*1 Marie known Therese Marie now Therese Collins, Gastrow, Plaintiff-Appellant,
v. Lilly Company ; Drug Company; Squibb Rexall E.R. Eli Inc.; Laboratories; Boyle Abbott & Sons, & Com Laboratories, Cooper (formerly
pany; Inc. Brewer Laboratories); Inc., Company, and Sherman & Vale Inc.; Company, Upjohn Company; Cole Chemical Company; Laboratories, Inc.; McNeil Pharmacal Laboratories, a division of Carnrick G.W. Carnrick Industries, Company; (formerly Emons Inc. Amfre- Company) ; Grant and Chemical E.S. Miller Grant Smith, Laboratories, a division Miller & Patch Products; Laboratories, Inc.; Pharmaceutical Premo Company; Merck, Sharp Dohme; Kremers-Urban & Company; A. others, William Webster Defenda nts-Respondents.†
Supreme Court Argued January 4, 3, 1983. Decided No. October 1984. 82-1844.
(Also 37.) reported in 342 N.W.2d 27,1984. February for reconsideration denied Motion † *6 joint plaintiff-appellant there For the were briefs Bleakley, Thomas H. H. Richard J. Dimanin and Thomas P.C., Detroit, Michigan, Bloch Bleakley, and Gerald J. Milwaukee, Phillips, Donohue, S.C., Bloch and and and Bleakley. argument by H. Thomas oral joint brief defendants-respondents there was a For the S.C., Whyte Hirschboeck, & Ninneman and Richard C. Lord, and Hugh Bissell Moore and Milwaukee, L. and attorneys Labora- Illinois, Abbott Brook, Chicago, for Joseph Fer- J. tories, Dali, A. on Harold and of: behalf Milwaukee, Swietlik, S.C., & Dali, Lewis Kasdorf, ris and Dreyer, D. Stith and P. Laura Bauer, Lane D. Leo and attorneys City, Missouri, Hardy Bacon, Shook, Kansas & Milwaukee, Hayes, Company; Hanlin Lilly for Eli and Boyle Sons, Inc., Squibb attorney for E.R. attorney Up- Milwaukee, for Irving Zirbel, Company; W. attorney Connell, Milwaukee, john Company; Robert W. Laboratories; Cooper Miller for and E.S. Laboratories Waukesha, attorney for Vale Chemical Reilly, F. William Company, Company Cole Pharmacal Carnrick La- boratories, Inc.; Otjen, attorney Milwaukee, N. Carl for Drug Milwaukee, Company; Powell, Edmund W. Rexall attorney Company for Kremers-Urban La- and McNeil Inc.; attorney boratories, Carlson, Milwaukee, Donald H. Inc.; Laboratories, Premo Pharmaceutical A. for John Milwaukee, attorney Kluwin, Merck, Sharp Dohme; & Milwaukee, DuPuy, attorney and Robert A. for Emons argument Industries, Inc., by Hugh and oral L. Moore and Lane D. Bauer. *7 CALLOW, appeal J. is an
WILLIAM G. This from judgment and an of the circuit court for order Mil- Judge Holz, granting summary county, waukee Marvin C. judgment drug companies denying for the defendant the to amend her motion second amended complaint identify to Lilly as a sole defendant Eli Company. plaintiff appealed petitioned by- The pass appeals pursuant the court of to sec. 808.05 and sec. (Rule) 809.60, granted petition bypass. Stats. We the part We reverse in part judgment and affirm in the granting summary the judgment trial court for the de- fendants, and we remand proceed- the case for further ings. We affirm the order of denying the trial court plaintiff’s motion to amend her second com- amended plaint. appeal presented on trial
The issues are whether the granting summary judgment court erred in for the de- upon rule fendants based its conclusion that no Wisconsin permit plaintiff of law would her in- to recover for juries stemming ingestion from her mother’s diethylstilbestrol (DES), and whether the trial court permitting plaintiff erred her to amend second complaint single drug company, to name a amended Eli Lilly Company, as defendant.1 cross-appealed plain The defendants on the issue whether running tiff’s cause of was barred action the statute pregnant with
In Mrs. Roseann Collins became Collins, plaintiff in this case. Because Marie Therese having problems spotting in the with Mrs. was Collins early stages pregnancy, phys- she her her consulted ician, course of Wendt. Sometime Dr. William P. prescribed Collins, Dr. his treatment of Mrs. Wendt prevent DES, miscarriage. he her told would throughout pregnancy. Mrs. her Mrs. took DES Collins purchased could not where she Collins recall recall, certain, being “it but without was a little did pill aspirin.” . . . an white smaller than In- [uncoated] discovery formation in the adduced course revealed took the DES Mrs. Collins was in the form of 25 milligram pills. plaintiff 11, 1958, was born March in Milwaukee. began experience July, 1975, plaintiff
In June or accompanied longer periods than normal menstrual cramping. July 24, 1975, took the severe Mrs. Collins On During to consult Dr. Wendt. the examination Dr. a visible lesion in the Wendt discovered vagina. to Dr. Dr. Wendt referred William diagnosis. examining Fetherston for further After plaintiff, Dr. Fetherston concluded that she suffer- vagina. August ing from a full cell cancer of the On *8 surgery plain- performed on the 26, 1975, Dr. Fetherston num- uterus, part vagina, and a tiff, removing of her her by analysis David Subsequent lymph Dr. ber nodes. Mary’s Hospital Mil- pathologist at Carlson, a St. plaintiff adenocarcinoma waukee, had confirmed that vagina. benign vagina of the Subse- adenosis and her quent surgery, plaintiff that discovered to the 4, However, August Stats., 893.205, on limitations, sec. 1975. Stats., (Rule) 809.18, 1983, pursuant volun- defendants, to sec. tarily cross-appeal on the of this court’s basis dismissed their 550, Inc., Co., 113 Wis. 2d Hansen v. A.H. Robins decision in N.W.2d 578 functioning bladder had ceased because of the radical surgery. cancer January 6, 1977, plaintiff against
On filed suit drug companies allegedly produced twelve 21, 1977, Judge marketed DES. On November R. William granted Lilly, Rexall, Squibb, Moser defendants grounds motion to Abbott’s dismiss on the improper February 28, 1978, plaintiff service. On filed a sec- naming complaint, ond drug amended five additional companies defendants, as and this time effectuated proper service on all defendants. complaint alleged second amended five negligent
causes action: that were defendants producing marketing by pregnant DES for use women; strictly the defendants were liable because dangerous DES was and unreasonably prod- defective uct; misrepresented the defendants that DES was safe and pregnant women; efficacious for use conspired misrepresent the defendants that DES was pregnant safe efficacious for use women; that the defendants acted as a manufacturing class in and market- ing plaintiff DES.2 The demanded million in com- $3 pensatory damages, together with punitive million in $3 damages. May jointly
On the defendants moved the court, pursuant 802.08, Stats., summary judg- to sec. alleging genuine ment in their favor there was no any issue as to material fact and that law Wisconsin provided remedy upon no for the based action, realleges In her fifth cause of her other alleges companies, causes of action and then that all DES joined not, engaged whether in this case or similar actionable producing marketing conduct in conclude that DES. We separate upon cause of action does not state claim which relief therefore, correctly granted granted, and, the trial court summary judgment fifth cause of action. *9 individually defendants also moved
factual record. The variously alleging summary judgment, for that the stat- recovery, ute barred that the of limitations defendant drug company had manufactured or marketed DES form, area, period, geographical time or the relevant theory plaintiff’s recovery recog- was not law. nized under current Judge 23, 1982, Holz rendered a April Marvin C.
