury or injury to property provided that

subject to applicable tolling provisions, an action must be com-

menced within three years from the injury. CPLR § 214. Sec-

tion 214 had been interpreted to mean that a cause of action

accrues, without exception, from the date of “last exposure” to

an allegedly harmful substance. See Thornton v. Roosevelt

Hospital, 47 N.Y.2d 780 (1979); Schwartz v. Heyden Newport

Chemical Corporation, 12 N.Y.2d 212, cert. denied, 374 U.S. 808

(1963). Thus, under that statute, plaintiffs had to commence

an action within three years of last exposure or of reaching the

age of majority, whether or not the effects of the harmful

substance had appeared by that time.

To remedy this result, and to provide a remedy to people like

Mindy Hymowitz, the Legislature, after many years of debate,

passed the Toxic Torts Act, effective July 30, 1986. The act pro-

vides that notwithstanding section 214 (the “exposure” rule), the

three year period within which to commence an action for in-

jury caused by the latent effects of exposure to any substance

shall be computed from the date of discovery of the injury by

the plaintiff or from the date “when through the exercise of

’ Her case was written up in 57 Ob. Gyn. 395 (1981) “Delayed Onset of Clear

Cell Adenocarcinoma of the Vagina in DES-Exposed Progeny.” (R.513).

EEE EEE

reasonable diligence”, such injury should have been discovered

by plaintiff, whichever is earlier. N.Y. Civ. Prac. L. & R. § 214-c.

The revival portion of the Toxic Torts Act provides that not-

withstanding other sections of the Act, if 2 person or property

is injured as a result of the latent effects of exposure to DES,

tungsten-carbide, asbestos, chlordane or polyvinyl-chloride, an

action may be commenced within one year of the effective date

of the statute [July 30, 1986] even if the action would have been

barred as of the effective date of the act, or had been dismissed

prior to the effective date of this act solely because the applicable

period of limitations had expired. 1986 N.Y. Laws, ch. 682, § 4.

The Legislature’s purpose in limiting the revival statute to

these five substances is explained by the authoritative legislative

history. Assemblyman Miller, a co-sponsor of the bill, stated dur-

ing proceedings on the bill:

The reason you have these five substances... is

because these are the five groups of victims that we

have been able to identify. These chemicals and in one

instance a drug, because DES is a drug, all are drugs

where we have been able to identify victims who have

also been able to demonstrate that there has been a

causal relationship either between ingestion or ex-

posure and their injury (R.188).

He continued, that the five were picked “after consultations,

broad consultations with the victims groups throughout the State

of New York and these five substances represent the five

substances that we can absolutely [sic] have a causal relation-

ship to injury” (R.190).

And in the Senate, Senator Connor stated that the bill ap-

plied “specifically to a population for whom the census is pret-

ty clear, the number of people involved are pretty clear” (R.203).

He stated further that although the new section only revived

claims for specific toxic substances “[t]here is certainly a possibili-

ty in the future of expanding the list” (R.203).

Senator Connor then went on to say that the legislature was

only changing a statute of limitations — a procedural measure,

not a substantive right, and therefore “there is nothing to pre-

vent a future legislature from changing procedures even further,

from perhaps going further and curing some of the shortfall-

ings or shortcomings that may be in this bill as a result of com-

promise” (R.203-204).

The Attorney General of the State of New York agreed. In

his Memorandum to the Governor, he advised that

Ideally the revival would have applied to all vic-

tims regardless of the nature of the chemical to which

they were exposed. The five chemicals enumerated do,

however, cover the groups who are generally known

to have been prejudiced under current law. As other

groups are identified, it may be necessary to further

amend the revival provisions of this bill (R.287).

The G: vernor in his memorandum approving the bill explain-

ed that the bill was intended to remedy past injustice in the state’s

statute of limitations for personal or property may due to the

latent effects of toxic substances.

This measure . . . remedies a fundamental injustice

in the laws of our State which has deprived persons

suffering from exposure to toxic or harmful substances

from having an opportunity to present their case in

Court. That injustice results from an archaic rule

which commences the three year time period for a suit

on the date that exposure occurs. The rule fails to

recognize that the adverse effects of many of these tox-

ic substances do not manifest themselves until many

years after the exposure takes place. In such cases, a

person is barred from Court before he or she is aware

of any injury.

Most importantly, this measure remedies the injustices

suffered by all of the currently known categories of

victims of exposure to toxic or harmful substances.

These include persons who have suffered serious in-

juries as a result of exposure to diethylstilbestrol (DES),

tungsten — carbide, asbestos, chlordane or polyviny]-

chloride and have been deprived of access to the

Courts because their claims were time barred. This

bill revives their claims for a one year period and

enables them to have their day in Court.

