Sindell v.Abbott Laboratories

Supreme Court of California,1980

26 Cal.3d 588,cert.denied,449 U.S.912 (1980)

MOSK,JUSTICE.This case involves a complex problem both timely and significant: may a plaintiff,injured as the result of a drug administered to her mother during pregnancy,who knows the type of drug involved but cannot identify the manufacturer of the precise product,hold liable for her injuries a maker of a drug produced from an identical formula?

[Plaintiff alleged that her mother ingested a drug,diethylstilbestrol (DES),which was marketed by the defendants,five drug companies.The drug also was marketed by approximately 195 other companies,not joined as defendants.The drug,a synthetic estrogen,was given to plaintiff’s mother while she was pregnant with plaintiff to prevent miscarriage.Plaintiff,now an adult,alleged that she developed cancer as a result of her exposure to the drug.She also indicated that she could not identify the manufacturer of the drug.The trial court dismissed the action.

This court held that (1) Summers v.Tice did not apply because not all the defendants were before the court,and (2) there was no “concert of action” among the defendants.]

A third theory upon which plaintiff relies is the concept of industry-wide liability,or according to the terminology of the parties,“enterprise liability.” This theory was suggested in Hall v.E.I.DuPont De Nemours & Co.,Inc.,345 F.Supp.353 (E.D.N.Y.1972).In that case,plaintiffs were 13 children injured by the expl-o sion of blasting caps in 12 separate incidents which occurred in 10 different states between 1955 and 1959.The defendants were six blasting cap manufacturers,comprising virtually the entire blasting cap industry in the United States,and their trade association.There were,however,a number of Canadian blasting cap manufacturers which could have supplied the caps.The gravamen of the complaint was that the practice of the industry of omitting a warning on individual blasting caps and of failing to take other safety measures created an unreasonable risk of harm,resulting in the plaintiffs’ injuries.The complaint did not identify a particular manufacturer of a cap which caused a particular injury.

The court reasoned as follows: there was evidence that defendants,acting independently,had adhered to an industry-wide standard with regard to the safety features of blasting caps,that they had in effect delegated some functions of safety investigation and design,such as labeling,to their trade association,and that there was industry-wide cooperation in the manufacture and design of blasting caps.In these circumstances,the evidence supported a conclusion that all the defendants jointly controlled the risk.Thus,if plaintiffs could establish by a preponderance of the evidence that the caps were manufactured by one of the defendants,the burden of proof as to causation would shift to all the defendants.The court noted that this theory of liability applied to industries composed of a small number of units,and that what would be fair and reasonable with regard to an industry of five or ten producers might be manifestly unreasonable if applied to a decentralized industry composed of countless small producers….

We decline to apply this theory in the present case.At least 200 manufacturers produced DES;Hall,which involved 6 manufacturers representing the entire blasting cap industry in the United States,cautioned against application of the doctrine espoused therein to a large number of producers.(345 F.Supp.at p.378)

Moreover in Hall,the conclusion that the defendants jointly controlled the risk was based upon allegations that they had delegated some functions relating to safety to a trade association.There are no such allegations here,and we have concluded above that plaintiff has failed to allege liability on a concert of action theory….

If we were confined to the theories of Summers and Hall,we would be constrained to hold that the judgment must be sustained.Should we require that plaintiff identify the manufacturer which supplied the DES used by her mother or that all DES manufacturers be joined in the action,she would effectively be precluded from any recovery.As defendants candidly admit,there is little likelihood that all the manufacturers who made DES at the time in question are still in business or that they are subject to the jurisdiction of the California courts.There are,however,forceful arguments in favor of holding that plaintiff has a cause of action.

In our contemporary complex industrialized society,advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer.The response of the courts can be either to adhere rigidly to prior doctrine,denying recovery to those injured by such products,or to fashion remedies to meet these changing needs….