On summary joint the defendants’ decision on memorandum granted the motion judgment The court motion. summary judgment examining various after theories problem proposed plaintiff avoid the by the identify inability plaintiff’s which defendant company produced by taken her marketed that all the court concluded theories would mother. The law, departure radical from current necessitate a departure appropriate, if such a were should be 16, Accordingly, September on decided court. 1982, judgment dismissing court entered the trial plaintiff’s complaint. second amended request- May plaintiff a motion
On filed complaint permission ing her amended amend second summary judgment appeal de- from the she did not if appealed 23, 1982, and the sum- April or if she cision plaintiff wanted to mary judgment The was affirmed. Lilly complaint to name Eli amended amend her second grounds on the' there sole defendant the DES probability that it manufactured reasonable In a memorandum de- mother. taken 9, 1982, August trial court concluded cision dated appropriate requested was not be- amendment alleging any facts which was not new cause allegation support recently that one her asserted would drug company The trial court en- manufactured DES. on denying motion to amend tered an order August 23, appeal filed an from 1982.
177 judgment September 1982, 16, entered and the order en- August 23, tered 1982. facing problem Collins, alleges injury Therese who exposure DES, útero to is she to is unable
identify precise producer or marketer of the DES taken generic her mother due to the status of some DES, producers marketers, the number of the lack of pertinent records, passage and the of time. Several applied existing courts have theories law or crafted permit plaintiffs new theories to DES to avoid the almost proving drug insurmountable obstacle of particular that a company produced or marketed DES which caused injury.3 them simply Other courts have denied DES plaintiffs recovery existing because requires tort law plaintiffs prove to particular that a defendant caused plaintiffs’ determining harm.4 In approach our problem, appropriate it is to set forth the factual background against which the issues in this case must analyzed. synthetic estrogenic dupli- hormone which activity cates the estrogen, a female sex hormone present in all and, women to a lesser extent, also in men. In women, estrogen is one of the hormones crucial female sexual development fertility. and 1930’s,
In
synthesized by
late
group
British
researchers,
medical
but the
formula was
3 See, e.g.,
Laboratories,
v.
Sindell
Abbott
588,
26 Cal. 3d
163
Rptr. 132,
McElhaney
Lilly
Cal.
(1980);
v. Eli
&
P.2d
607
924
Co.,
Supp.
Lilly
(D.
1983);
564 F.
Bichler
Eli
v.
265
S.D.
Co.,
Lilly
(1982);
571,
v.
55 N.Y.2d
Abel
Eli
N.E.2d 182
436
Co.,
App. 59,
94 Mich.
main. marketing producing and In DES. order interested companies produce and market DES for med these States, they had to file in the United a New ical use with, of, Application (NDA) approval Drug5 and obtain Drug (FDA). Administration Federal Food Act, Food, Drug, and No. See Federal Cosmetic Pub. L. *11 1040, (p) 717, sec. 201 52 Stat. drug companies 1940,
By ten the of had filed end requesting produce NDA’s, authorization to and market menopausal symp- purposes: treatment of for four vaginitis, gonorrheal vaginitis, toms, suppres- and senile purposes lactation. None of the related to use in sion of problems pregnancy. of it would be 1940, FDA determined late the
In drug companies pool to their clinical appropriate for the would use as file” which the FDA data into “master for DES. on the NDA’s data for their decision the base drug companies early Accordingly, in 1941 several data to collect the accumu- formed a committee” “small filing drug companies an NDA for lated each of joint was included approval data of DES. This clinical produce to company’s in of an NDA each resubmission purposes. In market and DES for the above-mentioned 1941, approved September pending NDA’s the FDA marketing production for the and of DES. began 1930’s, conduct- independent
In the researchers ing pregnancy. These studies in on the role of hormones “Any drug composi drug” term “new is defined as: generally recognized, drug tion of which is such that such is not experience experts training among qualified by to scientific safety drugs, safe for use under conditions evaluate as labeling suggested prescribed, recommended, thereof.” in 717, Food, Act, Drug, Stat. Pub. L. No. Federal and Cosmetic 1041-42, 201(p)(l) at 21 (1938) >sec. amended [codified 321(p)(1) (1976)]. U.S.C. sec. estrogen the administration of in found that researchers pregnancies appeared help prevent problem certain miscarriages during keeping hormonal levels constant Thus, inexpensive, pregnancy. when an abundant source DES, estrogen form of became available using estrogen natural researchers switched from synthetic published early on in the Based articles DES. containing findings these on mid-1940’s researchers’ miscarriages possible preventing use DES in problem drug companies pregnancies, several became in- marketing producing newly terested in purpose. discovered
During companies sepa- several rately requesting supplemental filed NDA’s the FDA’s milligram approval produce and market a 25 size of pregnancies. problem all, DES for Most, use if not supplemental pub- NDA’s relied on clinical studies journals, lished in medical there is no but indication that companies any had connection direct with the inde- pendent Also, researchers. there is no indication that the drug companies together closely they worked when filed *12 supplemental their supplemental NDA’s. The first NDA’s approved during were reviewed and the FDA 1947; thereafter, supplemental filed, they as NDA’s were routinely were approved. In 1952 the FDA decided that longer thereby DES no drug,” permitting was a “new drug companies produce and market DES for use in pregnancy having without file NDA’s. produced
