Tag: Judith Sindell

In Sindell v. Abbott Laboratories, the California Supreme Court allowed a cause of action against a group of manufacturers of the drug diethylstilbestrol (DES) even though the plaintiff was unable to identify which manufacturer had supplied the drugs that plaintiff’s mother had taken to prevent a miscarriage. The decision is an attempt by the court to provide victims of latent product defects a means of recovery where they would otherwise be unable to establish causation because of prolonged delay in injury manifestation. In doing so, Sindell departs from traditional common law recovery requirements and raises numerous problems in its application.

Part I of this Note briefly describes the case. Part II discusses existing tort theories which the Sindell court could have adopted to allow a cause of action for DES induced injuries and explains why these theories were not suitable. Part III analyzes the market share cause of action created by the court, examining problems in defining the essential requirements of the theory and potentially faulty factual assumptions upon which the action is based. Part IV examines the market share action from a broader perspective and considers its impact on conflicting social policies that the court failed to expressly consider. It concludes that Sindell’s market share approach to liability may produce significant undesirable social costs.

THE CASE

Sindell v. Abbott Laboratories: A Market Share Approach to DES Causation, California Law Review, Volume 69 | Issue 4 Article 12, July 1981.

Plaintiff Judith Sindell brought a class action suit against eleven drug manufacturers for personal injuries sustained as a result of prenatal exposure to DES marketed by the defendants. The complaint alleged that the manufacturers had negligently manufactured, marketed, and promoted DES as a safe drug without adequate testing or monitoring and that they had collaborated in marketing DES, relied upon each other’s tests, and adhered to an industrywide safety standard. Additionally, the complaint predicated liability on theories of strict liability, violation of express and implied warranties, fraud, misbranding, conspiracy, and lack of consent. The trial court sustained the defendants’ demurrers and dismissed the action on the basis that the plaintiff could not identify which DES manufacturer had produced the drug to which she had been exposed.

The supreme court reversed the trial court’s dismissal of plaintiff’s action. Justice Mosk, writing for the majority, announced a new cause of action which dispensed with any requirement that plaintiff identify the particular manufacturer that supplied DES to plaintiff’s mother. Rather, each defendant would be liable for the portion of plaintiff’s damages equal to that defendant’s percentage share of the DES market. The court reasoned that when the producers of a substantial share of the market are joined as defendants in all such cases, each defendant’s total liability will be roughly equal to what would be the case if perfect identification were possible in all cases.

In reaching the conclusion that a new approach was necessary, the court examined three other possible theories of liability: “alternative liability” based on Summers v. Tice, “concert of action” liability, and “enterprise liability” based on Hall v. E.Z Du Pont de Nemours & Co. Although the court drew inspiration in part from all three theories, which shared an underlying policy goal of protecting plaintiffs in the face of unidentifiable tortfeasors, and described the market share approach as a modification of the rule of Summers, it concluded that none of them alone was adequate for a fair judicial treatment of the DES problem.

ANALYSIS OF EXISTING THEORIES

One of the basic rules of American tort law is that a plaintiff cannot recover absent a showing that injury resulted from some act or omission of the defendant. 6 Over the years,, however, courts have recognized the potential inequity in leaving a plaintiff uncompensated simply because fortuitous circumstances render identification of the tortfeasor impossible. As a result, a number of exceptions have emerged.

Alternative Liability

In the landmark case of Summers v. Tice, the California Supreme Court established the principle of alternative liability. Summers was injured when two hunters negligently shot in his direction. Although it was impossible to determine whose shot actually caused the injury, the court held both defendants jointly and severally liable for all the damages. The court observed that if Summers were required to establish identity, both defendants would likely escape liability since it was equally probable that either one was responsible. In order to put the loss on the culpable shooters rather than on the innocent plaintiff, the court shifted the burden of proof of identifying the wrongdoer to the defendants, “each to absolve himself if he can.”

The Sindell court held, however, that liability could not properly be imposed in the DES context solely on the basis of Summers. Unlike Summers, the Sindell defendants come from a large ill-defined class of as many as two hundred companies which produced DES for a variety of uses under at least seventy different trade names. If the probability that any one of the defendants supplied the injury-causing drug is measured by taking the reciprocal of the number of possible tortfeasors, then the possibility that the actual supplier of DES to Sindell’s mother was before the court is quite small. The court concluded that it would be unfair to require each defendant to exonerate itself when there was a substantial likelihood that none of the defendants joined in the action actually made the DES that caused the injury. The court asserted that there was “no rational basis on which to infer” that any of the manufacturer-defendants supplied the drug to plaintiff’s mother. Yet if the plaintiff actually joined producers of more than ninety percent of the DES market as she alleged, then there was a ninety percent chance that one of the defendants was the actual supplier. In this instance, the court’s rejection of alternative liability based on the great number of DES manufacturers is not convincing.

There is, however, another reason for avoiding a blind acceptance of alternative liability for DES litigation. Summers imposed joint and several liability, holding each of the hunters liable for the full amount of damages, since the two were equally likely to have caused the injury. In a DES case there are often many defendants who supplied widely varying amounts of the drug. To treat large and small producers as equal contributors to the harm suffered by plaintiff seems manifestly unfair.

Concert of Action

A second theory advanced by Sindell and by other DES plaintiffs is known as concert of action. The classic concert of action case is the illegal drag race in which a bystander is injured by one of the participants. The person may sue any or all of the participants and they are jointly and severally liable for her injuries. All the plaintiff need allege is that each defendant acted pursuant to a common design or gave substantial assistance or encouragement to an actor whose conduct caused the harm. An express agreement is not necessary; a tacit understanding will suffice, and this may be shown by the parallel actions of the defendants.

Although concert of action is not expressly designed to eliminate the identification problem, it can apply to situations in which the immediate injury-causing agent is unknown. If the tortious event is the group activity itself, then any participant will be liable regardless of whether plaintiff can point to the immediate wrongdoer. For example, if plaintiff is not sure which driver in the illegal drag race caused the injury, she may still proceed to sue some or all of the participants. The action, however, is limited by the requirement of showing some sort of understanding by which all the defendants are implicated in the tortious act.

The Sindell court rejected the use of a concert of action theory to impose liability. While the court recognized considerable parallel acts among industry members, it held that application of concerted action to the DES context would represent too great an expansion in the doctrine. Some of the parallel acts among industry members were dictated by Food and Drug Administration (FDA) regulations. The court refused to imply a tacit understanding from the defendants’ compliance with federal regulations controlling the manufacture of DES or from conformity to industry marketing practices. Moreover, there was no basis for finding that each defendant knew other defendants were acting tortiously toward the plaintiff, nor that they assisted or encouraged one another to inadequately test DES.

Enterprise Liability

The federal district court case of Hall v. E.1 du Pont de Nemours & Co. is the basis of a third theory called enterprise liability. Thirteen children injured by exploding blasting caps in separate accidents brought suit against six blasting cap manufacturers and their trade association. The evidence showed that the defendants, constituting virtually the entire industry, had adhered to an industrywide safety standard, had delegated safety design and investigation to the association, and had cooperated on an industrywide basis in the design and manufacture of blasting caps. These facts showed that the defendants contributed to the risks in a manner akin to concerted action. Therefore, if the plaintiffs could establish that the caps were produced by any of the defendants, then the burden of proof to identify which defendant caused the injury would shift to the defendants.

The supreme court rejected the enterprise liability theory suggested by Hall. That case had specifically recognized that its holding should be limited to an industry comprising only a small number of units, all or most of which were joined in the suit. In Sindell, the court was faced with approximately two hundred manufacturers of DES, of whom only eleven were joined, in contrast with the six blasting cap defendants who made up nearly the entire industry in Hall. Moreover, the defendants in Hall had delegated safety standards to their trade association whereas the DES manufacturers had not. The Sindell court also observed that the federal government plays a pervasive role in formulating criteria for the testing and marketing of new drugs, and that it would be unfair to impose liability on a manufacturer who did not supply the drug to plaintiff simply because it had followed FDA standards. But while this unfairness was sufficient to prevent the application of enterprise liability theory, the court noted that adherence to those FDA standards would not absolve a manufacturer of any liability to which it would otherwise be subject.

ANALYSIS OF THE MARKET SHARE LIABILITY THEORY

The Theory

Having concluded that existing tort mechanisms were not suited to providing recovery in the DES context, the Sindell court fashioned a new theory to allow DES daughters a cause of action for their injuries. Stressing the gravity of the injury and the ability of the common law to adapt to the changing structure of society, the court pointed to several broad policy arguments favoring imposition of liability. Assuming for purposes of appeal that all DES defendants were negligent, the court adopted the Summers rationale that as between culpable defendants and an innocent plaintiff, defendants should bear the loss caused by their own conduct. Furthermore, defendant manufacturers were better able to guard against defects, to warn the public of side effects, and to insure against losses resulting from introducing defective products into the stream of commerce. The court believed that this was particularly true with respect to drugs since the consumer is virtually incapable of recognizing and protecting against any defects. Additionally, although less clearly articulated, the court felt that the mere fortuity that a defect does not manifest itself for a prolonged period, thus making it difficult or impossible for plaintiffs to identify the supplier, was not a principled reason for shielding the defendant from liability.

Under the new theory each manufacturer is liable for a percentage of plaintiff’s damages based on its market share of the DES production used for prevention of miscarriages. To take advantage of this new approach to causation, plaintiff must join the producers of a substantial share of the DES market. If the defective drug caused plaintiffs injuries and if all defendants produced the drug from an identical formula, then plaintiffs suit will not be barred for failure to identify the particular manufacturer of DES in her case. A manufacturer can escape liability, however, by demonstrating that it could not have made the product that caused plaintiffs injuries.

The court argued that market share liability would produce the same result as would occur if every DES plaintiff could identify a particular manufacturer. In a world of perfect identification, a producer of twenty percent of DES sold would be a sole defendant in approximately twenty percent of all cases. Under the market share approach, the same supplier would now be a defendant in all DES cases but would be liable only for twenty percent of the damages. The process of matching percentages serves as a fairness justification for the decision because liability is limited to what would hypothetically occur if identification were possible. Total costs, including all administrative costs, under Sindell could potentially be much greater than costs in identification suits, because each manufacturer will be a party to more suits under the market share approach than in a perfect identification world. The court, however, focused only on matching liabilities, rather than total costs, and concluded that although in practice the correlation would not be perfect because market shares were probably impossible to determine exactly, any variation was within the limits commonly tolerated by the law.

Although the Sindell approach has superficial appeal, it leaves many unresolved questions. The court ignored the extreme practical difficulties in actually defining market shares empirically by dismissing them as “largely matters of proof.” In making joinder of a substantial share of the market a condition of bringing suit, the court provided little guidance for determining when the requirement would be met. The extent of liability under the market share theory is equally unclear: the joined defendants may be liable for one hundred percent of plaintiff s damages or merely for the aggregate amount of their respective market shares.

How is a Market Share Defined?

In order to calculate market shares, the scope of the market itself must be defined in terms of the time period, the geographical area covered, and the range of identifiable product forms included. The only market factor mentioned by the court was time-if a manufacturer could prove that it did not sell DES during the period of time that plaintiff’s mother purchased the drug, then that manufacturer could be dismissed from the suit. The reason for considering this factor is that market share is used as a theoretical proxy for the likelihood that a defendant supplied the product which allegedly injured plaintiff.

A similar analysis can be made with respect to geographical area. Theoretically, each DES plaintiff should sue only those producers who supplied the drug to an area in which plaintiff’s mother lived when plaintiff was in utero. Whether the appropriate area is local, state, regional, or national in scope depends on the structure of the DES market and the methods of distribution of DES. For producers who supplied only limited areas, a decision as to relevant market size will determine who is a proper defendant in many cases. For example, a supplier only to Detroit would not be liable to any plaintiffs exposed outside of the Detroit area. However, such a producer would have large liability for suits brought by plaintiffs exposed to DES in Detroit.

Use of a nationwide market has several advantages over other market sizes. First, calculation of market shares will be less complicated for a national market than for a state or local market because geographical data is very scarce . Second, national shares will be less likely to generate inconsistent case by case determinations of the relevant market size and the associated percentage breakdown of damages. Third, the DES market is dominated by a few very large producers who sold DES throughout the country-it has been suggested that five or six suppliers made ninety percent of the total DES production. Thus, percentage market shares for the industry leaders may not vary greatly with respect to market size.