1986 NY. Legislative Annual 288.

C. Prior Proceedings

On or about April 7, 1987, respondent commenced the ins-

tant action, asserting two causes of action for negligence and

strict liability, against various manufacturers of DES.* She

claimed that the action was authorized by the revival statute,

and requested compensatory damages of $10,000,000 and

$10,000,000 in punitive damages. In their answers defendants

claimed, inter alia, that the revival statute violated the due pro-

cess and equal protection clauses of the federal and state con-

stitutions and that the action was time barred. Respondent

moved pursuant to CPLR 3211(b) to strike these affirmative

defenses.

Defendants below, Lilly, Abbott, and Upjohn, cross-moved

for summary judgment and dismissal of the complaint. Defen-

dant Squibb opposed the motion, asserting inter alia, that

respondent’s motion should be deferred pending completion of

discovery.

By decision and order entered July 21, 1987, the Supreme

Court of the State of New York, New York County (Gammer-

man, J.) granted respondent’s motion to strike the defendants’

* Plaintiff commenced an action against defendants before the statute went

into effect. By order dated June 25, 1987 and entered July 24, 1987, the

Supreme Court permitted plaintiff to discontinue her first action without pre-

judice, and granted her leave, nunc pro tunc, to commence the second action.

affirmative defenses challenging the revival statute as unconstitu-

tional on equal protection and due process grounds (54a), and

denied defendants’ cross-motions for summary judgment. Id.

The Appellate Division, First Department unanimously af-

firmed that order upon the decision of the trial judge on April

14, 1988. (35a). On May 24, 1988, the First Department granted

defendants’ motions for leave to appeal to the New York Court

of Appeals.

In its opinion, dated April 4, 1989, the Court of Appeals,

agreeing with the lower courts, unanimously upheld the revival

statute as constitutional. (19a).

The Court disposed of petitioners’ federal due process

challenge, stating that “[t]he federal due process clause provides

very little barrier to a state legislature's revival of time-barred

actions (see Chase Securities Corp. v. Donaldson, 325 U.S. 304)”

(19a). The Court concluded that, as in Chase, in which this

Court upheld the revival of a time barred action, statutes of

limitations “represent a public policy about the privilege to

litigate ... the history of pleas shows them to be good only by

legislative grace and to be subject to a relatively large degree

of legislative control (id. at 314)” (19a).

Moreover, the Court found the revival statute constitutional

even under state law, which requires a more stringent level of

review, the exceptional circumstances test (20a).

Applying that test, the Court held that because the latent

nature of DES injuries is well known, and because in the past

the exposure rule prevented the bringing of timely actions for

recovery, exceptional circumstances are present and the revival

statute which rectifies this injustice is thus constitutional. (20a).

The Court also held that the revival statute, as it pertains to

DES, comports with equal protection guarantees, because it has

a rational basis: the number of DES caused injuries, and the

fact that DES victims were prejudiced by the prior law, was

relatively well known by the Legislature, and this allowed for

the ramifications of revival of DES claims, such as the effect

on insurance interests and othe; costs to be reasonably predicted

(22a).

The Court concluded that these factors formed a proper basis

for the Legislature's decision to revive DES claims now and to

wait as to other substances, until they present a problem suitable

for resolution. The Court relied upon the principle that equal

protection guarantees are not violated by approaching piecemeal

what may be a larger problem. (22a).

REASONS FOR DENYING THE WRIT

The petitions should be denied because petitioners have not

demonstrated that the Court of Appeals’ decision conflicts with

any decisions of other state courts of last resort or of federal

courts of appeal, or that their constitutional claims are of such

public importance as to warrant review by this Court. Although

the essence of petitioners’ due process and equal protection

arguments is that the revival statute violates their rights because

it permits revival of those claims which could have been timely

brought under the prior exposure-based limitations period and

were not, they have not shown that there is a significant number

of claimants in this category. Moreover, as will be demonstrated

below, revival of the barred DES claims was both rational and

nonconfiscatory, and thus, petitioners have not been denied due

process or equal protection of the laws.

POINT I

THE REVIVAL STATUTE DOES NOT INTERFERE

WITH PETITIONERS’ PROTECTED PROPERTY,

AND THUS, DOES NOT VIOLATE DUE PROCESS

Petitioner Squibb claims that it has been denied due process

because the revival statute interferes with its protected proper-

ty, to wit, its “distinct investment backed expectations”. (Squibb

Pet. p. 22). Put simply, Squibb contends that it has based its

present and future business decisions, including decisions on in-

surance and litigation costs upon the expectation that DES

10 “6

claims, barred as of the date of the revival statute, would no

longer be viable.* Cross-petitioner Lilly, apparently raises the

same claim. Lilly alleges that the prior statute of limitations

vested Lilly with rights of repose upon which, under the due

process clause, it could rely in making business judgments about

insurance and management of litigation and other costs (Lilly

Pet. p.10). Neither due process claim has merit.