DES was and marketed from 1947 to 1971. In 1971 possible medical researchers established a sta- tistical link exposure during preg- between fetal to DES nancy development many years and the later of adenocar- vagina.6 cinoma of the Note, Causation in Proof of 6 The preventing miscarriages claims that was effective in DES questioned by were e.g., See, Dieckmann, later medical studies. Davis, Rynkiewicz Pottinger, and Does the Administration
180 Drug Multi-party Litigation, 125, 56 Tex. L. Rev. 126 n. ; Note, Liability: (1977) Market Share An Answer to 11 Problem, 668, L. DES Causation 94 Harv. Rev. 669 (1981) Note, n. 8 cited as Market Share [hereinafter Liability]. drug late In the FDA ordered that com- panies preg- DES for label as contraindicated use nancy. Reg. 21,537-38 (1971). 36 Fed. facing earlier, problem this the crux
As noted others, many plaintiff, probably that she and DES alleges identify company caused she cannot injury. and courts have her Numerous commentators First, plight. identified for DES several reasons this “generic” was, produced part, most in a form for the any clearly shape, not contain identifiable did color, markings. fungible drug produced was a DES chemically formula, pharma- with a identical and often prescriptions fill cists would from whatever stock DES they hand, particular had was on whether or not a brand specified prescription. in the many possibly as
Second, been it has estimated drug companies produced or marketed three hundred twenty-four years during on the DES was DES leaving entering market, companies with different case, throughout period. the de- In this this the market during produced fendants have evidence prescribed for the years was DES companies marketed twenty mother, one hundred at least coun- milligram plaintiff has size. The DES manufacture that the bulk tered with assertions Nevertheless, by only companies. few dominated many producers mar- companies, both there Therapeutic Value?, Diethylstilbestrol Pregnancy During Have Gynec. Obviously, informa- & Am. J. Obstet. they drug companies, nonetheless but tion was available to the pregnancy producing marketing use in continued *13 until it was banned 1971. keters, potential for the that share injuries. many companies may appears
Third, not pertinent kept may have not be able to locate records they when, where, type produced and what DES Similarly, plaintiff, probably or marketed. others, identifying type not have records does prescribed for DES and taken her mother. These problems many years passage from the result between exposure in útero and the manifestation During intervening years, may of cancer. memories faded, pharmaceutical may have medical and records destroyed, have been lost or and witnesses have died. By preg- the time that DES was banned for use nancy 1971, many already exposed women had been during pregnancies.7 their mothers’ Reliable esti- placed mates the number of individual or class action pending 1,000. approximtaely suits then at Note, Market Liability, probable, Share at 669. It given the potential victims, sheer number of many more suits will Thus, quite arise. it is clear that in this dealing case isolated, unique we are not with an set of again. circumstances which will never occur areWe faced fashioning with a choice of either a method of re- covery for the DES case which will from deviate tradi- tional law, permitting notions of possibly negli- tort gent escape liability defendants to innocent, to an in- jured plaintiff. justice In the interests of and funda- mental fairness, we choose follow the former alterna- tive.
We note at the common law tort rule the outset requires only plaintiff prove duty, breach alone, Wendt, physician treating In this case Dr. plaintiff’s mother, that he had of his estimated over course prescribed pregnancies. career DES in five hundred
182 legal injury, duty, and but also causation between a de- plaintiff’s injury. conduct and a Fondell fendant’s Lucky Stores, 220, 226-28, Inc., v. 85 Wis. 2d 270 N.W.2d recover, To Therese Collins would have to prove particular company produced that a or mar- taken keted the DES her mother. As we noted ear- lier, proof an this insurmountable obstacle for Therese remaining if even she can Collins establish all the ele- ments of her cause of action. I, provides, 9 of the Constitution Article sec. Wisconsin “ very person part, is entitled to a certain [e] injuries, wrongs
remedy
he
in the
for all
or
which
laws
property, or
person,
character.” We
receive
his
interpreted
provision of the constitution in the
have
this
“
following
adequate remedy
an
or forum
manner:
‘When
disputes
provide
process,
does not exist to resolve
due
courts,
Constitution,
under
can fashion
the Wisconsin
”
remedy.’
D.H.,
adequate
an
In
2d
Interest
76 Wis.
286, 294,
(1977)
omitted).
(citation
tions as the need arose.” Schulze, 1, 11, Bielski v. 2d 16 Wis. 114 N.W.2d (1962). Because entitled we conclude Therese Collins is inj remedy uries, to a at law for her we now consider each proposed of the appeal support theories her right recovery. proposes adopt “alter-
Therese Collins first that we liability” theory Tice, native v. enunciated in Summers holding (1948), P.2d 1 the defendants 2d 38 Cal. requiring prove the iden- liable without tity specific In Summers two hunters of a tortfeasor. negligently plaintiff, in the but shot direction injured could not be ascertained which hunter’s bullet *15 response plaintiff’s inability plaintiff. In iden- to the tify tortfeasor, developed theory, the actual court a the which is summarized as follows: tortious, the conduct of two or more “Where actors is proved plain- and it is that harm has been caused to the by only them, uncertainty
tiff
one of
but there is
toas
it,
upon
which one of
has
each
them
caused
the burden is
prove
such actor to
that he has not caused the harm.”
(1965).
433B(3)
(Second) of Torts sec.