However, when small local producers are included, the national market approach may result in unfair distributions of damages. Suppose defendant D is a small local producer of DES who supplied sixty percent of the Detroit market and that the national giants furnished the remaining forty percent. If plaintiff uses national shares, the D’s maximum liability will be very small because the sixty percent share of the Detroit market will be a very small share of the national market. At the same time, the large companies will pay the bulk of the damages even though the odds are low that plaintiff’s mother used their products in Detroit. The goal of having market share liability mimic what would occur in the hypothetical world of perfect identification suggests that the Detroit case be resolved on a Detroit area market.

A California resident who was exposed to DES in Detroit, however, may not be able to obtain jurisdiction over the Detroit-only supplier. By failing to join a sixty percent supplier in her California suit, plaintiff will not meet the requirement that she sue makers of a substantial share of the relevant market. Even if she could proceed, she would only get forty percent of her damages if each company is only liable for its relevant market share percentage of the award. If the joined defendants are forced to pay all of the damages, however, they will not be able to compel contribution by supplier D in Detroit unless Michigan also recognizes the market share theory of liability; having failed to get contribution from defendant D, the suppliers of forty percent of the Detroit market would pay much more than their share of liability.

There is nothing in Sindell, however, that requires courts to follow any specific definition of market size. Each court can define the scope of the market to fit the needs of a particular case. A court could start with a national market and put the burden on each defendant to show that it could not have made the DES which injured the plaintiff. A local supplier would be dismissed from cases if it could show that none of its product reached outlets in the area in which the plaintiff’s mother lived.6 The hypothetical plaintiff from Detroit may recover much less than her entire damages under this approach if she cannot obtain jurisdiction over the local supplier, but this will occur only if the large companies can succeed in proving the domination by a local producer. This is hightly unlikely because of the strong market position held by the leading drug companies.

Another potential market factor is the identifiable physical characteristics of the product. Plaintiffs mother may be able to remember taking a pill of a certain size, shape, or color. Where this is true the relevant submarket could be defined to include only those manufacturers who produced pills with that particular physical characteristic. Use of such submarkets, however, will cause defendant manufacturers of pills with unique and memorable physical characteristics to be sued more often than other producers. They will be liable for one hundred percent of plaintiffs damages in all cases where the feature is remembered, and also for their market share in cases where no identifying features are recalled. Thus, the goal of matching actual liability with the results expected in a world of perfect identification will not be met if suits based on special submarkets are permitted.

The same possibility of double exposure exists when some plaintiffs can identify the manufacturer of DES that supplied the drug to their mothers. If identification results from one supplier having more detailed records or having used a more direct distribution system to pharmacies, then that supplier will be a defendant more often, assuming that both market share and traditional theories of liability coexist. Only if identification suits are randomly distributed over all manufacturers will the distortion not occur. Because it is likely that identification will be predicated on market behavior unique to specific producers, the existence of both market share suits and traditional suits poses the threat of double liability for some defendants.

There are two ways to avoid this double liability. The first is by adjusting damages among producers after all suits have reached final resolution-a complicated and unlikely event since no court would have authority to make post hoe readjustments of liability. The other solution is to use market share apportionment exclusively and therefore preclude DES suits tied to identification of product characteristics. Even plaintiffs who could identify a particular manufacturer as sole defendant would be forced to rely on the market share approach otherwise a few easily identifiable producers will pay more than their share. Precluding suits based on traditional theories, however, creates several problems. Plaintiffs who fail to obtain jurisdiction over a substantial share of the relevant market may go remediless even though they can identify and obtain jurisdiction over the specific DES producer that supplied the drug. Any other reason for a court’s dismissal of a market share based action will result in the same unfairness to all plaintiffs who could have proceeded on traditional theories of liability.

The Sindell decision does not hold, however, that market share liability is the exclusive remedy for DES plaintiffs. It allows the new approach where defendants “produced a drug from an identical formula and the manufacturer of the DES which caused plaintiff’s injuries cannot be identified.” Where identification is possible the plaintiff may proceed against the identified producer. The tone of the decision suggests that the court would be more willing to tolerate the possibility of imposing excess liability on some suppliers than to deny plaintiffs a cause of action. Furthermore, in breaking new ground in tort causes of action the court should be reluctant to preclude old approaches without more information about whether there will be any significant overlap of market share suits and identification suits.

The Measure of Damages

The court did not clearly specify how each defendant manufacturer’s damages would be measured. One possible approach would make each defendant jointly and severally liable for all of plaintiffs damages. Thus a plaintiff would be compensated for all her injuries regardless of how many manufacturers are joined as defendants because plaintiff could collect her entire judgment from any defendant. A second approach would impose liability solely on the basis of each defendant’s share of the DES market. This pro rata distribution of liability has two consequences:

1. a plaintiff will recover only that percentage of her total damages which is equal to the sum of the market shares of the defendants joined in her suit,
2. and a plaintiff will bear the risk of a defendant’s insolvency because other defendants will not be forced to pay more than their respective market share percentages of damages.

For example, if a plaintiff joined eighty percent of the market and one defendant with a ten percent market share was insolvent, plaintiff’s recovery would be seventy percent of her total damages. In contrast, the joint and several approach would yield a recovery of one hundred percent of the damages, which could be collected from any of the remaining solvent defendants. Although there is language in the Sindell opinion supporting both approaches to liability, this Note concludes that pro rata liability is more consistent with the logic underlying the market share cause of action than is joint and several liability.

There are several indications in the opinion that the court would impose joint and several liability on DES suppliers.

1. First, the Sindell pleadings allege that defendants are jointly and severally liable under each of the several theories offered in the complaint. Since the majority does not unambiguously delete this feature from its new theory, one might infer that joint and several liability is required by the decision.
2. Second, the dissent draws that inference; presumably the majority would have forthrightly dispelled this implication if it were not true.
3. Third, the Sindell decision is based on an expansion of Summers v. Tice, which imposed joint and several liability on the defendant hunters.

The court’s reference to the availability of third party impleader also implies that joint and several liability was intended. If each defendant can be held liable for plaintiff’s total damages, or some variable portion thereof, then defendants will have a strong incentive to join other producers to share the liability. On the other hand, if each defendant is liable only to the extent of its market share percentage of the damages, then it will have little incentive to join other producers since its dollar amount of liability will be the same regardless of the number of defendants.

Moreover, joint and several liability is consistent with the substantial share joinder requirement. The rule that plaintiff must sue producers of a substantial share of the DES market avoids the possibility that a lone defendant might shoulder an entire judgment for lack of success in obtaining contribution from other producers. Both third party impleader and the joinder requirement serve to spread liability among as many defendants as are solvent and amenable to jurisdiction in California.

In describing the market share cause of action, however, the court several times said that damages were to be apportioned in relation to their market share. In answer to the Sindell defendants’ arguments contesting the fairness of the decision to impose liability, Justice Mosk stated:

Most of their arguments, .. are based upon the assumption that one manufacturer would be held responsible for the products of another or for those of all other manufacturers if plaintiff ultimately prevails. But under the rule we adopt, each manufacturer’s liability for an injury would be approximately equivalent to the damages caused by the DES it manufactured.

Since the measure of each defendant’s liability would be its percentage market share of plaintiffs damages and since no defendant is to be responsible for another producer’s product, the Sindell decision requires that market share function as an absolute limit to each defendant’s liability. In contrast, joint and several liability could result in some defendants paying a greater percentage than their market share would dictate. Therefore, the most direct language in the decision concerning liability points to the pro rata market share approach as the appropriate measure of each defendant’s share of the successful plaintiff’s damage recovery.

Moreover, pro rata market share liability is more consistent with the goal of the Sindell decision to reproduce what would occur if identification were possible in all cases. The producer of twenty percent of the market held liable for twenty percent of the damages in all DES suits should pay the same amount as would be paid if twenty percent of plaintiffs could identify that same supplier and recover one hundred percent of their damages. To hold that same supplier jointly and severally liable for one hundred percent of the damages in one hundred percent of all DES suits could increase liability above the total amount that would be imposed in the hypothetical world of perfect identification. Although joint and several liability could generate a result similar to pro rata market share liability when all defendants are solvent and before the court, the court should have held that each supplier’s maximum liability is fixed by its market share in order to ensure that no producers incur excess liability.

The rejection of joint and several liability requires that the court’s remarks about third party crossclaims be re-evaluated. If each defendant is liable only for its market share percentage, then defendants will have little incentive to join other producers except in the rare case in which a defendant will be able to prove that another producer in fact supplied a plaintiffs mother with DES. Thus, third party complaints seeking indemnification are not essential for the Sindell theory. However, since the court very much wanted to ensure that as many DES suppliers as possible would be defendants, its mention of crosscomplaints against additional producers probably reflected the goal of holding the entire industry liable for DES injuries. That goal is more directly served by the substantial share joinder requirement.

The Substantial Share Requirement

Under Sindell, plaintiffs must sue manufacturers of a substantial share of the DES market in order to state a cause of action. The court declined to give a numerical definition to “substantial,” despite the dissent’s criticism that lack of a precise definition left the issue openended. Perhaps the court simply wished to avoid making the new approach too inflexible by specifying a fixed percentage. A more critical issue is why the court imposed the requirement at all.

The court mentioned several reasons for the substantial joinder requirement. First, it noted that joining producers of a large aggregate market share would reduce the likelihood that “the offending producer would escape liability.” This argument reflects the court’s desire to keep the Sindell theory similar to older, well-established notions about tort liability. In Summers v. Tice, for example, the court knew that one of the two hunters fired the shot that hurt the plaintiffs and hence the actual offender would not escape liability.

The court’s second reason for the joinder requirement is that it diminishes the “injustice of shifting the burden of proof to defendants.” Having the major producers in court will facilitate the determination of the dimensions of the relevant market. The greater availability of market information in court will presumably yield a more thorough and accurate picture of DES distribution. The composition of the relevant market may thus indicate which defendants were less likely to have caused the plaintiffs injuries. If a supplier can prove that it did not sell any DES within the relevant market, then it will not be held liable. Furthermore, if a supplier can prove that another defendant in fact made the DES which injured the plaintiff, it will again be relieved of any liability. Thus, the presence of many manufacturers in court will give each one a better opportunity to show that it did not supply the drug to the plaintiff’s mother.

Third, the court argued that the presence of a substantial share of the market “provides a ready means to apportion damages among the defendants.” Although the court again did not elaborate on its underlying reasoning on this point, the argument suggests that having the main suppliers together will simplify the calculation of the market shares that form the basis for each defendant’s liability and will avoid inconsistent determinations which could result from separate actions. Furthermore, dividing the damages in one action will involve lower costs for the parties and the courts than would occur if each producer were sued in a separate case.

The substantial joinder requirement serves other functions which the court did not discuss. It will prevent plaintiffs from forcing settlements against companies with high name recognition, yet small DES production. Because such a company produces very little DES, its market share and hence its ultimate liability would be small, but its litigation expenses as the sole defendant would be substantial. Plaintiffs might be able to force settlements on these defendants if there were no joinder requirement. The potential for forced settlements is much less when there are many defendants because small market share producers can expect the major suppliers to handle much of the defense.

The requirement also serves as a substitute for the element of causation which the plaintiff must show in traditional tort actions. The court has excused DES plaintiffs from identifying the particular supplier whose drug caused her injury, and in effect has apportioned responsibility for all DES injuries to all suppliers. Thus the joinder rule ensures that most of the causal elements are accounted for in court.

Analogizing substantial share joinder to causation raises the issue of how much the plaintiff must prove to satisfy her burden of proof. In order to show that she has joined a substantial share of the market, plaintiff will have to produce some evidence concerning DES production at the time her mother took the drug. If the showing of substantial market share requires plaintiffs to identify approximate market shares for each defendant, Sindell actions may be extremely difficult to maintain. At this time the data is extremely scarce and defendants are likely to be the only ones possessing production and sales figures. Plaintiffs therefore will have to conduct extensive and costly discovery, and if market share data is wholly nonexistent, plaintiffs’ causes of action would be precluded.

