… Although each case presents its own factual nuances, one common problem continually reappears: many of the plaintiffs are simply unable to identify the manufacturer of the estrogen product to which they were exposed. The plaintiffs therefore seek some way to circumvent the traditional tort element of causation in fact.
ABEL v. ELI LILLY & CO., Leagle, 1984729418Mich311_1717, October 1, 1984.
In order to bypass the identification requirement, plaintiffs assert that defendants (who are purportedly all the manufacturers of synthetic estrogens for pregnancy use in Michigan) are jointly and severally liable. Several theories have been advanced to justify this joint liability including alternative liability, concert of action, and what is referred to as “collective” or “industry-wide” liability.
Defendants jointly sought partial summary judgment pursuant to GCR 1963, 117.2(1) against all plaintiffs who were unable to identify the manufacturer of the prescription drug allegedly responsible for their injuries. The trial judge denied this motion, without prejudice, and ordered further discovery on “the alleged joint or enterprise liability and conspiracy of all defendants”.
After approximately two years of discovery, the defendants again moved jointly for partial summary judgment on the basis of GCR 1963, 117.2(1) and (3). Finding that the plaintiffs had indeed failed to state a cause of action, the trial judge granted summary judgment in favor of defendants and against those plaintiffs who were unable to identify the manufacturer of the drug which allegedly caused their injury. Also, with regard to those plaintiffs able to identify the manufacturer, the court dismissed all other defendants.
On appeal, the Court of Appeals reversed the summary judgment, finding that the plaintiffs had made sufficient allegations to support the alternative liability and concert of action theories. Abel v Eli Lilly & Co . The Court of Appeals reviewed only the defendants’ GCR 1963, 117.2(1) claims (failure to state a cause of action); the GCR 1963, 117.2(3) issues (no genuine issue of material fact) were not addressed.
We are called upon today to review the correctness of these rulings. We hold that the plaintiffs have made sufficient allegations to support both the concert of action and alternative liability causes of action. ” …
… read the full paper ABEL v. ELI LILLY & CO., on Leagle.