Restatement
although
theory
defendants,
Thus,
when all
under
duty
acting
of care
independently,
breached
have
only
of them
the
one
caused
toward the
but
prove
he
did not
injury,
or she
each defendant must
severally
injury
jointly
or be
cause the
effect,
In
the burden
with all other defendants.
liable
must
proof
each defendant who
as to causation shifts to
injuries.
prove
that he
she did not cause the
or
represents
policy
that an inno-
This
determination
rule
he
remedy
without
because
cent
not be
should
negligent
prove
defend-
or she is unable to
which
86-88,
Summers,
harm.
Cal. 2d at
ants caused the
concluded the First, alternative theory DES cases. sent a viable for assumption premised on the theory part, liability is, in position far better [than “in a will be defendants one to determine plaintiff] to offer evidence 86, 199 P.2d 2d at injury.” Summers, 33 Cal. caused the the defendants plaintiff and case, at 4. In this both about DES information access to problems with have marketing. lia- Second, alternative production negligent contemplates that all bility theory formulation Thus, can joined the court in the be suit. will defendants directly was one of the defendants that at least be sure case, In a plaintiff’s harm. responsible may may defendants that hundreds of be however, there any one therefore, probability that liable, and, be corre- plaintiff’s harm be caused defendant Laboratories, 26 v. Abbott spondingly See Sindell small. 132, 139, 602-03, Rptr. 607 P.2d 163 Cal. 3d Cal. impossible Moreover, may to iden- of the fluid tify producers marketers because all DES years produced market over nature Third, alternative pregnancy. or marketed for use form, provide a pure not, in formula does its damages among apportion the defendants. way fair liability theory, defendants Under the alternative DES and those produced marketed small amounts of *16 large produced amounts would be or marketed equally liable. adopt the “con-
The next court to asks this theory theory liability. Under this certed action” of action, pure are concerted “enter- there three variants: alleged prise liability,” and, in this has as the case, conspiracy. civil liability upon theory rests concerted action of
principle who, plan pursuance of a common “those design actively part act, or take to commit a tortious it, by cooperation request, or it or who lend aid further or encouragement ratify adopt wrongdoer, or to the and equally benefit, his acts liable with done their are agreement Express necessary, him. all that is not understanding.” required is that W. there a tacit Prosser, Torts, Handbook sec. 46 at 292 The Law
185 omitted). (footnotes 1971) (4th Restate- also ed. Although (1979). (Second) this of Torts sec. ment adopted explicitly rule, we Restatement not court has “drag racing” theory applied of the a variant have joint imposed on all several cases only drag participating if even one in a race defendants actually plaintiff harm. caused of the defendants 134-35, 2d Avina, Ogle 33 Wis. See, e.g., v. N.W.2d tortiously assuming acted that the defendants
Even plaintiff, plaintiff, the concerted under toward the prove theory liability, able to must also be action agreement or, least, understand- a tacit there an at “gravamen among ing case, the In defendants. charge failed to ade- of concert is that defendants of the quately warning give [DES] of its sufficient test or to dangers they upon performed tests relied advantage pro- took of each others’ one another and marketing techniques.” Sindell, 3d motional and Cal. agree at with the California at 607 P.2d 932. We allegations not court’s conclusion in Sindell that such do theory tacitly agreed support the that the defendants testing produce adequately and market DES without Although warning dangers. potential of its there parallel was a de- substantial amount action producing marketing fendants in for use in pregnancy, we that this to the conclude does rise “acting level of in concert.” conceptual underpinnings
We also that the note theory inapplicable concerted action make to DES theory typically applied cases. The concerted action is particular which, case, to situations in unlike this DES *17 already causing defendant is identified as liability harm, and the desires to extend those acting league Comment, with that defendant. Over- 186
coming Litigation: Burden in DES Identification Liability Theory, The Market Share Marq. L. Rev. 609, (1982). theory rarely help has been used to plaintiffs avoid the requirement, Note, identification Balancing DES: Judicial Interest Innovation, 22 B.C. 747, (1981), L. Rev. 759-60 and we decline to do so in this case. theory
Another variant concerted action of lia- bility concept industrywide, in the or “enter- is found suggested liability,” prise which was first in Hall v. E.I. Co., Inc., Supp. (E.D. Pont De Du Nemours & 345 F. injured 1972). persons Hall N.Y. involved who had been by blasting caps by a manufactured limited number of substantially industry-imposed defendants under similar safety The court reasoned standards. that such evidence finding support jointly could that the defendants con- harm, therefore, trolled the risk the issue of which actually defendant caused the harm became important industry less than the fact that as whole engaged in hazardous conduct. at 372. Under Id. enterprise liability industry-wide theory, it is the stan- injury, dard that is the cause of and each defendant participates perpetuating using inadequate plain- standard has contributed is liable injury. tiff’s Comment, Proposed Theory DES and A Enterprise Liability, 46 Fordham L. Rev. enterprise theory should that the We conclude Hall, First, applied unlike this case not be in this case. perhaps potential defendant involves hundreds assumption companies. Thus, defendants necessarily jointly injury weak controlled the risk of given drug companies many entered and the fact that so
187 Second, marketplace from 1947 to 1971.8 DES left the FDA, of the control drug industry operates under drug indus- and conditions standards which sets the drug. particular market a produce and try must meet to that the de- than in Hall clear in DES cases It less is violating a drug companies each standard were fendant industry federally imposed im- safety, of whether marketing preg- for use in producing and DES posed, in however, that to FDA nancy. recognize, adherence drug company a not in itself absolve does standards Co., liability. Parke, v. Davis 9 Cal. 3d & Stevens 653, 51, Rptr. 45, 53, P.2d 661 65, Cal. 507 107 theory Finally, plaintiff in this relies on the case alleging defendants con- conspiracy, civil misrepresent and efficacious spired to that DES safe conspiracy pregnancy. A “a in civil combina- for use to persons action tion of two or more some concerted accomplish by accomplish purpose unlawful or to some purpose in unlawful.” unlawful means some itself 507 Dill, Radue v. 246 N.W.2d 74 Wis. 2d (1976) (citation omitted). asserts operated companies the defendant formed gain conspiracy approval of to FDA 1941 conspiracy seeking approval carried then into FDA problem pregnancies. use 1948 for of DES Then, drug companies contends, used pro- conspiracy, i.e., approval the fruits their FDA to pregnancy, misrepresent for duce market DES against using enterprise Indeed, the court in Hall cautioned large companies, stating numbers of defendant industry regard would fair and with to an be “[w]hat feasible ap producers might manifestly or ten five unreasonable if plied industry composed small decentralized of thousands of producers.” Co., Inc., 345 Hall v. E.I. Du De Nemours & Pont Supp. 353, (E.D. 1972). F. N.Y. including public large, at mother, was safe and efficacious. *19 that an conspiracy We conclude action for civil cannot pursued allegations on made in this case. As we earlier, drug companies noted apparently engaged in parallel behavior in parallel both 1941 and but be- agreement. havior prove alone cannot There is indi- no cation in the record that the explicitly defendants either tacitly gain approval collaborated to FDA they so that could in turn misrepresent collaborate safety efficacy of for preventing DES miscarriages. use in assuming enough cooperation Even there was close agreement, in 1941 to constitute an we cannot conclude agreement filing supplemental extended to Further, theory NDA’s in and 1948. becomes many drug when we unworkable consider the fact that companies entered the ap- well DES market after FDA proval. charged later These entrants should not be with participation knowledge alleged in or of the 1941 and conspiracies. theory proposed is the