The court did not explore how accurate the market share apportionment must be for plaintiffs to recover under this theory. It did say that “the difficulty of apportioning damages among the defendant producers in exact relation to their market share does not seriously militate against the rule we adopt.” Further, it noted that where the data is scarce the jury is to divide the liability “the best it can.” Although these statements indicate that the court will not insist on precise accuracy in determining market shares, the plaintiff must still provide some reasonably good figures on DES production and its ultimate uses in order for the trier of fact to make an estimate. Furthermore, because the logic of the decision depends on market share liability reproducing what would occur in a world of perfect identification, a minimum standard of accuracy is necessary for this goal to be achieved. Otherwise, liability will be arbitrarily divided among defendants and there will be no correlation with what would happen if producers could be identified.

POTENTIAL SOCIAL COSTS OF THE DECISION

The thrust of the analysis in Part III has focused on the court’s failure to define the central elements of market share, substantial share, and the nature of liability and has noted the dependence of the approach on the existence of adequate market data and of the availability of sufficient insurance coverage. This Note has suggested solutions to some of these issues with respect to the DES problem. If the decision is subsequently applied to defective products in other industries in which, unlike the drug industry, market control is not centralized in a few large firms subject to nationwide jurisdiction, precise definition of market share and substantial share will become crucial to the decision’s fairness. Whether market share liability should be applied in other contexts, therefore, cannot be answered solely on the basis of whether the theory operates fairly in the DES context. Before applying Sindell to other industries, this Note cautions that the market structure of those industries must be evaluated to determine if special obstacles to fairness might exist.

Sindell’s potentially enormous reach may both inspire positive developments in the product safety area and pose significant social policy problems that the court might not have considered carefully. On the one hand, the decision promotes several broad policies underlying all of tort law. It will result in loss spreading by imposing liability on companies that can insure against such losses and that can pass along losses to those who use the product by increasing prices. In addition, the decision will encourage investment by manufacturers in product safety. Finally, the decision marks a commendable attempt at prohibiting fortuitous circumstances from shielding a negligent defendant from liability which in fairness it should bear.

On the other hand, however, Sindell’s impact on the drug industry and specifically on consumers of pharmaceutical products may not be consistent with other competing social policies. Sindell may have two types of impact on the drug industry and consumers. First, and most importantly, imposing liability for DES injuries nearly a decade after the FDA banned use of DES as a miscarriage preventive will require drug companies to spread their losses over other product lines. This means that drug prices in general will rise, including those for safe, beneficial drugs. Moreover, since part of this increase will result from increased insurance costs, and since insurance rates are set on a nation-wide basis, drug prices will be adversely affected throughout the country. Sindell therefore will conflict with the social policy of minimizing increases in health care costs, especially if market share liability results in higher administrative costs than would traditional forms of recovery in a world of perfect identification.

Not only might drug prices in general rise, but actual consumption may be curtailed as consumers respond to price increases by purchasing less. This price response of consumers is one of the justifications for imposing liability on producers because use of dangerous products is discouraged. Price increases, however, cannot be confined to DES because it is no longer used as a miscarriage preventive. To the extent manufacturers spread DES liability costs to other drugs, consumption in general may be discouraged. Sindell therefore may have a socially undesirable effect on consumption of safe, beneficial pharmaceuticals which by definition are socially useful.

The second adverse impact Sindell may have is to deter the rapid development and marketing of new drugs. The decision will encourage longer periods of testing than was customary when DES was first marketed because manufacturers will have more economic incentives to eliminate unsafe drugs. Longer testing, however, is not beneficial in and of itself. The cost from delay in marketing due to extra testing, in terms of continued suffering and lives lost, must be weighed against the likelihood that adverse side effects of the drug will be discovered through longer testing. A negligence standard theoretically forces manufacturers to strike the proper balance. Sindell, therefore, to the extent it simply avoids the identification problem and imposes liability for negligent behavior should encourage striking the proper balance. The problem that Sindell poses, however, is that manufacturers may tend to overvalue liability risks and engage in excessive testing if market share liability results in greater liability than what liability would be if perfect identification were possible. As the Sindell court itself recognized, long run matching will not be perfect. How imperfect it will be depends upon a number of factors, including whether joint and several liability is imposed and how the industry market is actually found to be structured within an area. Under the best possible scenario long run matching may be quite good. However, one may also envision scenarios in which lower court interpretations of the ambiguities left by Sindell, in combination with real world facts different from those assumed by the Sindell court, create major distortions in matching.

This problem of overtesting may be avoided by the incentive Sindell supplies for manufacturers to keep better records and thus avoid market share liability altogether. Whether this actually happens, however, will depend on whether it costs more to test than it does to keep records. Large producers may have to keep extremely detailed records if they are to escape market share liability. This is because small producers may have an incentive to not keep any records or differentiate their product in any way from those of large producers, in the hope that in market share actions they would not even be sued since their small market share would not make joining them worthwhile. Keeping detailed records, however, may be both complicated and exceedingly costly given the present structure of the drug distribution system with its thousands of physicians, pharmacies, and middlemen. This could be especially true with respect to nonprescription drugs since there is presently no control over who purchases them. However, since nonprescription drugs tend to have less medical value, marketing delay due to prolonged testing may not be particularly socially detrimental. With respect to prescription drugs, though, Sindell may result in an undesirable deterrent to marketing and development.

CONCLUSION

The Sindell case constitutes a major development in tort law. To the extent its market share approach to liability results in manufacturers bearing the cost of their negligent conduct, the decision should be applauded. At present, however, it is difficult to determine what the outcome will be. Unless market shares are properly defined and reliable market share data found to exist, the decision could result in wholly arbitrary assignment of liability. Moreover, there appears to be a basic conflict, which is not likely to be resolved, between liability based on market share, and traditional identification liability. Furthermore, unless damages are measured on the basis of pro rata liability rather than joint and several, serious distortions in long run matching between market share liability and what liability would be in a world of perfect identifiation may result. Since the existence of long run matching goes to the very heart of the decision’s fairness, proper resolution of the measure of damages issue is extremely important.

Depending on how these questions are resolved, Sindell may prove to have serious negative effects both on consumption of safe, beneficial pharmaceuticals and on the lag time between such medications’ development and ultimate marketing. The Sindell decision, therefore, while potentially a vital and commendable step forward in the protection of consumer interests, could conceivably prove under a “worst case” scenario to be a nightmare for both consumers and the pharmaceutical industry. At the very least, the California Supreme Court should hasten to explicate the difficult issues surrounding practical application of market share liability.

Richard P. Murray, 1981

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• Other papers on DES cases and lawsuits.
• Diethylstilbestrol DES studies by topics.

In recent years, courts have encountered serious problems in applying products liability law to fungible defective products. While some plaintiffs injured by fungible products have identified the culpable manufacturers and successfully litigated their claims, other injured parties have faced serious threshold identification difficulties. The nature of fungible products is such that litigants may be unable to identify the manufacturer who supplied the injury-causing product. Unless this problem of identification is overcome, the injured plaintiff is barred from presenting a valid cause of action. Consequently, traditional products liability law theories have offered an inadequate basis for compensation to many plaintiffs injured by defective fungible products.

Market Share Liability: A New Method of Recovery for D.E.S. Litigants, Catholic University Law Review, Volume 30 Issue 3 Spring 1981 Article 8, 1981.

Litigation involving diethystilbestrol (DES) illustrates the current problems in applying traditional products liability law to fungible defective products. Originally distributed in 1947 to prevent complications during pregnancy, DES was later recognized as a cause of vaginal abnormalities in the daughters of women who took the drug. Many of these daughters are now seeking to recover damages from drug manufacturers for injuries sustained as a result of the maternal ingestion of DES during pregnancy. These plaintiffs claim that the pharmaceutical companies negligently manufactured and marketed DES without adequate testing; however, most have been unable to identify the specific manufacturer of the DES ingested by their mothers. As a result, plaintiffs have been forced to proceed under one or more of three existing theories of liability applied when the identity of the injury-causing defendant is uncertain: alternative liability; concert of action; or industry-wide liability.

Courts, however, have generally been unwilling to apply these theories to DES cases. Among the reasons given for finding these theories inapplicable to DES cases are the number of defendants involved in the suits, the failure of all potential guilty parties to be joined as defendants, and the unique characteristics of the pharmaceutical industry. As a result, most plaintiffs have been left with no means of recovery under current products liability theories.

The California Supreme Court has recently proposed a solution to this dilemma in Sindell v. Abbott Laboratories. In this case, the plaintiffs brought a class action against eleven pharmaceutical companies, seeking damages for injuries sustained as a result of their mothers’ consumption of DES during pregnancy. Although the plaintiffs failed to identify the specific manufacturers of the DES actually taken by their mothers, they suggested that liability could be based on one of the three traditional theories of liability. The court refused to apply any of these theories, but it enunciated a new basis for liability upon which the action could be tried. Basing its decision on a modification of the alternative liability theory, the court held that the plaintiffs would be allowed to recover upon a showing that the manufacturers, in the aggregate, produced a substantial percentage of the drug causing the plaintiffs’ injuries. Under the ruling, each manufacturer would be liable for damages proportionate to its share of the market unless the manufacturer could demonstrate that it did not produce the drug which induced the plaintiffs’ injuries. The court concluded that under this approach, each manufacturer’s liability would approximate the damages caused by its product.

The controversial theory of liability espoused in Sindell represents a dramatic breakthrough for DES victims. Moreover, this theory of market share liability could extend to cases which involve other fungible products and an unidentifiable manufacturer. Under this theory, plaintiffs need prove only that the defendants were manufacturers of the same defective product which caused their injury and that the joined defendants represent a substantial portion of the market for the product in question. Plaintiffs need not prove which individual defendant manufactured the specific injury-causing product, nor must they rely on an expanded judicial interpretation of the traditional theories of liability to support a valid cause of action. Essentially, the Sindell court made a policy decision to forgo rigid adherence to prior doctrines and instead to design a remedy which could meet the needs of modern plaintiffs injured by fungible products like DES.

This Note will examine the various theories upon which DES plaintiffs have advanced their claims prior to Sindell and will explain why these theories have not provided plaintiffs with a recognized cause of action. It will then examine the theory of market share liability enunciated in Sindell and assess it in conjunction with the policy considerations underlying products liability law. Finally, this Note will conclude that the theory of market share liability is a novel yet well-founded approach to litigation involving fungible defective products, consistent with the prior doctrine of products liability law, and represents a necessary expansion of tort liability in today’s complex industrial society.

HISTORY OF DES

In 1947, the Food and Drug Administration (FDA) approved the distribution of DES on an experimental basis for use in the prevention and treatment of complications during pregnancy. This approval was based on two studies attesting to the safety and effectiveness of DES in preventing pregnancy problems. Between 1947 and 1952, approximately eighty five companies manufactured DES. In 1952, the FDA declared that DES was no longer a new drug and was considered safe for general use. This declaration meant that any manufacturer could market the drug without submitting additional data to the FDA concerning its safety and effectiveness. By the end of that year, no fewer than 191 companies were manufacturing and distributing DES.

In 1971, two medical studies associated an increase in a rare form of vaginal cancer called adenocarcinoma with the maternal ingestion of DES during pregnancy. Pursuant to these findings, the FDA required that pregnancy be listed by the manufacturers of DES as a contraindication to the use of the drug and that all other estrogens include a warning on their labels concerning the association between DES and vaginal cancer. Additional studies have since confirmed this association. Although DES is no longer used during pregnancy, it is still prescribed for treatment of unusual menopausal symptoms and of certain kinds of cancer of the breast and prostate.

It is estimated that between one-half million and three million women were exposed to DES between 1947 and 1971. A large number of these women remain unaware of that exposure and of the potential complications. Although only a small percentage of DES daughters have contracted adenocarcinoma, the vast majority of the DES women suffer from adenosis and must be constantly monitored by a physician.

THEORIES OF LIABILITY PRIOR TO SINDELL

It is estimated that more than one thousand DES cases are presently pending nationwide, with most of the major pharmaceutical companies joined as defendants. Prior to the Sindell decision, few DES plaintiffs had succeeded in presenting a valid cause of action against the drug companies for injuries sustained from the maternal ingestion of the drug. Various procedural barriers such as the statute of limitations, failure to obtain class action certification, in personam jurisdiction, and the nonapplicability of the successor-liability doctrine, resulted in early dismissal of many cases. Some plaintiffs, including Ms. Sindell, have had difficulty asserting a valid cause of action under one of the traditional theories of liability because causation is difficult to establish when no specific manufacturer of the injury-causing product can be identified. A review of the theories of alternative liability, concert of action, and industry-wide liability provides a foundation to determine whether the market share liability theory presented in Sindell is a consistent development in products liability law.

