The Challenge to the Individual Causation Requirement in Mass Products Torts


… “Sindell v. Abbott Laboratories, probably the classic causation case of that era, was the unusual exception in which plaintiffs recovered. The facts in Sindell illustrate the causation problem faced by victims of mass products torts. The plaintiff sued on behalf of herself and other similarly situated women suffering from cancerous and pre-cancerous growths that allegedly resulted from their mothers’ consumption, at least ten or twelve years earlier, of diethylstilbestrol (DES), a synthetic compound of estrogen intended to prevent miscarriages in pregnant women. She lacked the means to identify which pharmaceutical company manufactured the DES consumed by her mother because the eleven drug companies named in the complaint and scores of additional drug companies used an identical chemical formula for the drug, which was approved by the federal Food and Drug Administration. The plaintiff admitted that she could not identify which company had manufactured the drug responsible for her injury, and accordingly, the trial court dismissed the complaint, The California Supreme Court, however, reversed the case on appeal and introduced the concept ofmarket share liability, a form of causation that dispensed with the individual causation requirement? ” …

The Challenge to the Individual Causation Requirement in Mass Products Torts, 62 WASH. & LEE L. REV 873, 2005.

… “Judges and scholars alike regard as axiomatic the requirement that the plaintiff must prove that the defendant caused plaintiff’s harm in order to establish liability. William Prosser described it as “the simplest and most obvious” aspect of determining tort liability. In Payton v. Abbott Laboratories, the Massachusetts Supreme Judicial Court noted that “identification of the party responsible for causing injury to another is a longstanding prerequisite” for liability. The court reasoned that the requirement “separates wrongdoers from innocent actors, and also ensures that wrongdoers are held liable only for the harm that they have caused. “…

… “Richard Wright, for example, when faced with a case such as Sindell v. Abbott Laboratories, argues:

If each defendant is held liable only for her share of the risk exposure, there is no conflict with the corrective-justice view. It still must be proven that each defendant caused the risk exposure that possibly led to the manifested injury, and liability is for such risk exposure, rather than the manifested injury.”…

… “The victim of a latent disease caused by exposure to products that are fungible or nearly fungible often is not able to identify the particular tortfeasor that manufactured the product causing her harm, particularly when-as is often the case-a substantial period of time, often several decades, has passed between the time that the product was manufactured and the onset of the plaintiffs harm. The scenario in Sindell v. Abbott Laboratories, previously described, is but one example of the impossible challenge that the plaintiff frequently encounters.“…

… “Perhaps no other judicially created mechanism for holding defendant manufacturers collectively liable has tantalized academic tort commentators as much as market share liability, which originated in the California Supreme Court’s decision in Sindell v. Abbott Laboratories. The court held that “each defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiffs injury. This holding, claimed the California Supreme Court, results in each manufacturer’s liability reflecting the injuries caused by its own products, even though the tortious acts of any particular defendant are never causally linked to the harm suffered by any particular victim. The court justified its holding on the basis of instrumental goals including loss minimization (what Calabresi had referred to as primary cost avoidance): “The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects, thus, holding it liable for defects and failure to warn of harmful effects will provide an incentive to product safety. Further, the opinion reflects the instrumental goal of loss distribution:

From a broader policy standpoint, defendants are better able to bear the cost of injury resulting from the manufacture of a defective product. As was said by Justice Traynor in Escola, “the cost of an injury and the loss oftime or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.”

The court also invoked an argument based on justice. It stated: “As between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury.

Because the defendant could be excused from liability if it proved that it was not responsible for a particular victim’s harm, it is possible to interpret Sindell as an opinion that merely shifts the burden of proof on the issue of causation to the defendant. In Hymowitz v. Eli Lilly & Co., however, the New York Court of Appeals imposed true collective liability for the creation of risk when it held that a particular manufacturer of DES who could prove that its product could not have been the one that caused the harm to the particular victim nevertheless would be liable on a market share liability theory:

Because liability here is based on the over-all [sic] risk produced, and not causation in a single case, there should be no exculpation of a defendant who, although a member of the market producing DES for pregnancy use, appears not to have caused a particular plaintiff’s injury. It is merely a windfall for a producer to escape liability solely because it manufactured a more identifiable pill, or sold only to certain drugstores. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here.

The court conceded “the lack of a logical link between liability and causation in a single case.”