The final theory adopted by “market the California share” Su- supra. preme Laboratories, v. Abbott Court in Sindell applied the rule of Summers” Sindell “a modification of apportionment an on the and fashioned based In relative market share of of the liable each defendants. plaintiff joins that, manu- Sindell court held once produced of a facturers “substantial share” proves prima in area marketed the relevant every except facia case on element identification of the tortfeasor, proof direct to the de- the burden of shifts prove they fendants to did not cause the injuries. Sindell, 26 at Cal. 3d at P.2d 937. demonstrating that This can be done defendant each plain- have made the could not caused the failing injuries. proof Id. Those tiff’s defendants in this damages percentage approxi- are held liable for the mating their share of relevant market. Id. The Sin- dell court reasoned that it was fair to shift the burden of proof light on causation to the defendants of the fact that each share, defendant’s market and therefore its damages, approximate probability share of the would plaintiff’s injuries. that it caused the Id.
Although fairness question the fundamental we do proof shifting to the defend- the burden of of Sindell’s theory ants, market share conclude that the Sindell we damages adopted in apportioning should not be Wis- “not admitted that it was The court Sindell consin. defining problems practical involved unmindful of determining share,” but declined market the market *20 adopting for market share to use that as a reason not the theory. Sindell, at P.2d at 937. We 26 Cal. 3d 607 theory unalloyed conclude, however, share that market to follow does not constitute the desirable course most conceptually at- theory, the cases because while DES tractive, practical applicability. is limited following from prevents us primary factor which
The proving defining and difficulty of practical Sindell is the drug many appears earlier, noted As market share. from available simply not have records companies do a DES much how determine finder could which a fact and marketed, or when given produced or defendant as- Even marketed. produced and the where records, fact drug have suming companies that some as- compose an accurate may to not be able finder still companies those which market of sessment of the total The this: for reasons part. a There are several were companies fluid, with quite apparently was market years; some leaving entering market over and may exist longer that still companies some no and exist 190 records; apparently there are no relevant
not have pertaining records to overall nationwide accurate defining marketing view of DES. We production impos- a near apportioning market share market and fairly accurately if it done is to be task sible approximate probability a defendant order to injuries.9 Further, we conclude caused judicial would in- that the waste of resources which in a “mini-trial” market herent second to determine against adoption by militates its We share court. totally reject however, emphasize, that we do not theory. Rather, explain below, market share as we we share, determinable, market if a consider to be relevant apportioning liability among factor in defendants. problems. recognize pose cases difficult that DES severely entirely may plaintiffs have been innocent over, they drug they harmed no control had certainty prove never know be able to with company produced taken their or marketed the DES possible lia- mothers. The are with defendants faced bility they may produced have DES which appear reasoning We find a flaw it would in Sindell’s in that permit propor each market increased defendant’s share to be tionately damages. to ensure her recovers Sindell, 937; 612-13, see also id. at 26 Cal. at at 3d P.2d dissenting). (Richardson, at While we J., P.2d requiring support damages, recovery of all her pay percentage market di defendant more its of the than rectly contrary percentage reasoning the court’s approximates probability produced market the defendant *21 subject Furthermore, or marketed the the Sindell court did DES. problem not itself those address to the of is to be done with what any defendants that to establish do not have with which records remaining Simply assigning arbitrarily their market share. percentage comport not market these defendants does probable liability. generally in Products with Trends id. and Liability (Nov. (interview Litigation, 1980) with 16 Trial Stanley Mosk, opinion). Justice author of the Sindell however, conclude, that as between the We marketed. fault, not at and the defend- probably is plaintiff, who product ants, provided which caused may have who justice fair- injury, interests of and fundamental bear of in- the latter should the cost ness demand jury. Accordingly, we formulated a method of have recovery plaintiffs for in cases in DES Wisconsin. recovery apply in situa- note that this method of could factually similar to tions which are the DES cases. Although in defendants this case not have theory, acted in concert under the of action all concert gaining participated approval in for either of DES use pregnancy producing marketing in or in in DES sub- sequent years. Each defendant contributed to the risk injury public10 and, consequently, of to the the risk of injury plaintiffs to individual such as Therese Collins. degree shares, measure, Thus each defendant in a some culpability producing marketing FDA, of in what the 10 theory proposed Robinson, A “risk contribution” in Mul tiple Cases, Causation Tort Law: on the DES Reflections argues Va. L. that, Rev. 713 Robinson from the stand point placing liability drug companies, of fairness on the “the point society critical is the creation a risk that deems to be unreasonable, anyone injured by not whether Id. at 739 it.” (emphasis original). pro companies Because all product, they contends, duced or marketed “defective” Robinson though they may injury, all contributed to the risk of even given injury plaintiff. have contributed to the Id. at actual Using premise, Robinson'argues 739-40. damages apportioned “among should be all defendants that cre according magnitude ated unreasonable risks to the risks they Although created.” “risk Id. at 755. we find Robinson’s theory recognizes contribution” all sound to the extent drug companies in some measure to the risk contributed injury, agree we do not in itself this is a sufficient basis liability. require We still the defendant it be shown that drug company way reasonably could have contributed in some injury. the actual *22 ultimately scientists,
