Written by Dominique Beins en Juliette Poelman
Published on 13 July 2026
How a medicine led to (many) proceedings
The DES-daughters case made an important contribution to the development of Dutch liability law and to the creation of the Wet collectieve afwikkeling massaschade (WCAM) and subsequently of the Wet afwikkeling massaschade in collectieve actie (WAMCA). In this publication, we focus on the DES daughters lawsuit. A later publication will address the WCAM and the WAMCA.
The DES hormone: the drug that turned out to be a nightmare
In the 1950s to 1970s, the drug “DES” (diethylstilbestrol) entered the market. This is an artificial female hormone that was prescribed by doctors to pregnant women during this period. DES was supposed to prevent miscarriages, but this goal was not achieved. In fact, DES increased the risk of health problems such as various types of cancer, both for the woman who used the drug (DES mother) and for her daughters (DES daughters), sons (DES sons) and her grandchildren.1 As a result, DES has been banned from prescription during pregnancy since 1976.2 In 1982, the DES Centre was established: a foundation to represent the interests of anyone living with the consequences of exposure to the DES hormone during pregnancy.3
DES took the form of pills, capsules, drops and (until 1964) injections. The drug was made by several manufacturers.
The procedures of the DES daughters
In 1986, six DES daughters filed a claim for compensation for their damages against ten pharmaceutical companies based in the Netherlands that marketed DES.4 As it was no longer possible to find out which manufacturer had marketed the drug used by the DES daughters’ mothers, they invoked the rule of alternative causation. This rule, now enshrined in Section 6:99 of the Durch Civil Code, means in this case that each of the producers is jointly and severally liable, unless the producer can prove that the damage was not caused by the DES preparation he marketed.
No success in lower courts
Both the District Court of Amsterdam and the Amsterdam Court of Appeal assumed that although the rule as laid down in the later Section 6:99 of the Civil Code was already applicable at the time, did not apply because it required all possible perpetrators to be known.5
The Supreme Court brings salvation
However, in a landmark judgement of 9 October 1992 (ECLI:NL:HR:1992:ZC0706, NJ 1994, 535), the Supreme Court ruled that the result achieved in this way was inappropriate. The injured party would have to bear its own damages if it could not identify all producers, although such identification of all producers would be virtually impossible. The DES producers argued that DES was also marketed by pharmacy-owning general practitioners, making Section 6:99 of the Civil Code inapplicable, as this could result in an injured party receiving damages, while it is theoretically conceivable that the person who actually caused the damage would not be liable.
The Supreme Court ruled that this consequence is indeed conceivable, but this does not relieve other producers of their liability for the entire damage, unless such liability would be unacceptable by the standards of reasonableness and fairness in the given circumstances, including the magnitude of the likelihood that the damage of the DES daughter in question was caused by DES from a non-liable producer.
No market share liability but joint and several liability for the whole
The Supreme Court adopted joint and several liability and not market share liability. By doing so, the Supreme Court helped create an urgent need for DES manufacturers to seek a collective solution.
Pharmacists set up a fund by necessity/ Pharmacists forced to set up a fund
Thus, the DES fund was established, for which an amount of €35 million was made available by these pharmaceutical companies and their insurers.6 The DES producers and their insurers did impose the condition that the fund had to be of a “closed-end nature”. This means that DES beneficiaries should only be compensated for their damages from this fund, so that they would no longer have the option of claiming damages individually from one or more companies outside the fund.
Request for a statutory regulation
A request to legally enforce the aforementioned commitment to the pharmaceutical companies’ arrangement was rejected by the Minister of Justice. To do so, Article 6 ECHR was invoked, which guarantees the right of access to justice. However, the minister did pledge to make efforts to create a statutory regulation whereby the court can be asked to declare an agreement providing for collective settlement of mass damage binding on the entire group of victims. In doing so, it was indicated that, having regard to Article 6 ECHR, it should be possible for injured parties to opt out of such binding nature within a certain period of time after the court ruling. This is also referred to as the opt-out option. In this way, those who make use of this will retain full freedom to individually file their claims and go to court. Thus, the proceedings over the tragedy of the DES daughters contributed to the development of the Act on collective settlement of mass damages (WCAM). The WCAM later evolved into the WAMCA. This will be discussed in a subsequent publication.
About the authors
This article was written by Dominique Beins and Juliette Poelman. They are legal assistants at Poelman c.s.
1 E.H. Hondius, Consumentenrecht, Monografieën BW nr. A8 2013/31.1
2 N. Frenk, ‘Definitieve afwikkeling van de DES-zaak in zicht Hof Amsterdam 1 juni 2006, NJ 2006, 461’, AV&S 2006, 24.
3 Descentrum.nl
4 N. Frenk, ‘Definitieve afwikkeling van de DES-zaak in zicht Hof Amsterdam 1 juni 2006, NJ 2006, 461’, AV&S 2006, 24.
5 N. Frenk, ‘Definitieve afwikkeling van de DES-zaak in zicht Hof Amsterdam 1 juni 2006, NJ 2006, 461’, AV&S 2006, 24.
6 N. Frenk, ‘Definitieve afwikkeling van de DES-zaak in zicht Hof Amsterdam 1 juni 2006, NJ 2006, 461’, AV&S 2006, 24.