Despite the considerable scholarly support for the idea of market share liability-except for cases against DES manufacturers-the concept met with virtually universal rejection by the courts during the quarter-century foHowing the Sindell decision. “…

… “As a practical matter, the determination of the risk contribution of each defendant over a seventy-five year period appears to be an impossible task for a trial court and jury. In fact, when the Wisconsin Supreme Court became the first court to accept the risk contribution theory in a DES case in 1984, it recognized the substantial practical problems with market share liability and distinguished risk contribution liability from it. The Court held that in assigning a percentage of liability to each manufacturer defendant, the jury should consider not only its respective market share, but also the relative degree of the egregiousness of its conduct compared to that of other manufacturers. In determining the manufacturers’ relative market shares, one factor in the risk contribution calculation, the jury would be required to consider the following factors: the timing of the various producers’ entry, exit, and sometimes re-entry into the relevant market; the great differences in the amount of lead-pigment contained in various lead-based paints; how much ofthe plaintiff’s exposure occurred at each ofthree houses where he lived; and the possible effect ofbioavailability on the effects of exposure (disputed between the parties). The jury’s determination ofmarket share here would be far more challenging than in the DES situation, where the chemical formula of manufacturers’ products were identical and the products causing the harm were consumed by the victim’s mother in a specific period lasting less than nine months. The jury then would be required to consider these factors along with its evaluation of the level of egregiousness of each ofthe manufacturer’s conduct. It is difficult to see how combining “apples and oranges”-the percentage ofmarket share and level of egregiousness of each defendant-in any way makes the jury’s calculation more manageable.”…

… ” … since Judge Weinstein’s decision, courts almost universally have rejected liability based upon “enterprise” or industry-wide liability. For example, in Ryan v. Eli Lilly & Co., the court refused to apply enterprise liability and described it as “repugnant to the most basic tenets oftort law. “..

… “Courts have little difficulty in holding manufacturers liable on a concert of action basis where it can be proved that there was an explicit agreement among manufacturers to engage in tortious conduct. The courts take different approaches, however, on the issue of whether “consciously parallel conduct” is sufficient to create concert of action liability by “implied or tacit agreement or understanding. In Bichler v. Eli Lilly & Co., the New York Court of Appeals upheld the jury’s finding of concert of action based upon the DES manufacturers’ “consciously parallel behavior” in marketing DES without adequate testing. Other courts have held that parallel activity by several product manufacturers is insufficient to establish concert of action. “…


Modern scientific understanding informs us that, in a probabilistic or actuarial sense, millions of people suffer from diseases resulting from exposure to mass products and other toxic substances. Yet nearly a full generation after courts first addressed the troubling causation problems inherent in cases involving latent diseases and other harms resulting from exposure to fungible or nearly fungible products manufactured by multiple defendants, the individual causation requirement in tort-requiring the victim to prove that her specific harm was caused by the products of a particular manufacturer-remains remarkably resilient, denying compensation to the victims of such harms.

One might have expected a different outcome. Mass products torts seem the perfect crucible in which to conduct a real world test of the plausibility of the contrasting notions of causation inherent in the instrumental and corrective justice theories of tort liability. Calabresi and others advocating an instrumental conception of tort law find no justification for a requirement that the victim prove that her harm was caused by a particular injurer. The instrumental theory has profoundly influenced the development of other aspects of products liability. But on the issue of the required causal connection, at least, it appears that the result championed by Weinrib and other corrective justice theorists is prevailing. The requirement ofindividual causation has had remarkable staying power within the tort system.

What is less clear, however, is the reasoning behind this continuing judicial insistence on individual causation. One possibility, of course, is that Weinrib is right and that courts accept his conclusion that the inherent philosophical justification for tort liability requires a link between an individual victim and an individual injurer.

There is, however, a second possibility. It may be that courts recoil from assessing liability to a particular manufacturer whose acts cannot be shown to have caused the plaintiffs harm because the whole notion seems both foreign to the judicial function and one not easily handled by the courts. Involuntarily taking funds from one group and transferring them to another group in the absence of proof of individual causation, regardless of how persuasive the victims’ tragic illnesses may be, seems more like a taxation and welfare function to be handled by legislative and administrative bodies than it does a judicial function.

Further, if the plaintiff in a mass products case with indeterminate manufacturers is to recover without proof of individual causation, sooner or later the court must determine the respective share of the financial responsibility for each of the defendant-manufacturers, either through market share liability or during a subsequent contribution action among manufacturers. Yet only in a few cases, such as those involving DES, is it possible to apportion realistically causal responsibility in a manner that satisfies typical notions of fairness and accuracy within the judicial process. Framed as an issue of institutional competence and appropriate institutional boundaries, disquietude about recovery in the absence of proof of individual causation is fully compatible with an instrumental theory of tort law.

In the absence of proof of an individual causal connection, compensation for harms caused by exposure to mass products torts is better left to alternative compensation systems than to courts. In these venues, we can dispense wit any requirement of individual causation: determinations of which claimants may recover, and which manufacturers must pay and in what amounts, would be left to the legislative branch and administrative agencies. Today’s scholars, judges, and mass products torts attorneys, intellectual heirs of the 1960s whose conception of torts has been shaped by the instrumental theory, expect too much from the judicial system.

Donald G. Gifford, 2005.

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