many and medical researchers con drug possibly with harmful side a effects. cluded was injured plaintiff Moreover, pos between the and the as drug drug sibly company, responsible company the is in position injury. of a to the cost the better absorb against drug company liability, can itself either insure damage pass along award, the or the cost to the absorb consuming doing public as cost We con business. drug companies is better have clude it to or con injury the place cost of the sumers share than to the solely plaintiff. Finally, on innocent the cost burden damages drug will act an for awards as incentive adequately drugs they place companies test on the general espe for medical use.11 This incentive is market drugs cially important be in the case of mass-marketed physicians in cause consumers and their most instances rely given by upon supplier scientific advice community and, virtually consequently, helpless to are 1 1 argument, In their briefs at oral defendants con imposing liability possibly drug tended that on innocent com panies discourage drug companies producing will from or market ing society generic drugs. argued It benefits from has been generic drugs they produce are because easier and market are, cheaper therefore, The defendants consumer. liability imposed that, contend if on all defendants because were identify generic DES, cannot, due to the nature of producer companies marketer, drug seek to exact or would liability by producing marketing generic future not or avoid drugs. argument, validity defendants’ to the While there be some liability agree imposing case will cause this we not do drugs. marketing generic drug companies producing or to cease encourage drug liability com- will We believe sort drug long generic drugs. panies So produce or market safe thereby produce market companies drugs or properly test reasonably product, they under not fear need safe solely generic of the Thus, status rule this case. otherwise, generic safety drug, efficacy but liability. may give rise to injuries *23 caused protect from serious dele- themselves drugs. terious permitting plaintiff favor the considerations
Practical against initially, One proceed, one defendant. to at least require plaintiff, the as in would be to Sin- alternative dell, join share” of the as defendants “a substantial to producers of conclude that and marketers DES. We problems noted is unworkable earlier because we trying the relevant market inherent in to establish each defendant’s share of that market. Another alterna- require join a tive would be to the defendant to “reason- possibly cannot, able liable defendants. number” We however, that define what number” would be “reasonable potentially drug many because there are so liable com- panies. Moreover, judicial either alternative waste would by requiring an resources initial determination of wheth- plaintiff joined a the has number of er sufficient defend- ants. We also conclude that the defendant a better position drug plaintiff than the to determine which other companies may liability. recognize many share drug companies records, they, do have relevant but participants in the market, presumably DES have potential more information or access to relevant infor- plaintiff. mation than does the
Thus, plaintiff against the only need commence suit allege one defendant following the that the elements: plaintiffs DES; mother took plain- DES caused the subsequent tiff’s injuries; produced the defendant or type marketed the by of DES taken mother; and that producing defendant’s conduct marketing legally the DES constituted a breach of a recognized duty plaintiff. to the In the situation where allege prove type cannot what of DES took, mother as to the third element only allege need prove drug that the defendant com- use or marketed produced
pany Applying during miscarriages pregnancy. preventing complaints, construe we liberal construction rules satisfying complaint as amended plaintiff’s second allegations. required these prove plaintiff will have this case the trial of
At the the trier satisfaction these elements each of plaintiff need not however, that the emphasize, fact. We precise marketed the produced or prove that a defendant Rather, plain- mother. taken the evi- preponderance of only tiff need establish type produced marketed the defendant dence markings, size, identifiable color, shape, or other (e.g., *24 mother; by characteristics) taken the of DES allege any prove facts related plaintiff need not the subject geographic distribution to 'the time elements, prove these the plaintiff If the is able to DES. damages may plaintiff all from one defend- recover the If, however, joined, is the ant. than defendant more one damages plaintiff recover from defendant should each assignment proportionate jury’s liability under to the negligence comparative developed the scheme below. Although plaintiff we hold that sufficient the it is only recognize plaintiff defendant, to sue one we that the may preferable many find it to sue as defendants as can having liability. possible Simple be identified as self- encourage interest plaintiff should to more than the sue drug company. one plaintiff defendant If the cannot prove against single defendant, the case an action against potentially other defendants barred liable against the statute of limitations. A suit more than giving defendant, one plaintiff oppor- besides more liability, plain- tunities to establish also ensures that the tiff actually recovering will have a better chance dam- ages always possibility because there is that single judgment proof. defendant will be incentives will We assume identified above encourage drug sue a number of com- However, liability panies. in order to assure that equitably multiple cases defendant distributed among many possible, any defendants as defendant pursuant may, 803.05, Stats., implead to sec. as third- drug party companies defendants other can it allege produced type or marketed the of DES taken any permit originally will mother. This defendants, named defendant to share with other thereby damages being and will equitably result more among distributed all those defendants found liable for plaintiff’s injuries. case, In this we believe fair to grant direct existing the trial court to leave to the de- implead upon proper fendants to possibly notice other liable defendants. 803.05, See sec. Stats. After trial given opportunity court has implead defendants an defendants, other may proceed Therese Collins’ case negligence trial on two causes prod- of action: and strict liability. ucts negligence theory,
On a prove must company duty defendant had a of care and duty breached produced when it care or marketed Fondell, DES. note, Wis. 2d at how- 226-27. ever, that on the of identifying issue the defendant *25 plaintiff’s caused the injury, plaintiff only the need prove by preponderance a of the evidence that an al- legedly negligent drug company produced defendant or type marketed the of DES taken the mother. plaintiff
The in this proceed case also under a theory products liability. strict prevail In order to on theory, prove the (1) must that the DES was defective possession when left the or control of danger unreasonably drug (2) it was company; that consumer; (3) that the defect a or
ous to the user damages; (4) injuries of the cause engaged; producing drug in the company business negatively, or, put not an marketing that this is not to the infrequent transaction related isolated or drug company; (5) principal of the business company expected which the product was one change in or consumer without substantial reach user Dippel Sciano, when v. it was sold. condition (1967). 443, 460, reiterate 2d N.W.2d Wis. identifying the defendant that that on the caused issue only prove by plaintiff’s injury, need drug preponderance defendant evidence allegedly company produced or marketed the defective dangerous unreasonably type of taken plaintiff’s mother. argument,
At oral defendants’ counsel claimed that drug companies only negligence can be on a held liable theory, products theory. Support not on a strict proposition for this found comment k to 402A sec. (Second) of the Restatement of Torts Comment drugs unavoidably k products identifies be- unsafe “in present [they] cause knowledge, of human state quite being incapable are safe for intended made their ordinary premise properly pre- use.” Under the drugs pared accompanied by proper directions and warn- ings are, therefore, unreasonably dangerous, not comment products concludes that the sellers of strictly should be held “for con- liable unfortunate sequences attending their use.” The advances comment policy justification as a necessity rule for this drugs put adequate some to be on the market without testing urgent because of the need for of a treatment recognizes serious comment, health hazard. however, *26 marketing requires preparation and a such given warning provider proper is not to be if be held strictly liable.
