Toxic Tort Case Essentials

I. THE GENESIS OF MARKET SHARE LIABILITY

1. Background Of The DES Litigation

   From the late 1940s until 1971, the synthetic drug diethylstilbestrol (hereinafter "DES") was prescribed for pregnant women to prevent miscarriages. Smith v. Eli Lilly & Co., 560 N.E. 2d 324, 327-328 (Ill. 1990). In 1971, the FDA banned the marketing of DES to pregnant women after medical studies suggested "a statistically significant association between the outbreak in young women of clear cell adenocarcinoma with the material ingestion of DES during pregnancy." Id. at 328. Subsequent to the ban, numerous lawsuits were filed against manufacturers of DES by the daughters of women who took the drug during their pregnancies ("DES daughters"). Id.

   One significant difficulty encountered by plaintiffs in DES cases was proving the identities of the manufacturers which supplied the particular DES used by their mothers when the plaintiffs were in utero. As many as 300 companies produced DES and many of these manufacturers were no longer in business. The problems of proof were exacerbated by the long periods of time between the mothers' ingestion of DES and the injury to the DES daughters. Many mothers used the drug at least twenty years prior to the filing of lawsuits by their daughters; meanwhile, medical records which might have identified the manufacturer of the DES ingested by a particular mother were lost or destroyed.

   In the DES cases, the courts balanced the fundamental tort principal that the plaintiff has the burden of proving that a particular defendant caused the injury with competing tort interest that between an innocent plaintiff and a manufacturer of a defective product, the latter should bear the cost of injury. See, Sindell v. Abbott Labs, 26 Cal. 3d 588, 610-611 (1980), cert. denied, 449 U.S. 912 (1980). The courts, after balancing these interests, applied the concept of burden shifting, that is, the burden of proof on the issue of the identities of the culpable manufacturers in a DES case is shifted to the defendants under theories described as "enterprise liability," "alternative liability," and "market share liability." Smith, supra at 329. California adopted a market share theory of liability in the well-known case of Sindell v. Abbott Laboratories, supra. In Brown v. Superior Court, 44 Cal. 3d 1049 (1988), the California Supreme Court reaffirmed this theory and also resolved some remaining issues that were not superficially addressed in Sindell.

   B. The Sindell Decision

   In Sindell, the trial courts dismissed a DES daughter's action due to her inability to prove which of the defendants manufactured the specific DES that was ingested by her mother. The California Supreme Court reversed, holding that it was reasonable to measure a defendant's liability to the plaintiff by the percentage of the national DES market for which the defendant was responsible. Id. at 611-612. In explaining its decision to remove the defendant identification requirement from plaintiff's burden of proof, the Sindell court pointed out that scientific and technological advances in modern society create goods that may harm consumers, but which are not traceable to the manufacturer because of their fungible nature. Id. at 610.

   The Sindell court discussed three principles of tort law that would support a market share theory of liability. First, as between an innocent plaintiff and a manufacturer of a defective product, the latter should bear the cost of injury. Id. at 610-611. Second, defendants are better able than innocent plaintiffs to bear the cost of injury resulting from the manufacturing of a defective product. Id. at 610-611. Finally, because the manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects, holding the manufacturer liable for defects and failure to warn will provide an incentive to ensure product safety. Id.

   The court expressed that these policy considerations were particularly important in cases involving medication because "the consumer is virtually helpless to protect himself from serious, sometimes permanent, sometimes fatal, injuries caused by deleterious drugs." Id. The holding is not without the recognition of the difficulties in determining market shares that market share liability could thus lead to manufacturers being held liable for a different portion of the damages than its actual share of the market would justify. Id. at 611-612.

   The market share theory of liability developed in Sindell provides that where a plaintiff is unable through no fault of her own, to identify which defendants supplied the drugs that allegedly caused her injuries and the drugs are produced from an identical formula, plaintiff need only join a "substantial share" of themanufacturers in order to be able to shift the burden of proof to defendants. Id. at 611-612. The Sindell court did not describe what would constitute a "substantial share" other than to reject a suggestion that it should be 75-80% of the market. Id. at 612. This presents some obvious practical problems vis--vis determining whether the theory is application in a particular case.

   Assuming plaintiff meets the above conditions, the burden then shifts to the defendants to prove that they could not have made the particular drug that injured the plaintiff. Id. at 612. Any manufacturer-defendants unable to demonstrate that they did not make the product used by the plaintiff's mother are then held severally liable for...