1985 DES Case: McCormack v. Abbott Laboratories


…”By way of procedural history, plaintiff’s case was originally consolidated with the case of Payton v. Abbott Laboratories, Civil Action No. 76-1514-S. A class was certified and plaintiff opted to become a member of the class. On December 6, 1983, Judge Skinner decertified the class and plaintiff now prosecutes her action individually.” …

Market-Share Liability in Massachusetts

Accordingly, the court holds that a plaintiff who can not meet the traditional identification requirement may avail herself of a market-share theory of liability by alleging the following elements:

  • that plaintiff’s mother ingested DES during the pregnancy which resulted in plaintiff’s birth;
  • that DES caused plaintiff’s subsequent injuries;
  • that the defendant or defendants produced or marketed the type of DES taken by plaintiff’s mother;
  • and that the defendant or defendants acted negligently in producing or marketing the DES.

Plaintiff must prove each of these elements by a preponderance of the evidence. Note well: plaintiff need not allege or prove that a defendant produced or marketed the particular DES that caused her subsequent injuries. Plaintiff must only establish that a defendant produced or marketed the type of DES, as distinguished by color, shape, size or markings, ingested by plaintiff’s mother.

McCORMACK v. ABBOTT LABORATORIES, Leagle, 19852138617FSupp1521_11883, September 30, 1985.

Individual defendants may exculpate themselves from liability by proving by a preponderance of the evidence that they did not produce or market the particular type of DES taken by plaintiff’s mother; or that they did not market DES in the relevant geographic market area; or that they did not distribute the drug during the time period of plaintiff’s mother’s pregnancy.

Defendants who are unable to establish that the DES they produced or marketed could not have been ingested by plaintiff’s mother will become part of the DES market as narrowed and defined on a case-by-case basis by the specificity of the evidence as to geographic market area, time of ingestion, and physical characteristics of the subject DES. The court follows the approach taken by the court in Martin v. Abbott Laboratories, 1984, for apportioning liability among remaining defendants. Such defendants are presumed initially to have equal shares of the market. However, defendants may rebut this presumption by establishing by a preponderance of the evidence their individual market share of DES in the plaintiff’s particular geographic market during the time period in question. Upon proof of an actual market share, a defendant will only be liable for the portion of the total judgment represented by such share. Of course, other defendants who fail to prove an actual market share will be liable equally for the remaining market. On the other hand, where all defendants successfully establish a reduced actual market share, the portion of the judgment representing the remaining unclaimed share of the market may not be recovered by the plaintiff. The rationale is that unnamed defendants are responsible for the remaining DES distributed in the relevant market and the named defendants should not be held to answer for the negligence of others. Defendants raise several arguments against adoption of such a market-share theory of liability and the court will address them separately.

First, defendants contend that apportionment of liability on this basis violates the letter and spirit of the Payton decision, where the Supreme Judicial Court expressed concern about protecting tortfeasors from liability exceeding their responsibility. However, under the market-share theory set forth in this memorandum of decision, disproportion between potential liability and actual responsibility is significantly reduced. Where each defendant carries its burden of proof with respect to actual market share, no defendant will be held liable in negligence for more harm than it statistically could have caused in the relevant market. Furthermore, the opportunity to present exculpatory evidence reduces the risk of imposing liability on innocent actors. It is conceded that in some situations a defendant will be held liable to a particular plaintiff whose injury it did not actually cause. However, under a market-share theory, a plaintiff must first prove that a defendant acted tortiously before any liability may be imposed. Consequently, a defendant who erroneously is held liable to a particular plaintiff can not be considered wholly innocent of wrongdoing. Such defendant, by engaging in the conduct found to be negligent, contributed to the risk of injury to the public in general and consequently shares some degree of culpability in producing or marketing DES.

Defendants also object to the allocation of the burdens of proof as inequitable and impractical, arguing that plaintiffs, rather than defendant drug companies, have superior access to identification information and that, therefore, defendants should not have the burden of exculpating themselves. This argument, however, proves too much. The fundamental premise of the market-share theory of liability is that the plaintiff lacks sufficient identification information to make out a prima facie case of negligence under traditional principles of tort liability. The absence of such information is largely attributable to the substantial delay in the drug’s effects and the consequent loss of evidence, and the generic marketing methods employed by drug companies to promote and distribute DES. Furthermore, any evidence the plaintiff might possess or have access to concerning the type of DES taken by her mother, the relevant time period, and the place of ingestion is readily obtainable under modern discovery procedures. This is particularly true in the instant case where the defendants have the resources and investigative personnel to pursue all discovery devices. Defendants maintain that the market-share theory of liability will encourage manufacturers who have difficulty proving market share, to implead all other manufacturers since additional defendants will reduce the size of the pro rata share. The experience of courts in other DES cases, however, belies defendants’ apprehension. In fact, the Payton court observed, “in the typical situation, the inquiry narrows down to one or two drug stores and pills that are differentiated in size, shape and color.” Certainly, such evidence is sufficiently specific to enable the majority of DES manufacturers to extricate themselves from the case at the very outset. It would make little sense, then, for a defendant to randomly implead other manufacturers.