Although Dippel Sciano, in v. adopted 402A we sec. reject any specifically accept supra, we declined to or Dippel, the comments. Wis. 2d at 459. We have not 402A, adopted k to and we comment sec. decline to do so in this case. We conclude that the rule embodied in and, therefore, comment k is too restrictive not com liability products mensurate with strict law in Wisconsin. Drug companies, manufacturers, like other sellers duty produce reasonably have a market safe products. recognize exigent in circum- some may necessary it place stances be on the market testing adequate before can be done. Insofar as these exist, agree circumstances we with the comment imposed. strict However, should we find exigent no pro- circumstances which would excuse DES adequately testing ducers marketers from DES before placed Although on the market. there was a preventing miscarriages societal interest preg- nancy, available, alternative prob- treatment was and the lem approach did not epidemic proportions. Even assum- ing exigent there were circumstances 1947 necessitat- ing the pregnancy use of DES in adequate without test- ing, years an elapsed additional ten had the time the plaintiff’s mother Thus, took appear DES. it would drug companies had sufficient time to test DES thor- oughly original even if the place need to it on the market adequate foreclosed testing at Accordingly, that time. we producers hold that or marketers be held strictly liable if the establishes the five elements specified earlier. proven prima Once has case under facie
either of action, cause proof the burden of shifts to the *27 the evidence of by preponderance prove a to defendant subject either the market produce or not it did that exposed to DES plaintiff was the during period time the the in which area geographical market in the relevant utilizing these In DES. acquired the plaintiff’s mother it the defenses, must establish the defendant plain- reached not have could produced marketed shift appropriate to it is conclude tiff’s mother. We geographic distribution proof on time and the burden they will have companies because the defendant to plaintiff. Fur- than to relevant records better access exist, that the we believe ther, if records do relevant consequences on placing the favor equities cases of DES the defendants. pool procedure in a will result that this
We believe reasonably could be assumed which it can defendants injuries. in this re- plaintiff’s note We have caused gard plaintiff’s mother took DES that, in cases where refilled, prescription period over a of time and had the drug companies may possible several that DES from injuries. This have contributed to the still remaining of the defendants could mean some price innocent, accept the defend- but we ants, perhaps ultimately society, pay provide must to adequate remedy an under the law.12
Regardless action the which causes of proceeds jury upon, apply this case will have to Wis- negligence 895.045, comparative statute, consin’s sec. 12 remedy argue The defendants in this type legislature. of case should be fashioned The defend examples lung legislation proposed ants cite as black and the fund disagree for victims of diseases. with this asbestos-caused argument. modify existing It is the function of this court necessary promote justice common if that under law becomes the law.
199 comparative negligence Wisconsin’s Under doc- Stats.13 liability trine, hence, proportion the amount —and damages proportion total determined in to the —is negligence percentage of causal attributable each de- Bielski, Comparative negli- fendant. 16 Wis. at 6. 2d gence will be determined the trier of both fact under negligence theory, generally see v. Schulze, Bielski supra, products theory under strict be- “negligence per cause of our liability, se” formulation of Dippel, 460-62; see 2d at Dow, Wis. Greiten v. La 2dWis. N.W.2d *28 carefully weighing
After alternatives, the we conclude application the comparative negligence of in DES provides equitable cases the assign roost means to lia- bility apportion damages among the liable defend- ants. As this court has stated: negligence “. . apportionment peculiar . The of the is
province jury. degree negligence of attribut- party by able to a is not to be measured the character thereof respects nor the number of in which is he found to par- have at fault. It been is the conduct of the ties as a considered whole which should In control. other words, once it has been established that each has been negligent, respective less jury’s weigh it is then the function to their regard- result, will, contributions to the which of omissions, the of nature their or acts determine larger which made the contribution and what to extent ” it exceeds or is less than that of the other. Taylor Surety Casualty Co., v. Western Wis. & 270 gen- 411-12, discussing 71 In the N.W.2d 895.045, Stats., provides: Section negligence. “Contributory Contributory negligence bar shall not recovery representative any person legal in an action or his injury damages negligence resulting to recover for in or in death person greater negligence to property, or if than such negligence recovery person against sought, the the whom of any damages proportion but the allowed shall diminished in he negligence person recovering.” to the amount to attributable the recog- negligence, comparative have we theory of
eral equitable based on natural doctrine an “is nized that it Bielski, at 7. 2d justice.” Wis. negligence comparative is a flexible believe equit- permit jury in DES cases the will
doctrine which among liability the defendants ably apportion to assigning exculpate In themselves. unable to have been may defendant, jury percentage of to each to, include, are not limited but consider factors drug company following: conducted tests whether the efficacy safety pregnancies; in use for on gaining company role in FDA degree took a what to pregnancies; approval use whether DES for large company market in the rele- had a small or share merely area; company took or vant the lead whether marketing producing lead of followed the others DES; company warnings whether the about issued dangers DES; company produced whether marketed after or should have known knew presented possible public; hazards DES any company steps whether took re- affirmative injury public. duce the risk of This of factors list exclusive, is not and the trial court its discretion *29 permit jury to consider other factors relevant to apportioning liability. Although the of lia- allocation bility present juries, will a difficult task for conclude we that it liability is the method best to ensure that be will assigned equitably accorded to relative fault.14 14 multiple negligence We note that tortfeasor cases of plaintiff compared negligence to the of each defendant. Ford, Construction, Wisconsin Natural Davis Gas v. Bacon & 96 314, 327, conceive, (1980). Wis. 2d N.W.2d 291 825 We cannot however, any of a plaintiff, situation where who was taken, at fetus the time the be with could attributed anything percent negligence. presume Consequently, but zero we percent liability appor in all DES cases 100 of the will be only among tioned the defendants.