Alternative Liability

The alternative liability theory is one which provides a plaintiff with a means to hold more than one defendant liable when the specific source of the injury is uncertain. Under this theory, a plaintiff who cannot identify which one of multiple defendants caused an injury may shift the burden of proof to the defendants to show that they were not responsible for the plaintiff’s injuries. The theory is applied to cases in which the plaintiff proves that each defendant acted tortiously and that the harm suffered by the plaintiff resulted from the conduct of one of the defendants. Alternative liability is premised upon the rationale that proven wrongdoers should not escape liability merely because a plaintiff is unable to identify which defendant actually caused the injury. When the burden of proof is shifted, each defendant has the opportunity to exonerate himself by submitting proof that he could not have caused the plaintiffs injury. Shifting the burden of proof in such situations is justified by the presumption that a defendant would normally be in a far better position than the plaintiff to offer evidence establishing that another defendant caused the injury. Traditionally, this theory has been limited to cases where all of the potential tortfeasors have been joined as defendants and where the conduct occurred simultaneously and created substantially the same risk. These requirements preclude the possibility that one who actually caused the harm to the plaintiff might escape liability by not being joined as a defendant in the action.

The classic illustration of the alternative liability theory is embodied in Summers v. Tice. In that case, each of the defendants had simultaneously and negligently shot in the direction of the plaintiff during a hunting expedition, and each was forced to bear the burden of proving that the shot which injured the plaintiff was not fired by him. In holding both defendants jointly and severally liable, the California Supreme Court made a policy determination that a plaintiff should not go without a remedy merely because the defendants’ tortious acts made it impossible for the plaintiff to identify the specific party responsible for causing the harm.

The alternative liability theory has also justified shifting the burden of proving causation in other situations. In Ybarra v. Spangard, another California case, the plaintiff suffered paralysis of his shoulder while undergoing an appendectomy. The court determined that it would be an unfair burden to require the plaintiff, since he was unconscious on an operating table when the injury was sustained, to identify the particular defendant who inflicted his injury. The plaintiff was allowed to join as defendants all those medical personnel responsible for his safety during the operation, and to infer negligence under the doctrine of res ipsa loquitur. The court then shifted the burden of proving causation and disproving negligence to the individual defendants. Once again, the court’s justification for this shifting of the burden of proof was its determination that the plaintiff should not go remediless merely because he could not identify the specific cause of his injury under the circumstances created by the defendants’ conduct.

Furthermore, alternative liability may be used in situations where the plaintiff has suffered indivisible injury through defendants’ independent tortious actions. Multiple automobile collisions are a common example of this situation, as illustrated by Eramdjian v. Interstate Bakery. There the plaintiff was involved in a motorcycle accident, and as he was lying unconscious on the street was subsequently run over and crushed by a truck. The California Court of Appeals held that each defendant must bear the burden of establishing that his acts did not cause the plaintiffs injuries. The court concluded that the wrongdoer should bear the burden of explaining circumstances where he would otherwise escape liability. As these cases illustrate, the alternative liability theory provides a plaintiff with the means to present a valid cause of action when the defendants’ negligence is clear but when there is doubt as to the issue of causation.

Concert of Action

The second theory under which causation may be proved in situations where the identity of the injury-causing defendant is uncertain is concert of action. This theory is applied where a plaintiff seeks to recover damages for injuries caused by a defendant who, by express or tacit agreement, encouraged, cooperated, or actively participated in a common plan or design to commit a tortious act. The plaintiff may elect to sue one, all, or any combination of participants, each being jointly and severably liable for plaintiffs injuries. Imposition of joint liability is justified by the court’s determination that the causative tortious event was the concerted action in which each of the defendants participated, rather than the actual infliction of injury to the plaintiff.

The most common illustration of concerted action is an illegal drag race where each participant is held liable for any injuries sustained by an innocent bystander, whether or not the particular defendant in fact injured the plaintiff. In Bierczynski v. Rogers, for example, two drivers were participating in such a race when one of their automobiles struck an oncoming automobile driven by the plaintiff. The court held that regardless of which defendant’s automobile actually collided with the plaintiffs, participation in an illegal drag race proved negligence and therefore both participants were liable for injuries sustained by an innocent third person. Similarly, in Sprinkle v. Lemley, the concert of action theory was applied to hold two physicians liable, each for the negligence of the other. The two physicians were held liable for plaintiffs ischemic contracture which resulted from the treatment of a fractured leg. The court noted that the concert of action theory was applied correctly because the acts of one physician were not independent of the other when both physicians treated the patient in concert.

To establish concert of action, the conduct of the defendants must be shown to constitute an agreement to participate in the commission of a tortious act; mere knowledge by one defendant of another defendant’s actions is insufficient. Moreover, each defendant must intend to act in furtherance of the tortious act. Thus, in Duke v. Feldman, the fact that a wife watched her husband assault a third person and subsequently drove him away from the scene was insufficient to impose liability on the wife in an action for civil assault. Absent evidence that she assisted her husband or encouraged the assault, the wife could not be considered a participant in a design to perpetuate the tortious action.

The rationale underlying the concert of action theory is probably more the deterrence of hazardous group behavior than the solution of the problem of identifying the actual injury-producing party. Nevertheless, the theory effectively obviates the need to identify the actual defendant who caused a plaintiff’s injury by holding each defendant liable for substantial encouragement of a tortious act.

The Theory of Industry-Wide Liability

The theory of industry-wide liability is the most recent exception to the general requirement that a plaintiff must identify the actual party causing his injury in order to present a valid cause of action. This theory was suggested in Hall v. El Du Pont De Nemours & Co. , where the court held that there are certain circumstances in which an entire industry may be liable for harm caused by its operations.

The Hall case, commonly known as the “blasting cap case,” arose when the parents of children injured by exploding dynamite blasting caps sought to recover from the manufacturers. The individual blasting caps were neither labeled nor marked with any warning of the potential danger, and the plaintiffs alleged that the defendants, six manufacturers and their trade association, consciously agreed to establish an industry-wide practice of omitting such warnings. This practice, together with the failure of the defendants to take other safety precautions, allegedly created an unreasonable risk of harm which resulted in injuries to their children. The United States District Court for the Eastern District of New York reasoned that under such limited circumstances, industry-wide liability may be imposed. The court stressed that the evidence established that the defendants had jointly controlled the risk through their adherence to an industry-wide standard of safety, and that some functions of safety, including labeling, had been delegated to their trade association. Furthermore, although all the defendant-manufacturers had participated in joint creation of the risk, the specific defendant manufacturing the injury-causing blasting cap could not be identified because the evidence was destroyed in the explosion. In such circumstances, the court reasoned, a shifting of the burden of proof of causation could be justified.

The theory of industry-wide liability combines elements of classic concerted action and alternative liability for use in situations where neither theory would be applicable by itself. The concept of “joint control of the risk” by the defendants in industry-wide liability evolves from the required “agreement” between the defendants in concert of action cases. Under both theories, each defendant’s participation in the tortious event may be regarded as the cause-in-fact of the plaintiffs injury. Liability is imposed on each defendant to deter hazardous group behavior in the future. Joint control of the risk, however, may be proved by evidence of an independent adherence to an industry-wide standard or custom, although such adherence is insufficient to constitute a tacit agreement under the concert of action. This evidence is sufficient to shift the burden of proving causation to the defendants, so that, as in alternative liability, a guilty rather than an innocent party would bear the loss from the failure to meet the burden of proof.

The theory of industry-wide liability is consistent with the general policy considerations of products liability law: namely, to compensate for injuries caused by the use of a defective product and to discourage manufacturers from producing unsafe products. Furthermore, industry-wide liability promotes the theory that losses to society caused by such activity should be internalized by the responsible party to further the social policies of conservation of resources and fair distribution of the cost of accidents among society’s members.

SINDELL v ABBOTT INDUSTRIES: THE NEED FOR A NEW THEORY OF LIABILITY

In 1976, Judith Sindell initiated a class action in a California trial court for personal injuries resulting from her mother’s ingestion of DES during pregnancy. The plaintiff filed her complaint against eleven drug manufacturing companies, and sought to recoVer general damages in the amount of $1,000,000 and punitive damages in the amount of $10,000,000. She also sought equitable relief in the form of an order compelling defendants to inform the public of the risks inherent in DES exposure and to establish appropriate clinics for treatment of DES daughters.

The plaintiff proceeded under eight causes of action, each alleging that the manufacturers were jointly liable because they had acted in concert and in reliance upon each other’s testing and marketing methods to exploit the drug. Since the plaintiff could not identify the manufacturer of the injury-causing drug, the complaint suggested that liability be based on alternative liability, concert of action, or industry-wide liability.

In a well-reasoned and thorough opinion, the California Supreme Court did not apply these theories to the facts of the Sindell case. The court, however, declined to bar the plaintiff from recovery and proceeded to enunciate a novel theory under which Ms. Sindell could proceed with her cause of action. This theory, based upon each manufacturer’s market share of the defective product, will be referred to as “market share liability.”

In Sindell, the plaintiff first claimed to have a valid cause of action under the doctrine of alternative liability. Essentially, the plaintiff averred that the manufacturers had acted tortiously in marketing, manufacturing, and promoting DES, and that this conduct had resulted in injury to the daughters of women who had ingested the drug. Additionally, she argued that had the manufacturers provided adequate warnings to those who ingested the drug, documentation would have existed which, in the case of potential injury resulting from the use of the drug, would have eliminated the uncertainty in identifying the specific manufacturer. Under these circumstances, the plaintiff maintained that the burden of proof should shift from the innocent plaintiff to the negligent defendants. This shift would require the defendants to exonerate themselves by presenting evidence establishing that they could not have manufactured the specific drug ingested by the plaintiffs mother.

The plaintiff sought to analogize her case to Summers v. Tice. In both cases, the defendants committed negligent acts, the plaintiffs were innocent, and the fungible nature of the injury-causing substance made it impossible for the plaintiff to identify which of the negligent defendants had caused the actual damage. Since the plaintiff argued that the manufacturers’ negligence in failing to provide warnings on the drug’s label directly created the identification problem, she contended that application of the theory of alternative liability was even more appropriate here than in the Summers case, where the identity problem was due to the defendants’ simultaneous shooting, not itself tortious conduct.

The plaintiff also compared her case to Haft v. Lone Palm Hotel, where the plaintiff was uncertain as to the cause of the drowning of his son in the defendant’s hotel pool. The Haft court ruled that the lack of evidence of causation was due to defendant’s failure to provide a lifeguard as required by law. The court then shifted to the defendant the burden of proving causation-that its action was not the cause of the boy’s death. In so doing, the court stated that the absence of definite evidence on the issue of causation was a direct and foreseeable result of the defendants’ negligence, and that, under the circumstances, the defendant should bear the burden of proof.

Ms. Sindell asserted that her case presented a similar situation since the defendants’ negligence in not properly labeling the drug as experimental, and in failing to discover or warn of the dangers of DES, had resulted in the plaintiffs mother’s failure to keep adequate records or to remember the identity of the manufacturer which had supplied the DES. Ms. Sindell also addressed economic considerations, contending that the defendants realized cost savings and increased sales through their improper labeling and manufacturing of DES. Accordingly, the plaintiff argued that, as a matter of policy, all customers of the drug companies rather than one particular user of DES should bear the burden of loss resulting from these economies. In presenting this argument, the plaintiff again relied on Haft, in which the court had stated that the burden of the loss should be borne by the entire group benefiting from the cost savings realized by not employing a lifeguard rather than by one particular guest.

