DES Cases and Identification of Parties

ABSTRACT

One of the most interesting legal issues in connection with identifying the potential parties to a toxic substances occurs when a plaintiff is aware of the particular agent that caused harm, but cannot establish a causal connection between that agent and a specific defendant In Ryan v. Eli Lilly & Co., the plaintiff alleged that she suffered a pre-cancerous condition caused by prenatal exposure to diethylstilbestrol taken by her mother during pregnancy. She could not however, identify the specific drug company that manufactured and sold the drug ingested by her mother. She sought to maintain suit against various manufacturers of DES under theories of alternative liability and market share liability. Although the court granted the defendants’ motion for summary judgment based upon her failure to identify the manufacturer of the drug taken by her mother, each of these theories may have potential application in other toxic substances cases where a plaintiff has similar problems in identifying a defendant.

Toxic Substances Litigation in the Fourth Circuit, University of Richmond, Law Review Volume 16, Winter 1982.

There are any number of techniques for establishing join torts and several liability including; vicarious liability, common duty; concurrent causation of a single, indivisible result which neither cause would have accomplished alone; concurrent causation of a single, indivisible result which either would have caused alone; damage of the same kind which is difficult to apportion; and acts innocent in themselves that together cause damage. Alternative liability is a common approach. The typical application of this theory occurs in the context of two or more tortfeasors who combine to bring about harm to a plaintiff such as two hunters who fire rifles at the same time, one of whom shoots at plaintiff. The alternative liability doctrine allows the plaintiff to shift the burden of proof to the defendants to establish which one caused the alleged harm. If the burden is not met both defendants will be jointly liable. The application of this theory to DES cases has generally been limited because of the following arguments: there are a large number of potential defendants and not all of them are brought into the lawsuit; the defendants do not have any greater access to information concerning who sold the drug and are dealing with the same level of uncertainty as the plaintiff; there is no specific information that any one of the name defendants sold the drug that allegedly caused the harm; and the activities of the defendants are different in time and place.

Concert of action is another theory that may be used t solve a plaintiff’s identification problem. Under this approach a group of defendants may be liable if they act in concert pursuant to a common design, knowingly give substantial assistance to others engaged in breaching a duty to give substantial assistance while breaching a separate duty to a plaintiff. The typically cited example of concert of action involves a suit brought by an innocent person who is injured as a result of a drag race. The specific facts connected with defendants’ actions are usually controlling and courts have been inconsistent in applying this theory in DES cases. Reasons cited for not applying this theory have included lack of evidence of anti-social behavior, passage of time between conduct complained of and subsequent activities, lack of tacit understanding or a common plan, joinder of fewer than all potential defendants, large numbers of defendants and evidence only of mere manufacturing activities with similar economic results. On the other hand, one jury has found that there was sufficient evidence of concerted action to hold the defendant manufacturers liable for failing to make sufficient tests and for marketing DES without adequate warnings.

Closely related to concert of action is a theory of civil conspiracy also considered in Ryan v. Eli Lilly & Co. Plaintiffs alleged that the named manufacturers of DES conspired to fraudulently misrepresent the benefits of DES or acquiesed in such misrepresentation. On motion for summary judgment the court found that there was no evidence of an agreement by the named defendants to commit a criminal act or intentional tort pursuant to a common scheme.

Other plaintiffs have suggested that there is a concept of “enterprise liability” that should be appropriate for assisting plaintiffs to identify defendants in these kinds of cases. This type of enterprise liability should be distinguished from the larger social theory that enterprises should bear the risk of loss for all harm caused by that enterprise. This theory proposes that various overwhelming social policies would be better served by shifting the risk of loss to an offending industry as a whole rather than maintaining the risk of loss on injured consumers. In the DES cases there has been no support for this approach for a number of reasons including the large number of defendants, the presence of pervasive governmental regulation, and a dearth of legal precedent.

The most recent suggestion by plaintiffs to surmount the difficulties of identifying defendants has been for “market share liability”. According to this theory, if a plaintiff suffered harm caused by a toxic substance but cannot identify the manufacturer of that substance, then the plaintiff may sue a substantial portion of the entire industry producing the substance and recover damages to be paid by each manufacturer in proportion to respective shares of the market for that substance. This doctrine is based upon the express social policies of providing the most appropriate incentives for product safety and of placing liability on the parties most capable of bearing compensation costs. Objections to this theory have included the lack of precedent, unfairness to some defendants and plaintiffs, and that it is counter to such social policies as the encouragement of medical research.

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