Opinion
December 1, 1989
Goodwin, Proctor Hoar (Richard A. Oetheimer of counsel), and Greene, Hershdorfer Sharpe (Lorraine M. Rann of counsel), for Eli Lilly Co., defendant.
Harter, Secrest Emery (Peter M. Blauvelt of counsel), for Abbott Laboratories, Inc., defendant.
Sedgwick, Detert, Moran Arnold (Ann L. Wilson of counsel), for Upjohn Company, defendant.
Hiscock Barclay (Victoria K. Munley of counsel), for Vale Chemical Company, defendant.
Bond, Schoeneck King (Jonathan B. Fellows of counsel), for Merck Company, Inc., defendant.
Phillips, Lytle, Hitchcock, Blaine Huber (Tamar P. Halpern of counsel), for E.R. Squibb Sons, Inc., defendant.
Leonard L. Finz, P.C. (Stuart L. Finz of counsel), for plaintiffs.
The defendants, Lilly, Abbott, Upjohn, Vale, Merck, and Squibb, seek an order granting partial summary judgment (CPLR 3212 [e]) dismissing the derivative claim of plaintiff Kevin Murphy for loss of consortium on the ground that the alleged tortious conduct which gave rise to his wife's claim for personal injury occurred prior to the marriage.
The defendants' motions for partial summary judgment must be granted. Damages for loss of consortium are not recoverable where, as here, the alleged wrongful conduct preceded the marriage. (Briggs v Butterfield Mem. Hosp., 104 A.D.2d 626; Rademacher v Torbensen, 257 App. Div. 91; Andersen v Lilly Co., Sup Ct 1988 [No. 87-775]; Wind v Lilly Co., Sup Ct 1989 [No. 86-19699]; Clark v Lilly Co., 725 F. Supp. 130.) The policy behind this rule is that a third party should not be able to "create an ex post facto liability for loss of consortium where none existed before" simply by marrying an injured person. (Walsh v Armstrong World Indus., 700 F. Supp. 783, 786.) The plaintiff Kevin Murphy's reliance on Enright v Lilly Co. ( 141 Misc.2d 194) is misplaced. The latter case cited Piccirelli v Johns-Manville Sales Corp. ( 128 A.D.2d 762) as authority for the proposition that where a personal injury action is revived, the derivative loss of consortium claim is also revived. In Piccirelli, an asbestos case, the parties were married on the date of the alleged tortious conduct and, thus, the derivative cause of action was revived, as well. Such is not the case here.
Accordingly, partial summary judgment is granted and the 11th cause of action set forth in plaintiffs' complaint is dismissed.