After arguing initially that an appropriate situation existed for application of alternative liability, the plaintiff confronted the substantive problems associated with the theory’s use. First, she asserted that the burden of proof should shift to the defendants regardless of their lack of knowledge on the subject of causation. According to the plaintiff, the issue was not whether the defendants had knowledge of the cause of the injury but whether the plaintiffs inability to identify the defendant responsible for her injury was due to the defendant’s conduct in marketing the drug. Second, the plaintiff contended that the alternative liability theory did not require all potential defendants to be before the court, for if a defendant could exonerate himself as a causative factor, he could do so regardless of the number of defendants joined in the action. Moreover, the plaintiff asserted that liability under the theory was joint and several and that the plaintiff could select the party or parties against whom to execute the judgment. Accordingly, an individual defendant’s potential liability would be arguably the same regardless of the number of codefendants in the action.

Finally, the plaintiff argued that even if Summers required all potential defendants to be before the court, the modification of the equitable idemnity rule by the California Supreme Court in American Motorcycle Association v. Superior Court of Los Angeles County rendered this prerequisite unnecessary. After American Motorcycle, the defendants named in the suit could join all other appropriate defendants, thereby gaining the opportunity to recover from their codefendants, according to their percentage of negligence. Consequently, she argued that defendants’ ability to seek indemnity from other jointly liable defendants strengthened her contention that she should not have to bear the undue burden of naming more than a small number of defendants.

The California Supreme Court declined to accept the alternative liability theory presented by the plaintiff. The court first addressed the defendants’ contention that the theory could not be applied because the manufacturers were not in a better position to offer evidence to determine which one caused the injury. However, the court correctly pointed out that the factual circumstances of the Summers case itself precluded an explanation of the cause of the plaintiffs injury.  Thus, although defendants are ordinarily in a better position to offer evidence of causation, application of the alternative liability theory is not foreclosed when they cannot offer such evidence.

The court did find, however, that the alternative liability theory as previously applied could not be the basis for liability in this case. According to Judge Mosk, in applying the traditional theory of causation, the possibility that one of the five defendants joined in the action was actually the supplier of the DES given to the plaintiffs mother was too remote. In support of this conclusion, the court noted that the theory had previously been limited to situations in which all potentially guilty parties were before the court. Without this limitation, the offending party might not be named and therefore could escape liability altogether. Thus, the court concluded that in the Sindell case, where any one of 200 companies could have produced the particular drug ingested by the plaintiffs mother, only five of whom were before the court, application of the alternative liability theory was precluded.

The plaintiff next contended that she could recover under the concert of action theory, alleging that her injury was caused by a tacit understanding among the defendants to act in concert to market, manufacture, and promote DES as a miscarriage preventative. The plaintiff relied on Orser v. George in asserting that under the concert of action theory, her claim was valid even though the possibility existed that none of the named defendants had manufactured the DES actually ingested by her mother. In Orser, a wrongful death action, decedent was killed by a pistol fired by one of defendant’s two companions. The court reversed a summary judgment and held that the rifle-carrying defendant could be found liable for the decedent’s injuries on a concert of action theory. There was evidence in the record that defendant possibly knew that his companions’ conduct breached a duty of care owed to the decedent, and that the defendant substantially assisted or encouraged such tortious conduct.

The Sindell plaintiff argued that as in Orser, no one defendant could be shown to have been the actual cause of the plaintiffs injury; nevertheless, each could be found to have substantially encouraged the tortious conduct of the others. Emphasizing that there existed a common and mutually agreed upon formula for DES, that the drug was marketed by each defendant as a safe and effective product, and that each defendant knew of its generic nature, the plaintiff contended that these facts were sufficient to satisfy the requirements of Orser to proceed under the concert of action theory.

The court found the facts before it inappropriate for application of the concert of action theory. It rejected plaintiff’s argument that the conduct of the defendants, collaborating in and relying upon each other’s inadequate testing and marketing methods and failing to give warnings concerning the hazards of DES, constituted a tacit understanding among the defendants to commit a tortious act against the plaintiff. The court noted that DES was produced from a common and mutually agreed upon formula in compliance with the requirements set forth in the United States Pharmacopoeia and not as a concerted tortious action. The court found further that parallel testing and marketing techniques were characteristic of the drug industry and that a decision rendering such conduct concerted action would be an unjust expansion of the theory. The court distinguished the cases cited by the plaintiff by noting that they involved situations where only one plaintiff was injured; the tortious conduct was by a small number of individuals over a short span of time; and each defendant either directly participated in or encouraged and assisted in the act causing the injury. In Sindell, however, millions of women were allegedly injured; the tortious conduct occurred over a quarter of a century and involved approximately 200 individual drug manufacturers; and there was no evidence that each defendant directly participated in or encouraged and assisted a concerted tortious act.

The plaintiffs final argument alleged that a valid claim existed under the industry-wide theory of joint liability. The plaintiff asserted that there was a considerable risk involved in manufacturing and marketing DES, and that this risk was jointly controlled by the drug manufacturers. Specifically, the plaintiff stated that all DES manufacturers knew of the risk involved in distributing an experimental drug and that the manufacturers tacitly agreed to omit the required FDA warning labels on DES packages. She also asserted that the entire drug industry adhered to an inadequate standard for testing the drug. Furthermore, she contended that the DES manufacturers’ method of promotion encouraged pregnant women, physicians, and pharmacists to rely on the generic nature of the drug and to prescribe it interchangeably. The plaintiff concluded that each manufacturer had benefited from exploitation of the drug by all other manufacturers and that sales of DES had been boosted throughout the industry. In presenting this final argument, the plaintiff relied on Hall v. El Du Pont De Nemours & Co. Essentially, the plaintiff claimed that the facts evidenced parallel behavior among the drug manufacturers and an inference of tacit cooperation as well as independent adherence to a tortious industry-wide standard of behavior. The plaintiff concluded that this joint control of the risk should shift the burden of proving causation to the defendant manufacturers.

The theory of industry-wide liability, termed by the court a “novel approach to the problem, was similarly rejected for a variety of reasons. As interpreted by the court, this theory of liability would be applied when each manufacturer in a particular industry adheres to a standard found to be negligent by a court and also found to be the cause of the plaintiffs injuries. The Sindell court emphasized that the number of producers in the industry and the degree of joint control of the risk are important factors in deciding whether to apply this theory. Thus, in Sindell, where no allegations existed that safety functions had been delegated to a trade association and where the industry was decentralized, the application of the industry-wide theory of liability would be unreasonable. Furthermore, the drug industry itself is regulated by the FDA and the industry standards are defined by the FDA standards to a considerable degree. The court concluded that it would be unfair to impose liability on a manufacturer who did not supply the injury-producing drug because it followed the accepted drug industry standards.

THE SINDELL SOLUTION: THE THEORY OF MARKET SHARE LIABILITY

Having rejected the three prongs of Ms. Sindell’s argument, the California Supreme Court nevertheless stated that it would be unfair to allow her to go without a remedy. It began its formulation of a theory on which the plaintiff could proceed by noting that the policy considerations argued by the plaintiff, together with the court’s view that legal theories should adapt to changes in society, justified the court’s formulation of a novel approach.

The court first recognized that, in contemporary industrial society, there is an ever increasing number of fungible goods available to the consumer. Use of these fungible goods, which often cannot be traced to a specific manufacturer, can leave an injured consumer remediless because identification is impossible and current tort theories cannot be applied. As the court noted, the response by the judicial system to this gap in tort liability can be either to deny recovery or to respond to the changing circumstances by fashioning new theories of recovery through the adaptation of the rules of causation and liability. The court chose the latter alternative and proceeded to modify the alternative liability theory to encompass the situation where the fungible nature of the injury-producing product rendered identification of the manufacturer impossible.

Initially, the court needed to develop a method to decrease the likelihood that the manufacturer actually responsible for the injury would escape liability. It noted that the great probability of the responsible party escaping liability, when only five of a possible 200 defendants were joined in the action, rendered shifting the burden of proof according to the alternative liability doctrine as previously applied impossible. The court determined, however, that rather than approaching the issue of causation in the traditional manner of measuring the possibility of a particular defendant causing the injury by the number of possible defendants, it would measure the likelihood that one specific defendant supplied the injury-producing drug according to the market share of the particular manufacturer. Thus, by the plaintiffs joining the manufacturers with the largest percentage of the market, the probability that the guilty manufacturer would escape liability was significantly decreased. The problem of proving causation was satisfied by becoming a probability rather than a remote possibility. The court noted that this theory could be applied where the plaintiff had joined manufacturers that, in the aggregate, represented a substantial share of the market.

The court then used the market share concept to formulate the extent of liability for which each manufacturer would be responsible. In holding that each defendant would be liable for the proportion of the judgment represented by its share of the market, the court stated that this approach, although not immune from minor discrepancies in the correlation between market share and liability, would render each manufacturer’s liability an approximation of its responsibility for the injuries caused by its own production of the drug.

The market share liability theory developed by the Sindell court was founded upon the policy determination that “as between an innocent plaintiff and negligent defendants, the latter should bear the cost of injury.” The court found that, under the circumstances of the case, neither the plaintiff nor the defendants could be attributed with the failure of providing evidence as to which DES manufacturer actually caused the plaintiffs injuries. The court stated, however, that the conduct of the drug manufacturers in marketing DES “played a significant role in creating the unavailability of proof.” Furthermore, the court asserted that the pharmaceutical industry, through insurance and risk distribution, was better able to absorb the cost of injuries suffered by the plaintiff. The imposition of liability on manufacturers in this case would encourage vigilance in detecting and publicizing the harmful effects of a product. It would also provide compensation for injuries suffered by an unaware and “virtually helpless” consumer. The court concluded that these factors, along with the important policy considerations of products liability law, were determinative in their decision to create a new theory of liability upon which the plaintiff could present a valid cause of action.

CRITICAL ANALYSIS OF THE MARKET SHARE LIABILITY THEORY

On October 14, 1980, the Supreme Court of the United States denied a petition for a writ of certiorari to review the California Supreme Court’s decision in Sindell v. Abbott Laboratories. In filing this petition, the pharmaceutical companies termed the imposition of market share liability as “wholly arbitrary and irrational” and contended that destructive liability and anticompetitive consequences would result from the imposition of this theory. Another critic referred to the decision in Sindell as being “one step further towards the dawn of the age of ‘absolute’ products liability. The criticisms of the Sindell decision, as well as the practical effect of the imposition of market share liability, warrant examination in order to determine the viability of market share liability as a means of closing the gap in products liability law where the identification of the manufacturer of the injury-causing product is virtually impossible.

The first contention raised by the pharmaceutical companies in their petition was that the Sindell decision created unworkable and irrational procedural devices which, in effect, eliminate proof of causation in violation of due process and equal protection. Proof of causation is an essential element in every products liability case, and it serves to prevent the imposition of liability based on pure speculation or conjecture. Accordingly, the pharmaceutical companies maintained that “to establish causation by the joinder of a substantial share of a given market where identification of the responsible party is not now possible” is unreasonable and, in actuality, is a violation of due process. In support of this argument, the companies asserted several arguments as to why the decision is unreasonable. To illustrate this assertion, the manufacturers pose the following hypothetical:

Defendants before the court might consist of Manufacturer A with 40% of the market, Manufacturer B with 4% of the market, and Manufacturer C with 0.4% of the market. Since even plaintiffs would not dispute that the statistical correlation between DES exposure and clear cell adenocarcinoma does not exceed 1.4 per 1,000, there is no way to determine whether sales by the 4% or 0.4% market share defendants might have resulted in any injuries whatsoever. A’s presence does not in any way increase the likelihood that either B or C was the responsible manufacturer.

The manufacturers assert that a particular defendant’s liability will almost always exceed its market share because, although only 44.4% of the market is joined in the hypothetical, the defendants are jointly and severally liable for 100% of the injuries sustained by the plaintiffs. However, the manufacturers failed to point out that they are afforded the opportunity to join the other pharmaceutical companies, not joined in the action, which may have supplied the DES actually ingested by the plaintiff’s mother. Accordingly, if a particular defendant does not wish to absorb the market shares of nonparty DES manufacturers, it may proceed against such manufacturers by way of third party complaint for contribution in accordance with their respective market share. Thus, although Manufacturers A, B, and C may be held liable for more than twice their market shares, they need not bear this total amount unless they forgo the procedural devices available to them.

Second, the manufacturers contended that once a defendant exculpates itself from liability or a plaintiff succeeds in identifying the manufacturer responsible for her injuries, the defendants would bear disproportionate measures of liability. The manufacturers stated that a particular defendant may be found responsible for the entire amount of one plaintiffs injuries upon proof of causation and other elements of the case, and may still be liable for a percentage of another plaintiffs claim. The manufacturers contended that these two cases together would expose a defendant to liability greater than that of its market share.