The most persuasive reason for finding plaintiff states a cause of action is that advanced in Summers: as between an innocent plaintiff and negligent defendants,the latter should bear the cost of the injury.Here,as in Summers,plaintiff is not at fault in failing to provide evidence of causation,and although the absence of such evidence is not attributable to the defendants either,their conduct in marketing a drug the effects of which are delayed for many years played a significant role in creating the unavailability of proof.

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 [v.Coca Cola Bottling Co.],“[t]he cost of an injury and the loss of time 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 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.These considerations are particularly significant where medication is involved,for the consumer is virtually helpless to protect himself from serious,sometimes permanent,sometimes fatal,injuries caused by deleterious drugs.

Where,as here,all defendants produced a drug from an identical formula and the manufacturer of the DES which caused plaintiff’s injuries cannot be identified through no fault of plaintiff,a modification of the rule of Summers is warranted.As we have seen,an undiluted Summers rationale is inappropriate to shift the burden of proof of causation to defendants because if we measure the chance that any particular manufacturer supplied the injury-causing product by the number of producers of DES,there is a possibility that none of the five defendants in this case produced the offending substance and that the responsible manufacturer,not named in the action,will escape liability.

But we approach the issue of causation from a different perspective: we hold it to be reasonable in the present context to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage which the DES sold by each of them for the purpose of preventing miscarriage bears to the entire production of the drug sold by all for that purpose.Plaintiff asserts in her briefs that Eli Lilly and Company and 5 or 6 other companies produced 90 percent of the DES marketed.If at trial this is established to be the fact,then there is a corresponding likelihood that this comparative handful of producers manufactured the DES which caused plaintiff’s injuries,and only a 10 percent likelihood that the offending producer would escape liability.

If plaintiff joins in the action the manufacturers of a substantial share of the DES which her mother might have taken,the injustice of shifting the burden of proof to defendants to demonstrate that they could not have made the substance which injured plaintiff is significantly diminished….

The presence in the action of a substantial share of the appropriate market also provides a ready means to apportion damages among the defendants.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 plaintiff’s injuries….

Under this approach,each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products.Some minor discrepancy in the correlation between market share and liability is inevitable;therefore,a defendant may be held liable for a somewhat different percentage of the damage than its share of the appropriate market would justify.It is probably impossible,with the passage of time,to determine market share with mathematical exactitude….As we said in Summers with regard to the liability of independent tortfeasors,where a correct division of liability cannot be made “the trier of fact may make it the best it can.” (33 Cal.2d at 88,199 P.2d at 5.)

We are not unmindful of the practical problems involved in defining the ma-r ket and determining market share,but these are largely matters of proof which properly cannot be determined at the pleading stage of these proceedings.Defendants urge that it would be both unfair and contrary to public policy to hold them liable for plaintiff’s injuries in the absence of proof that one of them supplied the drug responsible for the damage.Most of their arguments,however,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.

The judgments are reversed.

Notes and Comments

1.What if a defendant in a situation similar to Sindell can successfully establish that it did not in fact manufacture the specific drug which caused plaintiff’s injury? For example,it did not actually market its product in the specific geographical location where plaintiff was during a period of time when plaintiff’s injury was sustained.The New York court in such a situation declined joint and several liability,defining market share as in the national market.See Hymowitz v.Eli Lilly and Co.,73 N.Y.2d 487,541 N.Y.S.2d 941 (1989).

2.Why should the defendants share the liability when in fact there could be only one of them that was actually responsible for the plaintiff’s injury? Is it logically fair for the rest of the joined defendants to pay for damages not flowing from their products? What is the policy consideration for such a decision to place the burden on the defendant manufacturers,and how far it could be extended for industrialized products? For example,suppose the industry standard at that time was based on national guidelines of pharmaceutical product safety,which was established relying on scientific research results then.Should the government also be held liable to some extend? Should the scientists?

3.In Sindell,the plaintiff was not considered to be at fault in any way (naturally,she was not yet born when her mother was administered the drug,DES).However,the mother took the drug in order to avoid miscarriage,which was a benefit for the plaintiff;otherwise,there wouldn’t be she.Despite the cancer-cau-s ing effect of DES became known years later,wasn’t her mother partly responsible for some reason?