1991 DES Case: Conley v. Boyle Drug Co.

Abstract

” We have for review Conley v. Boyle Drug Co.(1985), in which the district court certified the following question as being of great public importance:

DOES FLORIDA RECOGNIZE A CAUSE OF ACTION AGAINST A DEFENDANT FOR MARKETING DEFECTIVE DES WHEN THE PLAINTIFF ADMITTEDLY CANNOT ESTABLISH THAT A PARTICULAR DEFENDANT WAS RESPONSIBLE FOR THE INJURY?

We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and answer the question as restated below in the affirmative:

DOES FLORIDA RECOGNIZE A CAUSE OF ACTION AGAINST A DEFENDANT FOR NEGLIGENTLY MANUFACTURING AND MARKETING DES OF THE TYPE WHICH CAUSED A PLAINTIFF’S INJURY WHEN THE PLAINTIFF AFTER A REASONABLE EFFORT IS UNABLE TO ESTABLISH THAT A PARTICULAR DEFENDANT WAS RESPONSIBLE FOR THE INJURY?

In 1977, Terri Lynn Conley, a Florida resident, was diagnosed as suffering from cervical adenosis, a precancerous growth, and underwent surgery for the removal of most of her cervix, and other precancerous and cancerous tumors. Ms. Conley filed suit against eleven defendants who manufactured and marketed the drug diethylstilbestrol (DES) between 1941, the year the FDA authorized the marketing of DES, and the present. The action was based upon theories of negligence, strict liability, breach of warranty and fraud.

CONLEY v. BOYLE DRUG CO., Leagle, 1990845570So2d275_1843, January 9, 1991.

Ms. Conley alleged that while she was in utero, during a period between June 1955 and March 1956, her mother was administered DES while in Broward County, Florida, and that her cancer was linked to her mother’s ingestion of the drug. She also alleged that the named defendants were the manufacturers of a substantial share of the drug which caused her injury and that the named defendants knew or should have known of the danger the cancer-causing agent contained in the drug presented to unborn children, but failed to warn of this danger. Ms. Conley further alleged that, through no fault of her own, she was unable to identify the manufacturer of the DES ingested by her mother.

In an attempt to state a cause of action despite her inability to identify the specific manufacturer, Ms. Conley urged four theories of liability which relax the traditional requirement of tort law that a plaintiff must identify a specific tortfeasor as causing her injury. The four theories are alternative liability, concert of action, enterprise liability, and the market share theory of liability. The trial court granted various motions to dismiss and motions for judgment on the pleadings because of Ms. Conley’s inability to identify the specific manufacturer of the drug. On appeal, the district court affirmed the trial court’s rulings, stating that

“while this court sympathizes with Ms. Conley, we must conclude that we have no authority to approve a theory of liability which does not require her to pinpoint the specific defendant that caused her injury.” …

…”The district court considered and rejected each of the theories of liability which were proposed by Ms. Conley, concluding that none of them was properly tailored for application in this case. Recognizing that

traditional theories of tort law are inadequate to redress the appellant’s injuries

, the district court suggests that the identification requirement be relaxed in a situation such as that before us. The district court urges this Court to adopt, with some alterations, the “market-share alternate liability” theory adopted by the Washington Supreme Court in Martin v. Abbott Laboratories, (1984).” …

…”We agree with the United States District Court for the District of Massachusetts, which adopted the Martin market-share alternate theory of liability, that “the magnitude of the physical and psychological injuries which are at issue in DES cases counsels toward permitting a remedy under some form of a market-share theory of liability.” McCormack v. Abbott Laboratories, (1985). Adoption of such a theory of liability would not be the first time this Court has recognized the unique circumstances surrounding the injury suffered by the DES plaintiff. We have recognized that, because of the delay between the mother’s ingestion of the drug and the manifestation of the injury to the plaintiff, DES cases must be accorded different treatment than other products liability actions for statute of repose purposes.”…

…”A DES plaintiff who cannot meet the traditional identification requirement may avail herself of this theory of liability by commencing suit against one or more defendants and alleging:

  1. that she has made a reasonable attempt to identify the manufacturer responsible for her injury;
  2. that her mother ingested DES during the pregnancy which resulted in the plaintiff’s birth;
  3. that DES caused the plaintiff’s subsequent injuries;
  4. that the defendant or defendants produced or marketed the type of DES taken by the plaintiff’s mother;
  5. and that the defendant or defendants acted negligently in producing or marketing the DES.

At trial each of these elements must be proven by a preponderance of the evidence. The plaintiff need not allege or prove that a specific defendant produced or marketed the precise DES taken by her mother. The plaintiff need only establish that a defendant produced or marketed the type of DES ingested by her mother. If the plaintiff is unable to allege and prove the type of DES which was taken, as determined by dosage, color, shape, size or markings, she need only allege and prove that the defendant produced or marketed DES for use in preventing miscarriages. Allegations as to the time or the geographic area of distribution are unnecessary. Evidence as to time and area of distribution will be more accessible to the defendants, who may present such evidence in an attempt to either establish their actual share of the market or to exonerate themselves from liability.”…

… read the full paper CONLEY v. BOYLE DRUG CO., on Leagle.

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