Each plaintiffs claim, however, is a separate cause of action and each defendant’s liability is determined independently. The fact that a manufacturer is found to be the sole cause of a plaintiffs injury in one cause of action should have no effect on another plaintiffs claim under the market share liability theory. Furthermore, the manufacturers’ contention that this theory would discourage a plaintiff from offering evidence of one manufacturer’s liability is unjustified because even if such evidence did exist, it would most likely be discoverable by the manufacturer and used to exculpate itself from any liability.

The manufacturers next argued that the definitions of the product market and the geographical market would be construed arbitrarily by the courts because the drug was dispensed in such a wide variety of quantities throughout the United States. Leaving factual determination of a defined market to the courts may present a problem in the application of the market share liability theory to particular cases, but definitional problems exist in all areas of law. For example, in the area of antitrust enforcement, courts are called upon to define the relevant market in a particular fact situation. The definition of the relevant market by the court may well determine whether a corporation has violated antitrust regulations. As in the application of antitrust laws, the determination of the “product market” and the “geographical market” in DES cases will be a matter for the court to adjudge according to the particular fact situation and evidence presented. A judicial analysis of the factors to be considered in defining the relevant market for application of the market share liability theory will most likely develop on a case-by-case basis.

The manufacturers also argued that the Sindell court failed to consider adequately the fact that its decision may render the pharmaceutical companies uninsurable and that many firms in the industry, especially the smaller ones, would not be able to absorb the costs of litigation and “random liability” associated with the market share liability theory. These economic considerations have been of major concern to the business and legal communities where courts have contemplated any expansion of products liability law. Although the manufacturers may have overstated the severity of the problem in their petition, it is clear that many pharmaceutical companies may suffer serious financial loss because of the Sindell decision.

One of the manufacturers’ most persuasive arguments against the market share liability theory is that the pharmaceutical industry will be unable to obtain liability insurance for its products. This problem of products liability insurance has increased in recent years, especially within the pharmaceutical industry. The major factor contributing to the increase in cost of liability insurance is the corresponding increase in the number and size of successfully litigated claims by products liability plaintiffs. The drug manufacturers asserted that the market share liability theory would render the insurer unable to determine the scope of exposure for a particular manufacturer if that manufacturer could be compelled to litigate and compensate a plaintiff for injuries sustained by an industry product not directly attributed to the insured manufacturer.

Several solutions have been proposed for dealing with the problems of products liability insurance. First, consumers may be able to absorb the increase in the cost of liability insurance of the manufacturer through an increase in the price of the product. As for those firms that cannot increase their prices because of the competitive market, there exists the option of organizing a collective insurance company to insure against products liability claims asserted against the founding firms. Small firms may also choose to become self-insured by establishing a reserve fund to protect against the risks of its product. Another alternative is for companies, especially those who manufacture products like DES which have the potential for causing injury years after consumption, to purchase claims-made policies rather than the standard occurrence policies for its products. Still another alternative exists in the form of legislative action which may limit the amount of a particular liability claim; make direct governmental insurance available to those industries producing high-risk or fungible products; or allow a periodic payment system for compensation to a successful products liability claimant.

These economic considerations were also noted in the dissenting opinion in Sindell. Justice Richardson stated that the application of the “deep pocket” theory of liability under these circumstances would result in two separate rules of law which would be determined by the wealth of the defendant. Moreover, the dissent stressed that Sindell has the effect of making the pharmaceutical industry “an insurer of all injuries attributable to defective drugs of uncertain or unprovable origin” and this effect could spread to other industries. Recent commentators have expanded on the criticisms expressed in the dissenting opinion, contending that the Sindell decision has created a system of ‘no-fault’ products liability that will result in costly, complicated litigation in many types of products liability suits.

Essentially, such economic considerations are justified and should be given careful study by judges and legislators. The capacity of defendants to bear the loss is one factor traditionally taken into consideration, as are effects on the development of the industry and insurance consequences. However, other factors are given consideration when determining the relative ability of the parties to absorb the injury caused by a defective product, and economic considerations alone should not be the determinative factor when deciding whether a plaintiff may proceed with a cause of action in a products liability case.

The second prong of the manufacturers’ argument in their petition for writ of certiorari was that the court’s decision in Sindell was invalid as contrary to federal drug policies encouraging the development and growth of the pharmaceutical industry, and that imposition of liability under this theory would create an undue burden on interstate commerce. The manufacturers asserted that the immediate effect from the imposition of this “random, destructive liability would be to discourage the development and distribution of new drugs and result in anticompetitive trends. They argued that smaller firms would be unable to continue manufacturing generic drugs under the increased burdens of insurance and litigation costs, and that these increased costs would erect barriers for new firms considering entering the pharmaceutical industry. Essentially, the manufacturers stated that such discouragement of the development of new drugs and discrimination against interstate commerce renders the Sindell decision invalid on a constitutional basis.

There is presently no concrete evidence to determine whether the market share liability theory will result in any of the consequences asserted by the manufacturers. An argument can be made that the drugs which are not produced, or which are delayed in being marketed because of the expansion of liability, may be those which a manufacturer suspects may be harmful to a consumer. Furthermore, those companies that cannot compensate for injuries caused by their product should not be allowed to manufacture and market their products. It can also be argued that there is an important state interest in providing adequate compensation to those citizens injured by defective products. The Sindell decision will likely survive the constitutional challenge that it imposes an undue burden on interstate commerce because the sole objective of the decision is to preserve the health and welfare of citizens and not to protect the economies of the situation.

Another criticism of the Sindell decision is that it represents a radical departure from prior tort liability theories. Justice Richardson, in his dissent, asserted that the majority now expressly abandons the foregoing traditional requirement of some causal connection between the defendants’ act and the plaintiffs’ injury in the creation of its new modified industry-wide tort. Justice Richardson reached this conclusion after analyzing the established principles of causation, stressing that there was no proof in the instant case that the drug manufacturers were responsible for the plaintiffs’ injuries. Furthermore, he alleges that the market share theory will result in the imposition of liability on pure conjecture, that plaintiffs will be able to select the defendants against whom they wish to proceed, and that the majority’s decision will result in “broad and ominous ramifications . . . equally threatening . . . to many other areas of business and commercial activities.

A careful analysis of the historical development of products liability law, especially in California, will show that the Sindell decision is a logical expansion of liability based on the policy determination that “as between an innocent plaintiff and negligent defendants, the latter should bear the loss. In the landmark case of Summers v. Tice, the practical effect of the California court’s decision to shift the burden of proof to the defendants was to impose liability on each defendant. Since both defendants shot simultaneously in the direction of the plaintiff, there was no reason to believe that either defendant could have known which bullet caused the injury to the plaintiff. Similarly, the defendant hotel owners in Haft v. Lone Palm Hotel were no more capable of proving the circumstances of the child’s death than was the plaintiff. These cases are but two illustrations of the broad judicial interpretation given to the requirement that the plaintiff prove a reasonable connection between the negligent act of the defendant and the injury sustained. There is no overriding policy reason why such a broad interpretation of causation should not be applied to areas where a product, rather than the acts of a person, has caused the injury to the plaintiff.

Moreover, the extent of Sindell’s applicability to other industries must be examined. It is feasible that any industry now manufacturing fungible goods may be subject to liability under the market share liability theory. Such industries would most likely include those producing chemical and other pharmaceutical products, agricultural goods, cigarettes, and asbestos. The devastating effects some commentators have predicted would be significantly lessened, however, if judicial application of the theory were to be prudent and appropriate to the fact situation.

The market share liability theory should be applied primarily in cases where the passage of time or some other unusual circumstance renders impossible the identification of the manufacturer of the injury-causing product. Since the overwhelming majority of products liability cases are reported within two years after the date of the occurrence of the injury, this limitation would allow the theory to be applied in only a small number of cases. Moreover, it should be imperative that plaintiffs have no feasible method of ascertaining the identity of the manufacturer, and that this situation is in no part due to the plaintiffs calculated oversight. Sufficient evidence is usually available to the vast majority of products liability claimants to discover the identity of the manufacturer of the injury-causing product. For example, the purchasing records of a chemical substance alleged to have caused injury may divulge the identity of one or more manufacturers who may have supplied the area in which the plaintiff resided at the time of the injury. In cases where there is some degree of loyalty to a particular brand of product, as with cigarettes, a plaintiff should not be allowed to forgo inquiry by the defendants as to the brand of cigarettes the plaintiff normally consumed. Furthermore, if a reasonable person should have known the identity of the product consumed, the plaintiff should not be allowed to plead ignorance and proceed under the market share liability theory.

In addition, the plaintiff should be required to prove that every manufacturer joined in the action under this theory is at fault for marketing a defective product. Injury alone, regardless of the severity, cannot impose liability. Courts should not apply the market share liability theory unless the plaintiff proves that the joined defendants breached their duty to market a safe product or to provide sufficient warnings as to the harmful effects of the product.

Finally, it must also be noted that the market share liability theory as applied in Sindell would allow the joined defendants to join other drug manufacturers who may have produced the injury-causing drug. Without this procedure, plaintiffs would be able to target and litigate against specific manufacturers, thereby allowing other potential defendants to avoid liability. Moreover, these targeted manufacturers may subsequently be liable for all damages awarded to plaintiffs under this theory. It is apparent that unless a similar procedural device exists in the jurisdiction, courts should forgo the application of the market share liability theory or risk a disproportionate number of manufacturers absorbing all litigation and liability costs.

CONCLUSION

The market share liability theory as espoused in Sindell v. Abbott Laboratories is a dramatic breakthrough in products liability law. As in prior situations in which courts have expanded liability, the case presented a unique fact situation in which traditional doctrines could not be readily applied. The California Supreme Court responded to this situation, as it has done in the past, by formulating a new theory of liability rather than leaving the injured plaintiff without a remedy. The policy determination that, as between an innocent plaintiff and negligent defendant, the latter should bear the loss, has once again given rise to an expansion of liability in products liability law. The feasibility of implementing the market share liability theory remains to be seen. Only through a case-by-case determination of the application of the theory can its consequences be realized. Moreover, any adverse effects produced by the application of the theory may well be offset by the fact that many plaintiffs, once barred from recovering for injuries sustained from defective fungible products, are now able to present valid causes of action to proceed against manufacturers of fungible goods.

Patricia A. Meagher, 1981.

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INTRODUCTION

Dynamic changes in products liability have occurred during the past several decades. The courts, focusing on consumer protection, have expanded producers’ liability by moving away from the privity doctrine and toward strict liability for manufacturers. A current effort to protect consumers through products liability law involved a series of DES cases, in which the plaintiffs proposed “intra-industry joint liability.” This theory of products liability allows plaintiffs to hold entire industries liable for injuries caused by defective products of unknown origin. The number of plaintiffs involved in these cases and the likelihood that other plaintiffs will adapt the theory to different types of cases give the implications of intra-industry liability a continuing interest.

Market Share Liability for DES (Diethylstilbestrol) Injury: A New High Water Mark in Tort Law: Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 101 S. Ct. 285 (1980), Nebraska Law Review, Volume 60 | Issue 2 Article 9, 1981.

There are four possible bases for intra-industry liability: concerted action, alternative liability, industry-wide liability, and market share liability. Each would allow a plaintiff to collect substantial damages from multiple defendants without proof that any particular defendant caused the plaintiff’s injuries. Eliminating the plaintiff’s burden of proving which manufacturer’s product injured the plaintiff virtually guarantees that plaintiffs will prevail on the causation issue.

In Sindell v. Abbott Laboratories, the California Supreme Court discussed intra-industry liability for adverse effects of drugs and adopted the market share liability theory for DES injuries. Although the majority purported to shift only the burden of proving causation from the plaintiff to the defendants, the effect of its adopting the intra-industry joint liability concept (or, more specifically, the market share doctrine) is to guarantee that the plaintiff will prevail on the causation issue. By departing from traditional tort doctrine and effectively eliminating causation as an issue, market share liability thus represents a new high water mark in tort law. This Note will analyze Sindell and the various approaches taken to overcome the obstacle of product identification in DES cases. In addition, it will examine the legal, social and economic ramifications of intra-industry joint liability.

