“Plaintiffs, William Bowe and Catherine Bowe, individually and as parents and next friends of Andrew Bowe, a minor, appeal the circuit court orders which dismissed their complaint with prejudice, denied their motion to file a first amended complaint, and denied their motion to reconsider these orders.
For the reasons which follow, we find that the trial court abused its discretion in denying plaintiffs an opportunity to amend their complaint.
BOWE v. ABBOTT LABORATORIES, INC., Leagle, 1992831608NE2d223_1797, December 16, 1992.
Plaintiffs seek relief for injuries allegedly sustained as a result of exposure to diethylstilbestrol (“DES”). They filed their complaint against numerous (151) DES manufacturers and distributors, and set forth their claim as a negligence action under the theory of market share liability.
After the Illinois Supreme Court rejected market share liability as a proper basis for identifying the tortfeasor in Smith v. Eli Lilly & Co. (1990), plaintiffs attempted to file an amended complaint under the theory of alternative liability.
A fundamental element in a negligence or strict liability action is the burden placed upon the plaintiff to identify the defendant who caused the alleged harm or injury. The identification element of causation serves to assign blame to culpable parties and to limit the scope of potential liability.
The reoccurring problem in DES cases has been the inability of the plaintiffs to identify the particular DES manufacturer which produced the drug which caused their injuries to establish the causation-in-fact requirement in tort. The identification problem is exacerbated by the extended passage of time since the ingestion of the injury-producing DES, the unavailability of pertinent records, and the disappearance of DES producing companies due to mergers, acquisitions, dissolution, and all the other reasons for going out of business. Consequently, courts throughout the country created certain exceptions to allow a plaintiff to shift to a defendant or a group of defendants the burden of proof or the burden of persuasion on this issue. The theories of market share liability and alternative liability are two exceptions advanced to overcome the difficulty, if not impossibility, of tracing and identifying the specific manufacturer of the injury-producing DES.
In essence, the theory of market share imposes liability on manufacturers which may have produced or marketed DES and apportions damages in some manner consistent with the manufacturer’s share of the market. The four States which have adopted some version of the market share liability theory (California, New York, Washington, and Wisconsin) do not agree on its application or the remedy.
The theory of alternative liability applies where two or more defendants act tortiously toward a plaintiff who, through no fault of her own, cannot identify which one of the joined defendants caused the injury. The burden of proof shifts to each defendant to prove his innocence.” …
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