In support of their claims, petitioners argue that Chase

Securities Corp. v. Donaldson, 325 U.S. 304 (1945), is no longer

good law (Squibb Pet. p. 21-22; Lilly Pet. p. 10,n.8). They claim

that the due process analysis of property rights set forth in Chase

Securities does not survive this Court’s “[m]odern just compen-

sation analysis [which] identifies protected property by look-

ing to whether state regulation has ‘interfered with distinct

investment-backed expectations’. (citation omitted).” (Squibb Pet.

p. 22). There is no basis for this contention, and indeed, peti-

tioners advance none”

In fact, prior to Chase Securities, in the seminal case of Camp-

bell v. Holt, 115 U.S. 620 (1885), and since Chase Securities,

federal courts have consistently upheld state statutes reviving

time-barred actions, based on the recognition that the expira-

tion of a statute of limitations creates no “vested interest” in a

* Although petitioner alleged a general “taking” claim below, its investment-

backed expectations argument is a new theory never raised in any of the courts

below. In all but exceptional circumstances, not present here, this Court has

declined to address arguments not raised below. Adickes v. S.H. Kress & Co.,

398 U.S. 144, 147 n.2 (1970).

” Petitioners argue that the need for review is “highlighted” because two re-

cent state court decisions have invalidated a revival statute similar to New

York’s. (Squibb Pet. p. 22). This argument must be flatly rejected because the

two cases cited by petitioners, Celotex Corp. v. St. Joseph Hospital, 259 Ga.

108, 376 S.E.2d 880 (1989) and Tyson v. Johns-Manville Sales Corp., 399 So.2d

263 (Ala. 1981), not only were decided on state constitutional grounds, but

in reliance upon the state constitution provisions that expressly prohibited the

revival statute in question. Clearly, therefore, those cases are inapplicable,

because New York’s Constitution does not prohibit revival of barred claims.

1]

right not to be sued. See IUE v. Robbins & Myers, Inc., 429

U.S. 229 (1976); G.D. Searle & Co. v. Cohn, 455 U.S. 404 (1982);

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); In re

“Agent Orange” Product Liability Litigation (“Agent Orange”),

597 F. Supp. 740 (E.D.N.Y. 1984), affd, 818 F.2d 145 (2d Cir.

1987), cert. denied, 108 S. Ct. 695 (1988). In light of these

precedents which have consistently upheld revival legislation for

more than one hundred years, petitioners’ due process challenge

must fail.

Even assuming petitioners had a protected property interest

in the statute of limitations, revival of the barred DES claims

does not constitute a compensable taking under the fourteenth

amendment.

In Penn Central Transportation Co. v. New York City, 438

U.S. 104 (1978), this Court identified three factors of particular

significance in determining whether a taking in violation of due

process has occurred: (1) the character of the governmental ac-

tion, (2) the economic impact of the regulation on the claimant

and (3) the extent to which the regulation has interfered with

distinct investment backed expectations. 438 U.S. at 124.

Examining the revival statute in light of these factors shows

that the revival of the barred DES claims does not violate peti-

tioners’ rights to due process.

First, the revival statute is remedial in nature, and was enacted

to remedy the manifestly unjust result of the exposure-based

statute of limitations on the victims of exposure to DES. As such

it promotes the health, safety and welfare of the State’s citizens.

Penn Central Transportation Co., 438 U.S. at 124; see also Con-

nolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 225

(1986).

Second, although the revival statute may have an economic

impact upon petitioners because of the increase in the number

of claims, that alone is not unlawful. The revival statute mere-

ly gives claimants their day in court. It does not ensure their

success on the merits of their claim.

12

Finally, the revival statute has not interfered with petitioners’

investment-backed expectations. Petitioners themselves argue

here as they did below, that the revival statute was the result

of a political compromise reached after many years of debate.

With all the years of debate, petitioners’ claim that in making

their business decisions, they did not consider the probability

that they would have to litigate at least some revived claims,

is incredible.

Similarly unavailing is petitioners’ claim that under the Chase

analysis, the revival statute imposes “special hardships” and “op-

pressive effects” on them. In rejecting this very argument, in

In re “Agent Orange’, Product Liability Litigation (“Agent

Orange”), 597 F. Supp. 740 (E.D.N.Y. 1984), affd, 818 F.2d 145

(2d Cir. 1987), cert. denied, 108 S. Ct. 695 (1988), a case in-

volving the revival of agent orange claims, the district court

found that the traditional purpose underlying a statute of limita-

tions — preventing stale claims — was not frustrated by the

revival statute:

Staleness of claims is not a relevant issue in this litiga-

tion. Defendants have not lost evidence on their key

defenses through the passage of time .... The

availability of pertinent information, factual analyses

and scientific studies has increased during the interim

period facilitating the preparation of the case for all

litigants. Nor are defendants suddenly faced with the

reinstigation of an action for which they are un-

prepared. Defendants have been aware, since not all

claims were time-barred, that they would be litigating

these issues at some point against some plaintiffs.

