” This is a product liability action brought against eight drug manufacturers, four of whom have been served. Plaintiff Mary Morton1 alleges that she contracted vaginal adenosis as a result of her mother’s use of the drug diethylstibestrol (DES) while plaintiff was in utero. Plaintiff does not allege which drug company manufactured the pills taken by her mother. Rather, she alleges that the defendant drug companies manufactured a substantial share of the DES pills produced during the period in question, and argues various theories to support liability without the necessity of proving which company manufactured the pills in question. Defendants do not deny that they manufactured the drug DES during the period in question. Instead, they state, by motions for summary judgment, that at least 149 drug companies manufactured DES during that period, any one of which might have produced the pills taken by plaintiff’s mother. Plaintiffs have responded to the motions for summary judgment, and have documented their response by filing a certified transcript of portions of the deposition testimony of Dr. Don Carlos Hines, taken in Bichler v. Eli Lilly and Co.
MORTON v. ABBOTT LABORATORIES, Leagle, decision/19821131538FSupp593_11043, March 25, 1982.
The motions for summary judgment were heard by the Court. At hearing, which was attended by plaintiffs Mary T. and David M. Morton, counsel for plaintiffs filed a motion to continue the hearing and a motion to withdraw. …
… Plaintiff relies on several legal theories in support of her argument that recovery is available without proof of which drug company actually manufactured the pills in question. The first two theories concern joint torts: plaintiff would establish the liability of several companies jointly under the “concert of action” or “enterprise liability” theories, thereby entitling her to recover from those joined as defendants. The requirement of causation remains intact under these theories. The last two, however, are novel theories of causation rather than of joint liability: plaintiff argues that the Court should overlook the flaws in traditional causation under either the theory of “alternative liability” or that of “market share.” Each of these four theories will be discussed below.
Concert of Action
Relying on the concert of action theory of joint tort liability, plaintiffs would hold these several defendants liable for having acted in concert with each other and other drug manufacturers in causing her injury. Specifically, plaintiffs allege that the drug companies acted in concert “in the testing, manufacturing, distribution, promoting, marketing and sale of DES and the dissemination of literature regarding DES to practicing physicians.” . Further, plaintiffs allege that defendants are liable for manufacturing and selling DES “with identical chemical constituency by a mutually agreed-upon formula,” thereby enabling the marketing of DES as a generic drug and preventing consumers from identifying the manufacturer. …
Like concert of action, plaintiff’s second theory — enterprise liability — would impose liability on each DES manufacturer on the basis of their group conduct. The concept of enterprise, or industry-wide, liability derives from Judge Weinstein’s opinion in Hall v. Du Pont De Nemours & Co. …
The remaining two theories relate not to the joint conduct — and therefore joint liability — of defendants, but to the element of causation. The first of these causation theories, that of alternative liability, is based on several decisions, most notably Summers v. Tice, and Ybarra v. Spangard. It has been nicely distilled:
Where the conduct of two or more actors is tortious, and is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one of them has caused it, the burden is upon each such actor to prove that he has not caused the harm.
The final theory urged by plaintiffs, termed that of market share, was formulated by the Supreme Court of California as an extension of its alternative liability doctrine. In Sindell v. Abbott Laboratories, supra, a DES plaintiff asserted several theories in support of recovery despite her inability to prove which company caused her injury. After rejecting each of the three theories discussed above, the court adopted a novel — perhaps radical — means of allowing plaintiff to circumvent the element of causation.
The Sindell court held that plaintiff need only show that her condition was caused by the drug DES and that those companies joined as defendants produced a substantial share of the DES pills on the market when plaintiff’s mother took the drug. Upon such a showing, each defendant would be held liable according to its share of the market unless it could prove that it did not manufacture the pills in question. Thus, the California court shifted the burden just as it had inSummers v. Tice, supra, despite the possibility that no defendant caused the injury. The court based its holding on the “rough justice” of the result: the adjudication of many DES cases under this theory would assertedly lead to each manufacturer being responsible for that share of the total DES liability that is proportional to its share of the DES produced.
The market share theory unquestionably represents a radical departure from the traditional concept of causation. Plaintiffs argue at length that the development of product liability law in Florida suggest a loosening of the causation requirement, and therefore that Florida would adoptSindell. Plaintiffs’ position is not advanced by their argument that Florida has adopted strict liability, see West, supra, and rejected the defense of contributory negligence in favor of the comparative negligence doctrine. …
… read the full paper MORTON v. ABBOTT LABORATORIES on Leagle.