FACTS

The plaintiff in Sindell brought a class action suit which sought to hold several major drug companies jointly and severally liable for injuries she had sustained as a result of her mother’s use of DES as a miscarriage preventative while she was pregnant with the plaintiff. The complaint alleged that DES had caused her to develop precancerous and cancerous tumors and lesions, but it did not identify the specific manufacturer of the DES ingested by her mother. The trial judge sustained the defendants’ demurrers on the ground that the plaintiff failed to identify which defendant had manufactured the drug responsible for her injuries.

The California Court of Appeals reversed the trial court’s decision, concluding that the plaintiff had alleged facts sufficient to state a claim against the defendants. These included allegations that the defendant drug companies had collaborated in testing, marketing, and promoting DES and that they had agreed to a common formula for the drug in order to permit filling prescriptions with a brand other than that prescribed. Pointing to these allegations, the court concluded that the theories of concerted action and alternative liability were available to the plaintiff.

FOUR THEORIES OF INTRA-TNDUSTRY LIABILITY

The appellate court in Sindell identified two theories which would support joint and several liability of the defendants. Under the first theory, concerted action, a person would be liable for harm resulting from the tortious conduct of others if he assists or encourages that conduct, and either has breached a duty owed the plaintiff or has knowledge that the others’ conduct constitutes a breach of duty.

Under the second theory, alternative liability, all negligent defendants would be liable for the plaintiff’s injuries if it is possible to ascertain which defendant actually caused the injuries and if it is fairly certain that the injuries were caused by one of them. The appellate court relied on a well-known California case, Summers v. Tice, in which two negligent hunters were held jointly and severally liable for the plaintiffs injuries, where it was fairly certain that the shot came from one of them, but it was impossible to tell which hunter had fired the particular shot. The burden of proving causation was shifted to each defendant to exculpate himself if possible. The Summers court concluded that it would be unfair to leave the plaintiff remediless in the face of the defendants’ concurrent negligence.

Although not relied upon by the appellate court in Sindell, two other theories of liability have been proposed as bases for intraindustry liability: industry-wide and market share liability. The industry-wide liability theory was suggested first in Hall v. E.I. Du Pont De Nemours & Co., Inc. , which involved children who were injured by the explosion of dynamite blasting caps. The manufacturer of the blasting caps could not be identified because their markings had been destroyed in the explosion. The plaintiffs sued six American manufacturers of blasting caps and the industry trade association, alleging concerted action. The court decided that a cause of action existed under the concerted action allegation because all of the manufacturers had agreed to not place warnings on the blasting caps although they knew that the caps were dangerous. The court also determined that the defendants jointly controlled the risk because they had delegated some safety functions to a trade association. The court concluded that imposing industry-wide liability upon the manufacturers joined in the action was justified because they were aware of the risk and jointly controlled it. The Hall theory of industry-wide liability grounds each manufacturer’s liability for all injuries caused by its product upon industry-wide adherence to a specified standard of safety. The industry standard itself becomes the cause-in-fact of the plaintiff’s injury. Each industry member contributes to the plaintiff’s injury by adhering to the standard, thereby perpetuating the resulting manufacture of an unidentifiable injury-producing product.

The market share liability theory is an extension of the Summers doctrine. Using an undiluted Summers rationale, it is inappropriate to shift the burden of proving causation to the defendants where there is a possibility that none of them made the product which injured the plaintiff. However, the market share theory alters this doctrine by shifting the burden of proof to the defendants if the plaintiff joins the manufacturers of a “substantial share” of the type of product which caused the plaintiff’s injury. Under the market share theory, each manufacturer’s liability is equivalent to its percentage of total sales by all manufacturers of the product. Thus, a manufacturer’s liability should correspond to its responsibility for the injuries caused by its own products.

THE DECISION

Although the California Supreme Court rejected the appellate court’s reasoning, it affirmed the outcome of the case on a different basis: market share liability. The supreme court concluded that the concerted action and alternative liability doctrines, as interpreted by the appellate court, could not be applied to hold the Sindell defendants liable. The court reasoned that the defendants’ parallel or imitative conduct in relying on each others’ testing and promotion methods described a common practice in the industry, not a concerted action. The formula for DES is a scientific constant which a manufacturer producing the drug must follow by law. For these reasons, and because application of the concerted action theory to Sindell would expand the doctrine beyond its intended scope, the court found no concert of action among the defendants.

The supreme court also rejected the alternative liability theory.  While in Summers v. Tice there was a fifty percent chance that one of the two defendants was responsible for the plaintiffs injuries, the court noted in Sindell that any one of two hundred companies which manufactured DES might have made the product which injured the plaintiff. Therefore, there was no “rational basis upon which to infer that any defendant in the action caused plaintiff’s injuries, nor even a reasonable possibility that they were responsible. The court found the chance that any one of the five defendants supplied the DES to plaintiff’s mother was “so remote that it would be unfair to require each defendant to exonerate itself.” The court, therefore, did not use the alternative liability doctrine to relieve the plaintiff’s burden of proving which drug manufacturer caused her injuries.

The supreme court also discussed two other bases of liability: industry-wide and market share liability. It declined to apply the former theory, but concluded that adoption of the latter doctrine was warranted.

The court rejected industry-wide liability because the large number of producers of DES would create practical problems of management. In addition, it would be unfair to impose liability upon a manufacturer for injuries resulting from the use of a drug manufactured within standards suggested or mandated by the government.

The supreme court did adopt the market share doctrine as the basis for the defendants’ liability. Although it perceived that some discrepancy in the correlation between the market share and liability is inevitable, the court concluded that policy reasons nevertheless warranted application of the market share theory. The policy reasons presented by the court were:

1. A change in the rules of causation and liability is necessary to fashion remedies that meet the changing needs arising from our complex, industrialized society;
2. between an innocent plaintiff and negligent defendants, the latter should bear the cost of injury;
3. defendants are better able to bear the cost of injuries resulting from the manufacture of a defective product;
4. and holding drug manufacturers liable for defects provides an incentive for product safety.

The majority did not define what constitutes a “substantial share” of the DES market, but it did reject a suggested requirement of seventy-five to eighty percent. Therefore, from the majority’s viewpoint, it appears that a “substantial share” is something less than seventy-five percent.

ANALYSIS

Is Market Share Liability an Extension of, or a Break from, Traditional Tort Law?

According to the Sindell majority, the DES cases are merely a factual variant upon the theme composed in Summers v. Tice; hence, the shift in the burden of proof inherent in market share liability does not completely lack precedent.

However, according to the dissenting justices, the Summers case differs so fundamentally from the DES cases that its precedential value is suspect. In Summers the entire class of responsible parties was before the court; however, only some of the potential defendants were joined in Sindell. “Furthermore, the negligence of the defendants in Summers caused the plaintiff’s inability to identify the tortfeasor.” Conversely, in Sindell the plaintiff’s inability to satisfy the identification requirement resulted from the passage of time. Thus, the dissenters’ suspicions of an unprecedented extension of liabilty seem well-founded. The majority in Sindell argued that the plaintiffs cause of action was based on a reason similar to that advanced in Summers: as between an innocent plaintiff and negligent defendants, the latter should (Summers), or are better able to (Sindell), bear the cost of the injury. This “deep pocket” theory of liability, however, should not play a role in the legal analysis of the case because a defendant’s wealth is an unreliable indicator of fault. In addition, a system priding itself on ‘equal justice under law’ does not flower when the liability… aspect of a tort action is determined by a defendant’s wealth.

Policy Considerations

Adoption of the market share doctrine seems unfair if one considers that the theory imposes liability upon manufacturers who may have had nothing to do with causing the injury. Such an inference of fault approaches the imposition of liability on the basis of injury alone. Allowing courts to infer fault in this manner transforms manufacturers into insurers of societal safety. Also, such a broad extension of liability may diminish the money available for recovery.

In addition to the problems involved in imposing liability under the market share theory, allocation of liability is similarly perplexing. Assuming that no state other than California will adopt the market share doctrine because of its radical departure from traditional tort principles, California courts will allocate liability only to those manufacturers who are amenable to suit in California. Accordingly, as an eventual result of Sindell, California producers of DES may be held liable for 100 percent of a plaintiff’s injuries despite the fact that their aggregate share of the market may be considerably less. Similarly, DES victims would recover unevenly under the market share theory. California plaintiffs are in a better position than are out-of-state plaintiffs to recover fully for their injuries because California plaintiffs can pick and choose their defendants. For example, if the producer which actually caused the injury is now insolvent, a California plaintiff may recover by joining in the action other manufacturers of the same product. Conversely, in other states which still require identification a plaintiff may have a judgment which is valid but unenforceable because of insolvency.

Practical Implications of the Market Share Approach

In view of the legal, social, and economic consequences of the market share theory, it is essential to consider its practical implications. Market share liability would pervasively affect product safety and research and development of new products, and it also could have a detrimental impact on free competition.

Theoretically, market share liability would promote product safety because manufacturers of similar products would find it advantageous to join in establishing higher industry safety standards. However, it is also possible that the market share doctrine would decrease product safety because manufacturers would feel that despite whatever extra precautions are taken during production, they still could be held responsible for injuries resulting from the careless manufacturing practices of others. In addition, if manufacturers are liable regardless of fault, products liability judgments may become a mere business expense. If it is less costly to pay tort claims than to improve safety, producers may not bother to correct an injury-causing product. Market share liability, therefore, loses sight of one of the principal goals of the tort system: to reduce the number of injuries.

Adoption of the market share doctrine may prove to be similarly shortsighted as a matter of social policy concerning the promotion of research and development of new products. Although one commentator maintained that current drug research is duplicative and wasteful, public policy favors the research and development of new pharmaceuticals. The market share theory could hamper this research and development because each new discovery would be a potential source of liability. If policymakers want to encourage the development and marketing of new pharmaceuticals, they must absolve manufacturers of liability arising from dangers hidden prior to the marketing of the new drug. Furthermore, if the drug industry is required to anticipate side effects or medical complications which might surface a generation after ingestion, pharmaceutical research laboratories would be burdened with the duty to predict the future.

Free competition is one of the most important underpinnings of the American standard of living. However, it also could suffer from the Sindell decision. The market share theory suggests the socialistic concept of centralized authority for redistributing private resources. If all producers were held liable for similar products manufactured by the various members of the industry, the larger producers would have an incentive to organize the industry and to attempt to set quality-control standards. Dissenting marginal producers could be driven out of the market, leaving the largest manufacturers in control. If so, the market share liability doctrine would affect the economic structure of American industry extensively.

A NEW APPROACH TO THE INTRA-INDUSTRY LIABILITY PROBLEM

The Sindell majority referred to Justice Traynor’s opinion in Escola v. Coca Cola Bottling Co.,11o which recognized the need to adapt tort principles to changing and complex methods of mass production and marketing. One cannot quarrel with the need for some alteration in the present system of compensating plaintiffs injured by defective products. The theory of intra-industry joint liability, which eliminates proof of causation, is an attempt by the courts to keep pace with society. While market share liability is a worthy effort at balancing the rights of producers and consumers, the problems inherent in the market share theory warrant a search for an alternative solution.

Many commentators have proposed no-fault schemes of products liability to replace our current system. Others have suggested a limited no-fault version to be administered by an administrative tribunal. However, the problems that would arise from these systems make such changes undesirable. There are, undoubtedly, more satisfactory alternatives for apportioning losses from DES injuries than no-fault or market share liability. Yet, such an apportionment exceeds judicial competence. It is the province of the legislature, not the judiciary, to weigh the various economic, social, and political factors involved in such a complex policy determination.

Several minor legislative changes might result in better apportionment of DES losses. Partial governmental liability has been suggested, relying upon the belief that government approval of DES should carry with it some financial responsibility. Another suggestion is to limit the amount of damages a plaintiff could recover; this would decrease a manufacturer’s exposure in individual cases in order to offset its overall expanded liability. A legislature also might boost funding for the agencies responsible for regulating manufacturing. Banning sales of products which violate statutory quality and safety standards would spur manufacturers to develop safer products. Agency scrutiny, if properly funded, would deter irresponsibility in the research and development of new products without substantially inhibiting such undertakings.