597 F. Supp. at 812-813 (emphasis added).

The same is true of petitioners in this case. They will, in any

event, be defending against a sizeable number of claims, many

of considerable age, in those states with a discovery based limita-

tions’s period. As the trial court below held “loss of evidence

over time is not of significance. Defendants have been litigating

similar non-time barred DES cases for years.” (51a).

13

In sum, although the revival legislation to some degree read-

justs rights and burdens, petitioners have not demonstrated the

substantiality of their claim that the readjustment violates their

rights under the due process clause.

POINT Il

REVIVAL OF THE BARRED DES CLAIMS DOES

NOT VIOLATE THE EQUAL PROTECTION

CLAUSE BECAUSE THE CLASSIFICATION IS

~ RATIONALLY RELATED TO A LEGITIMATE STATE

INTEREST

Petitioners claim that the classification which (a) singles out

DES and four other substances from ali other toxic substances

and (b) which revives claims arising from exposure to those

substances, including claims which could have been timely

brought under the prior exposure rule, is irrational, and thus

violates their rights to equal protection. To the contrary, the

Legislature's decision to proceed initially only with respect to

DES and four other substances and to revive claims regardless

of whether they might have been timely brought under the prior

statute of limitations was reasonable, and thus comports with

equal protection guarantees.

‘In the absence of a classification affecting fundamental rights

or creating suspect classifications, equal protection requires only

that the challenged classification be “rationally related to a

legitimate governmental purpose (citations omitted)”, Kadrmas

v. Dickinson Public Schools, 108 S. Ct. 2481, 2487 (1988). Peti-

tioners’ implicit assumption that states must treat all manufac-

turers of every toxic substance’in identical fashion is entirely

unfounded. The “Equal Protection Clause does not require that

a State ... choose between attacking every aspect of a problem

or not attacking the problem at all”. Dandridge v. Williams,

397 U.S. 471, 487 (1970). The fact that there are other known

toxic or harmful substances which allegedly cause latent harmful

effects does not render the classification arbitrary. Indeed, it

is well established that reform may take “one step at a time, ad-

dressing itself to the phase of the problem which seems most

14

acute to the legislative mind. The legisiature may select one

phase of one field and apply a remedy there, neglecting the

others.” Williamson v. Lee Optical of Oklahoma, 348 U.S. 483,

489 (1955). Thus, a statute is not unconstitutional because its

classifications are iniperfect, Dandridge v. Williams, 397 U.S.

at 485, or are “not made with mathematical nicety or because

in practice it results in some inequality.” Lindsley v. Natural Car-

bonic Gas Co., 220 U.S. 61, 78 (1911).

New York’s Legislature determined that the exposure-based

statute of limitations was unjust as applied to toxic tort claims

because the injuries frequently did not appear before the time

to commence an action had run. To remedy this injustice, the

Legislature revived only claims related to substances which it

believed directly caused the injuries. It also limited the revival

to five substances in an effort to contain costs. The revival statute

is thus rationally related to the legitimate state interest of reme-

dying past injustice to victims of exposure to DES and four other

toxic substances. Accordingly, the statute does not violate the

equal protection clause.

Petitioners argue, however, that because the prior law did no

injustice to those victims of DES exposure who could have

brought a timely action, inclusion of these claims renders the

statute irrational and therefore unconstitutional.

The revival of all barred DES claims is eminently reasonable.

As the Court of Appeals found

[s]ome plaintiffs:may have known of their injuries a

day, or a week, a month, or perhaps longer, before

the original limitations period ran. Some may have

known of their exposure, but did not develop injuries

during the limitations period. Others may have known

of some effect upon them of DES exposure, which

became cancerous only after any action would have

been time barred. (21a).

The Court thus correctly concluded that under the cir-

cumstances it was reasonable for the Legislature to revive all

15

DES claims uniformly for one year, rather than for the courts

-to “begin drawing arbitrary lines transecting this area’s shades

of gray.” (21a). Thus there is no “special” or “important” reason

for this Court to grant the petition or cross-petition.

CONCLUSION

For the foregoing reasons, the petition and cross-petition for

a writ of certiorari should be denied.

Dated: New York, New York

September 28, 1989

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

Respondent

120 Broadway

New York, New York 10271

(212) 341-2025

O. PETER SHERWOOD

Solicitor General

LAWRENCE S. KAHN

Deputy Solicitor General

ANDREA GREEN ‘

Assistant Attorney General

[Counsel of Record]

Of Counsel