“DES is a form of synthetic estrogen that gained widespread use in the early 1940s. Its uses include hormone replacement during menopause, and the treatment of both senile and gonorrheal vaginitis. By the late 1940s, DES was also being used for the treatment of certain complications of pregnancy. Researchers in the early 1970s, however, discovered a high incidence of clear cell adenocarcinoma, a rare form of cancer, in women exposed to DESin utero. As a result, use of DES during pregnancy ceased. Other reproductive disorders such as a predisposition to miscarry, the injury Sutowski claims, have also been attributed to in utero DES exposure.
SUTOWSKI v. ELI LILLY & CO., Leagle, 199842982OhioSt3d347_1354, Court of Appeals of the State of New York, June 29, 1998.
Because DES was not patented, some two hundred to three hundred different drug companies produced DES in the years it was widely prescribed for use during pregnancy. Due to the long interval between DES use and manifestation of its effects a generation later, the great number of possible manufacturerdefendants, and the primarily generic form of the drug, many DES plaintiffs experienced difficulty identifying the particular manufacturer of the drug taken by their mothers years earlier. Many manufacturers were no longer in business, medical and pharmacy records were lost or destroyed, and memories had dulled over time.
In response to the DES plaintiffs inability to establish causation, the California Supreme Court fashioned the market-share theory of liability in its benchmark decision, Sindell v. Abbott Laboratories (1980). In Sindell, the trial court dismissed a DES plaintiffs complaint because she was unable to identify the particular manufacturer of the drug prescribed for her mother. The supreme court reversed, resolving in the plaintiff’s favor the conflict between the traditional causation requirement of tort law and the desire to insulate an innocent plaintiff from bearing the cost of injury.
The California Supreme Court determined that the theory of alternative liability was inapplicable in light of the plaintiff’s inability to join all DES manufacturers in the action. The court also rejected the theories of concert of action and enterprise liability. Rather than affirming dismissal of the action, the Sindell majority adopted the novel theory of market-share liability proposed in a Fordham Law Review student comment. Id. at 611-613, 163 Cal.Rptr. at 144-146, 607 P.2d at 936-938, citing Comment, Sheiner, DES and a Proposed Theory of Enterprise Liability (1978). The court cited the following three policy considerations in favor of relieving the plaintiff of the burden of proving causation:
- the manufacturer should bear the cost of injury as between it and an innocent plaintiff,
- manufacturers are better able to bear the cost of injury resulting from defective products,
- and because manufacturers are in a better position to discover and prevent product defects and to warn consumers of harmful effects, imposing liability would further ensure product safety.
Recognizing that “there is a possibility that none of the five defendants in this case produced the offending substance,” the California Supreme Court nonetheless justified shifting the burden of proof of causation to the defendant. To this end, the market-share plaintiff need only (1) identify an injury caused by a fungible product, and (2) join in the action a substantial share of the manufacturers of that product. The burden then shifts to each defendant-manufacturer to prove that it did not make the particular injurious product. Id. Market-share liability thus enables a plaintiff who cannot identify a particular tortfeasor to sustain a tort cause of action despite an inability to show proximate causation.
Any manufacturer unable to prove it did not produce the product at issue is held severally liable for the proportion of the plaintiffs awarded damages that reflects the manufacturer’s total share of the product market. In support of this unique method of damage allocation, the court reasoned that a defendant-manufacturer’s percentage share of the total market for a product is proportional to the likelihood that the defendant-manufacturer produced the specific product that injured the plaintiff. The only causation a plaintiff need prove in order to recover under a market-share theory is the causal connection between exposure to, or use of, the product at issue and the injury sustained.
This atypical theory of tort recovery has not gained wide acceptance outside California. Of the courts that have examined market-share liability in the DES context, most have not considered it a plausible theory of recovery.” …
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