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MATTER OF NEW YORK COUNTY DES LITIG.

168 A.D.2d 50 (1991)

In the Matter of New York County DES Litigation

Appellate Division of the Supreme Court of the State of New York, First Department.

May 28, 1991

Attorney(s) appearing for the Case

Leonard L. Finz, P. C., of counsel (Stuart L. Finz with him on the brief), for DES Liaison Committee, plaintiffs-appellants.

Russel H. Beatie, Jr., of counsel (Kenneth J. King, Philip J. Miller, Edward S. Weltman and Joanne M. Gray with him on the brief; Brown & Wood, and Schneck Weltman & Hashmall, attorneys), for Eli Lilly & Company and another, defendants-respondents.

Jay P. Mayesh of counsel (William A. Rome, Mark S. Cheffo, Marc S. Klein, Anna Waldherr, Henry R. Simon and Ellen Hoffer with him on the brief; Stroock & Stroock & Lavan; Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross; Kelly, Tobias, Turner & Stewart; and Henry R. Simon, attorneys), for The Upjohn Company and others, defendants-respondents.

Theodore V. H. Mayer of counsel (Robb W. Patryk with him on the brief; Hughes Hubbard & Reed, attorneys), for Merck & Co., Inc., defendant-respondent.

Sheila Weinstein of counsel (Bivona & Cohen, P. C., attorneys), for Rowell Laboratories Inc. and others, defendants-respondents.

CARRO, J. P., MILONAS, KASSAL and RUBIN, JJ., concur.

ASCH, J.

Plaintiffs on this appeal take issue with that portion of decretal paragraph 9 of the order which directed that: "[a]ll complaints are hereby deemed amended so as to replace allegations of joint and several liability (and collective theories of liability) with allegations of several liability as defined by the decision in Hymowitz v. Eli Lilly and Company [73 N.Y.2d 487

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