201 recognize products strict under Wisconsin’s liability unreasonably a law the of defective and sale assuming dangerous product constitutes, all other ele- negligence Greiten, proven, per are se. 70 Wis. 2d ments specific proving is relieved at of acts 600. negligence part defendant, Dippel, on the of the 37 product, 2d at of the Wis. because is the nature degree gives care, liability, rise to Greiten, Therefore, preceding 70 2d at 604. Wis. negligence factors need not used because establish negligence per proven through se can be the five elements specified concerning products in our discussion strict However, prop- DES cases. the factors erly apportion liability among be used to the defendants jury strictly to be determines liable for the DES plaintiff’s injuries. damages
A final element of
discussion. The
merits
sought
damages
in this
punitive
case has
be-
recklessly disregarded
allegedly
cause
defendants
rights by their conduct associated with the
production
marketing
In
DES.
order to recover
punitive damages
injured
Wisconsin,
party
must
wanton, willful,
show a
or reckless indifference to or
disregard
rights
part
for the
on the
others
wrongdoer. Fahrenberg
211, 221,
Tengel,
v.
96 Wis. 2d
damages
(1980). Similarly, punitive
N.W. 2d 516
may be
products liability
awarded in
cases where it is
willfully,
shown that
wantonly,
the defendant
or reck-
lessly disregards
rights by selling
defec-
unreasonably dangerous
Wangen
product.
tive
v.
Co.,
Ford Motor
260, 308,
2d Wis.
N.W.2d
damages
designed
wrongdoer
Punitive
punish
are
Refrigerator
serve as a deterrent. Mid-Continent
*30
(1970).
746,
203 Stats., summary- 802.08(2), . . Pursuant to sec. granted judgment answers to pleadings, depositions, ‘if shall be the interrogatories, file, on to- admissions gether genuine party any, affidavits, if show that with the there is no any moving as to material fact and that the issue ” judgment is entitled to a as a matter of law.’ Maynard Inc., v. Port Publications, 98 2dWis. (1980). standard, Under this the trial N.W.2d obliged grant summary judgment
court was in favor plaintiff’s on the action defendants third cause of complaint. as set forth her second amended Accord- ingly, granting summary we affirm the trial court’s judgment insofar as it relates to this cause of action. summary judgment, deciding for
In
a motion
complaint
question
states a claim
whether the
initial
is
granted.
Maretti,
Prah v.
upon
which relief can be
223, 228,
The com-
2d
Several sum- separate motions for support of their materials upon these de- mary judgment. are based The motions or another reason for one fendants’ contentions taken marketed the DES they produced or not have could granting defendants’ In mother. did trial court summary judgment, joint for motion determine motions. not the other individual address remand, these upon consider should, trial court summary judgment ap- whether and decide motions holding upon opinion. of this propriate based court erred remaining the trial whether issue is amend her second motion to denying concluded complaint. The trial court amended facts, alleged any had the new nor had permitting an reasons sufficient shown *32 Allowing complaint. amended of her second amendment dis pleadings trial court’s within the party amend 274 O’Brien, 87 2d cretion, v. Wis. Gustavson there unless (1979), and not be reversed will 627 N.W.2d Quar discretion, v. abuse of Celmer has been a manifest (1973). The 581, 592, 2d 45 berg, 203 N.W. 56 Wis. 2d grounds exercise carefully for its stated the trial court we con decision on factors its discretion based Accordingly, we sider relevant to the determination. court’s in trial find manifest discretion no abuse amend, and, therefore, denial of motion to we affirm the trial court’s order. By Judgment part, affirmed reversed Court. — pro- part, further and cause remanded for trial and
ceedings opinion; with affirmed. consistent order (concurring). I ABRAHAMSON, J. S.
SHIRLEY majority’s agree decision with the persuaded that amI of action. complaint states a cause recognized a risk con- on action a cause of should separately for two reasons. theory. I write tribution unnecessarily majority confuses First, I believe saying damages by apportionment of issue of negli- comparative apply “jury Wisconsin’s will have Be- Stats.,” swpra, p. 198. gence 895.045, doctrine, sec. neg- prove the defendant’s not plaintiff need cause damage for ligence in order product her caused
205 liable, really applicable defendant to be 895.045 is not sec. except by analogy. comparative here The doctrine of negligence encompassed 895.045, Stats., in “sec. has been beginning only neg- construed from apply its to camal ligence. . . .” Lovesee v. Corp., Allied Devel. 45 Wis. 2d 340, 343, (1970) (emphasis added). N.W.2d City Badger also Franklin v. Sales, Ford Truck 641, 653-55, 2d (1973) Wis. (products N.W.2d 866 liability case). majority I believe appor- tries to fit damages tionment of comparative negligence within the statute, though even the causal element is an not issue in case, this kind of because it concepts wishes to use two present comparative negligence: jury doctrine of apportionment damages jury consideration of the kind and character of the Lovesee, defendants’ conduct. supra, at 345.
Second, although may necessarily I disagree with the discussion, join I concerning do not puni- the dictum damages. tive unnecessary This issue is disposition of the case and was not parties. briefed