Defendants further contend that adoption of a market-share theory of liability by this court would run counter to the important public policy favoring the development and marketing of new drugs cited by the Massachusetts Supreme Judicial Court in Payton. The court disagrees. Imposition of market-share liability for defects or inadequate testing or warnings will likely provide an incentive to product safety. . In addition, the market-share theory would encourage manufacturers to either make their products identifiable or to improve their record-keeping procedures when marketing generic products, in order to avoid market-share liability in the future. “DES and a Proposed Theory of Enterprise Liability“. These considerations are particularly significant where medication is involved. The consumer is virtually helpless to protect herself from serious, sometimes permanent injuries caused by defective drugs.

Finally, defendants urge the court to require DES plaintiffs to make a showing of “due diligence” before they may employ a market-share theory of liability. Specifically, defendants argue that plaintiff should be required to allege that she has made a good faith effort to identify the particular manufacturer of the DES which caused her injuries, and that, through no fault of her own, she has been unable to do so. This requirement appears to have originated in Abel v. Eli Lilly & Co. Defendants contend that without such a requirement, a plaintiff can employ a market-share theory of liability when she discovers that the actual manufacturer is either no longer solvent or in existence.

After carefully considering the effectiveness of a due diligence requirement as a safeguard against abuse by plaintiffs of the market-share theory of liability, the court is persuaded that countervailing considerations mandate rejection of the requirement. First, as noted ante, any identification information in plaintiff’s possession will be available to defendants through discovery. Defendants argue that initially the plaintiff, rather than defendants, will have access to specific information regarding any DES ingested by her mother. Hence, it is argued, plaintiff should be required to show that she has not contributed to the lack of identification evidence by failing to investigate the facts or delaying the filing of her claim. But this argument ignores the fact that identification evidence, under any theory of liability, facilitates the plaintiff’s proof of her claim as much as it does the defendants’ proof of a defense. Plaintiffs have little incentive to conceal identification information. To the extent that they can identify a particular manufacturer, they can employ traditional principles of tort liability which provide, upon proof of the claim, for a 100% recovery of the judgment, as well as a simpler, less conjectural remedy probably more appealing to the average juror. In contrast, market-share liability may result in plaintiffs’ only recovering a portion of the judgment, thereby providing incentive to discover the identity of the actual manufacturer. While the court recognizes the potential for abuse, that is not a sufficiently compelling reason for wholesale adoption of a due diligence requirement. In the court’s opinion, normal discovery procedures will prove effective, in most cases, in weeding out wholly unfounded claims.

Furthermore, several considerations strongly counsel against imposing on plaintiffs a requirement of alleging due diligence. First, there may be situations where a plaintiff, confronted with estrangement from her family or the death of her mother, will be unable to satisfy a court that she has genuinely attempted to locate the manufacturer. The due diligence requirement assumes a relationship of confidence between the plaintiff and her mother which may not exist in many cases. A plaintiff may be in no better position than a defendant to discover individualized identification evidence. While a court undertaking a due diligence inquiry would weigh such factors on a case-by-case basis, we decline to impose a requirement that would, in many situations lead to empty allegations by plaintiffs and time-consuming, often fruitless inquiries by courts.

Lastly, the due diligence requirement is fundamentally at odds with the concept of market-share liability. The market-share theory is premised on the inability of a plaintiff to identify the manufacturer that caused her injury. Requiring a plaintiff to allege and prove due diligence is, in essence, requiring her to explain what already can be presumed: the plaintiff has no cause of action under traditional standards of liability. Defendants assert that elimination of the requirement will encourage plaintiffs to delay prosecution of their claims until identification evidence is lost. However, the market-share theory relieves plaintiffs only of the burden of proving causation in fact. Thus, the evidence which defendants fear will be negligently lost or purposely concealed, will often be plaintiffs’ only evidence of proximate cause and damage. Therefore, plaintiffs have as much incentive to protect such evidence as do defendants. In the court’s view, relevant statutes of limitations can address adequately the problem of unreasonable delay in the prosecution of claims. More importantly, however, the market-share theory adapts the rules of causation and liability to meet the changing needs of product liability litigation. It seems inappropriate, then, to require every plaintiff in every DES case, effectively to prove to the court that prior doctrine will not suffice to govern the obligations of manufacturer to consumer. ” 

… read the full paper McCORMACK v. ABBOTT LABORATORIES, on Leagle.

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