While minor changes in the system will aid plaintiffs today, major alterations are needed to cope with the increasing number of plaintiffs who cannot locate or even identify the manufacturers of injury-causing products. Perhaps the most satisfactory solution would be congressional action to establish a framework for uniform loss apportionment. This would eliminate the market share doctrine’s problems of uneven distribution of recovery and unfair allocation of liability.

For example, a scheme similar to the Federal Deposit Insurance Corporation (FDIC) could be instituted, whereby each manufacturer deposits into a federal fund a percentage of its gross sales. Such a plan could be called Manufacturer’s Deposit Insurance Corporation (MDIC) and would function as follows: Each manufacturer of a designated product would pay into the fund a percentage of its gross income from sales of that product according to a flexible rate assigned to the product. Federal administrators could increase the rate for a manufacturer found negligent in its manufacturing practices or could revoke its manufacturing license. Plaintiffs could collect from the fund for injuries and losses attributable to defective products without proving that the defect was foreseeable or that the manufacturers had “joint control of the risk.” The only producer identificaton required would be that the product is American-made.

MDIC would balance the positions of both manufacturers and consumers. If products became defective, or if unforeseeable flaws were discovered, the fund could buy back the products, or pay the resulting injury claims, or both. Hence, a manufacturer would not face bankruptcy because of an unexpected imperfection in its product. Research and development of new products would flourish under MDIC because the introduction of a new product would not be inhibited by the threat of liability. Because contributions to the fund would be proportional to each producer’s gross sales, marginal producers could still compete with large manufacturers, and free competition would remain as the mainstay of the American economy. MDIC would allocate liability more equitably than would the market share doctrine because manufacturers of all states (rather than just California) would contribute to the payment of claims. The fund’s cost would become a business expense imposed concurrently with the manufacture of a product; consequently all producers would bear responsibility for injuries caused by their products, even those occurring after bankruptcy.

MDIC offers advantages to consumers as well as to producers. Under this plan, recovery for injuries or losses would be allocated among plaintiffs in all fifty states. In addition, a plaintiff could collect compensation for her injuries regardless of whether the producer at fault is currently solvent. The absence of a manufacturer identification requirement would allow recovery for plaintiffs who previously were unjustly denied compensation for their injuries or losses because of their inability to match the injury-causing product with a producer. Under MDIC, product safety and quality standards would be policed by federal administrators. Such supervision and the threat of lost sales or a rate increase would deter negligent production practices.

MDIC would include all manufacturers and would not discriminate against certain industries. It would allocate liability fairly and distribute recovery evenly. The MDIC system for compensation would not sacrifice deterrence as a control on product safety.

CONCLUSION

The market share doctrine is an attempt to resolve equitably the question of intra-industry joint liability. Although market share liability is not the appropriate solution, the California Supreme Court’s decision in Sindell is instructive. Several unsettling questions raised by the appellate court in Sindell were answered by the supreme court. First, it reaffirmed the Hall “joint control of risk” requirement for industry-wide liability. Second, it held that alternative liability could not be asserted in DES cases. Some queries, such as the due process ramifications of market share liability, remain unresolved and may require consideration by the United States Supreme Court.

Sindell will affect manufacturers throughout the country. Any producer dealing in interstate commerce can reasonably expect that, at some point, its product will reach California. It is difficult to predict fully the effect on products liability law; however, Sindell certainly is a landmark in the struggle to solve the producer identification problem.

Legislatures should aid the courts in adapting traditional tort doctrines to modern technology. Minor changes in the present system will aid plaintiffs and judges today, but major alterations are imperative for the future. In this regard, MDIC may be a viable alternative solution to the problem of intra-industry joint liability. Legislative changes in the future will not assist the courts in making today’s decisions concerning the producer identification problem in products liability cases. However, Sindell may encourage the search for more equitable solutions to the problem of intra-industry joint liability.

Barbara J. Koperski, 1981

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The Supreme Court of California in Sindell v. Abbott Laboratories sidestepped a major obstacle to recovery for Diethylstilbestrol (DES) victims by adopting a market share liability exception to the defendant identification requirement that is essential to recovery in products liability actions.

Market Share Liability Adopted to Overcome Defendant Identification Requirement in DES Litigation, Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 101 S. Ct. 286 (1980), Washington University Law Review, Volume 59 | Issue 2, January 1981.

Plaintiff Judith Sindell brought suit against eleven drug companies on behalf of herself and similarly situated women. Sindell alleged that the administration of DES to her mother during pregnancy resulted in plaintiff’s development of cancerous and precancerous tumors. Plaintiff was unable to identify the specific manufacturer of the drug taken by her mother because of the time lapse between ingestion of the drug and discovery of plaintiffs injuries. The trial court sustained the defendants’ demurrers because plaintiff failed to identify the culpable manufacturer. The Supreme Court of California reversed, in a 4-3 decision, and held: When plaintiffs cannot identify the specific manufacturer of the drug that caused their injuries, each manufacturer of a substantial percentage of the generically identical drug is liable for its proportionate share of the market. Any defendant who can prove that it did not manufacture the drug that caused plaintiff’s injuries will be absolved from liability.

Since the advent of products liability law, courts have imposed liability on a manufacturer for harm caused by a defective product only on proof that defendant actually manufactured the product in question. The identification requirement is also essential to prove causation in negligence, breach of warranty, and strict liability actions. Because of increasing industrialization in the last century, the judiciary developed three major exceptions to the identification requirement to protect consumers’ rights: concert of action, alternative liability, and enterprise liability.

The prima facie concert of action case requires proof that multiple actors pursued a common plan or design to commit a tortious act. The agreement among the parties may be inferred from the actors’ knowledge of the commission of tortious acts if a tacit understanding to commit these acts existed among the parties. The tortfeasors are jointly and severally liable for all damage to the plaintiff. The identification requirement in the concert of action case is relaxed when the court imposes liability on the group, rather than on the individual wrongdoer. The practical difficulty of apportioning damages among tortfeasors initially results in imposition of the entire loss on each defendant. If a logical basis for apportionment exists, however, an approximate division of damages among defendants may occur.

The courts developed the alternative liability theory to overcome identification problems inherent in tort cases. All potential defend ants must be joined in an alternative liability action to prevent the true wrongdoer from escaping liability. In Summers v. Tice, for example, the plaintiff’s two hunting companions negligently fired shotguns simultaneously. A single pellet damaged plaintiff’s eye. Only one of the defendants’ shots was responsible for the wound, but plaintiff could not possibly identify the particular gun that caused the injury. The Summers court reasoned that when only one actor injured a plaintiff, compensation will not be denied because plaintiff cannot establish which of two equally culpable defendants was responsible for the injury.

The courts, in products liability decisions, have cautiously embraced both the alternative liability and the concert of action theories to overcome the identification hurdle in DES cases. A Michigan court of appeals in Abel v. Eli Lilly & Co. accepted the alternative liability theory to dismiss DES manufacturers’ demurrers. Because plaintiffs bear a heavy burden in proving that each defendant breached a duty of care in marketing DES, the court refused to require plaintiffs to apportion the damages among defendants. The Abel court thus shifted the burden of dividing liability to proven wrongdoers after plaintiff established the manufacturers’ culpability.

The theory of enterprise liability, which is designed to aid the plaintiff who cannot identify the manufacturer of an injurious product, is a hybrid of the concert of action and alternative liability theories. The court in Hall v. El du Pont de Nemours first imposed the concept of enterprise liability on a group of manufacturers of dynamite blasting caps for injuries caused by the product, even though plaintiff could not identify the culpable manufacturer. The theory assigns the burden of proof of causation to a group of blameworthy manufacturers who assume calculable risks in marketing certain products as a cost of doing business. The theory requires the identification of defendants that are both capable of bearing the cost of the damages and sufficiently culpable to warrant not only the shifting of proof of causation, but also the apportioning of the damages among them. The ultimate distribution of cost hopefully achieves an efficient and proper use of society’s resources to compensate the injured victim. The theory, although attractive to some scholars and plaintiffs, has not been accepted widely by courts in DES cases.

The Supreme Court of California in Sindell v. Abbott Laboratories6 rejected these three exceptions to the identification requirement, and based its judgment on a new theory: market share liability. The court first addressed the alternative liability theory, which would shift plaintiff’s burden of proof even though defendants did not have greater access to the injury causing information. The Sindell court did not interpret Summers to require that defendant possess the information, but only that the knowledge be accessible to defendants. The court noted, however, that if defendant establishes it did not manufacture the specific DES taken by plaintiff’s mother, it will be dismissed from the action. The court rejected the alternative liability theory, however, because it is possible that none of the five defendants manufactured the injury-causing DES.

The Sindell court dismissed plaintiff’s contention that a concert of action existed among the defendant manufacturers in developing, testing, and marketing DES. The plaintiff did not allege a tacit understanding among the manufacturers in producing DES, but stated that defendants produced the drug from an identical formula in adherence with guidelines of the Food, Drug, and Cosmetic Act and common practice of industry. The court held that to apply the concert of action theory would impose liability on individual manufacturers for the products of an entire industry, despite a showing that a defendant did not produce the particular drug that caused plaintiff’s injuries.

The majority rejected the theory of enterprise liability enunciated in Hall v. EL. du Pont de Nemours. First, the Hall court imposed liability on a small number of manufacturers representing an entire industry, and warned that application of the enterprise liability theory to a decentralized industry with a large number of manufacturers would be “manifestly unreasonable. Second, defendants in Hall relied on a trade association to guard against the foreseeable risks inherent in their industry, while plaintiffs in Sindell failed to allege a similar concerted delegation of authority. Finally, because the Hall majority recognized that the Food and Drug Administration, which sets testing and marketing standards for new drugs, controls the drug industry, DES manufacturers who follow criteria stricter than common industry practice should not be held accountable for plaintiffs’ injuries.

The California Supreme Court, however, did not limit its decision to the three identification requirement exceptions. The court modified the most persuasive arguments of Summers, applied the arguments to the enterprise theory of Hall, and proposed its own market share liability theory to overcome defendants’ demurrers. The market share liability theory ensures both the likelihood that joined defendants provided the injurious product, and that the specific wrongdoer will not escape liability. A particular defendant may be excluded from an action by proving that it could not have manufactured the product that caused plaintiff’s injuries. Remaining defendants may file cross-complaints against others not joined in the action to equitably distribute liability throughout the industry. The Sindell court maintains that each manufacturer’s ultimate liability for injuries caused by its production of DES under the market share theory would approximate the portion of damages caused by its product.

When the Sindell court attempted to develop a market share liability theory to relieve the plaintiff’s identification burden, it created a flawed and untenable doctrine. The problem lies in the theory’s abrogation of the Summers and Hall requirement that all possible defendants be joined in an action to shift the burden of proof of causation. The market share theory requires only that plaintiffs name manufacturers representing a substantial share of the relevant market. “Substantial share” is an undefined term that infers something less than a seventyfive percent share of the appropriate market. The Sindell dissent illustrates that the substantial share is an aggregate of the individual shares of independent manufacturers who occupy only a small portion of the relevant market.96 An individual defendant may be held proportionately liable for injuries caused by a particular product that it probably did not produce.

The tortfeasor can escape liability, under Sindell, if it is not joined in the action. Although the court suggests that joined defendants may implead other possible defendants, all the liability will fall originally on the joined defendants. Some manufacturers will either be outside the jurisdiction of California courts or no longer in business. Other states may not accept the market share theory, which will cause an uneven distribution of costs.

Problems of proof relating to market share data emphasize that the ultimate assignment of liability will be based arbitrarily on the conjecture of the court. Problems associated with the rule will not be limited to DES manufacturers. The Sindell dissent criticizes the rule as a future imposition of liability exceeding absolute liability, opening the door to a substantial increase in the volume of products liability suits. The effect of a holding that guarantees plaintiffs will prevail on the causation issue at trial because remaining defendants will be incapable of disputing allegations that they manufactured the cause of plaintiff’s injuries is an immediate concern to DES manufacturers.

The majority, in developing a new theory, upheld the court’s power to declare policy, rather than allowing the legislature to resolve the issue. Similarly, the court did not discuss alternate modes of compensation for victims of defective products. Although the need for compensating the DES victim is clear, the court’s theory drastically alters basic postulates of products liability law.

Washington University Law Review, 1981

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More DES DiEthylStilbestrol Resources

• Other papers on DES cases and lawsuits.
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