*1 613-14, 14 L. Ed. 2d 380 U.S. California 106, 109-10, 85 S. 1232-33. Ct. the case,
In evidence directly tying this defendant to the crime was the store clerk’s suspect ' Thus, State’s case depends largely identification. defendant, a upon assumption reason at hour after the crime man, black was the house one in the was committed was that he had been involved crime. I context, In this do believe the prosecu- fail- comments, tor’s the defendant’s implied an the house being ure his explanation provide there he an admission that he was because constituted harmless was were robbery, beyond involved I would Accordingly, doubt. reverse reasonable and remand to the trial court defendant’s conviction a new trial.
(Nos. 67732, 67747 cons . SMITH, v. ELI LILLY & COM SANDRA Appellee, al., Appellants.
PANY et on Opinion July denial 1990 . Modified filed rehearing 1990. October *3 CALVO, J., CLARK, J., concurring part and dis- joined by senting part. Harrold, Allen & Wildman, Bartelt, of
Richard C. and Laura D. E. Scheve and Dixon, Stephen of Chicago, Mis- Bacon, of Kansas City, & Stith, Shook, Hardy of Eli & souri, Lilly Company. for appellant Brook, Chicago, & of Moore, Lord, L. of Bissell
Hugh for Abbott Laboratories. appellant Moelmann, Hinshaw, Culbertson, Fuller, L. of
Perry H. Fuller, for William Chicago, appellant Hoban & of Rorer, Inc. Mustes, Ltd., and Connelly,
Chadwell & Kayser, Howard, of all counsel), Palmer & Schroeder C. (Bruce of for Premo Pharmaceutical Labs. Chicago, appellant Clausen, Kouba, T. Marco of
James Ferrini and Lisa P.C., Miller, Gorman, Witous, of for Chicago, & Caffrey Smith Pharmacal. appellant C.D.
Burditt, Radzius, Chtd., (Robert & of Chicago Bowles Favoriti, G. Richard E. of for counsel), ap- and Epsteen & pellant Boyle Company. Associates, Chtd., Chicago (William
Grotefeld & of Grotefeld, Mas- Stewart of S.E. counsel), appellant sengill Company. Power, D. (John & of
Hayes Chicago Hayes, Joseph Power, Jr., A. A. Novoselsky, counsel), and David appellee. Kirk K. Jr.,
James C. T. Murray, Hartley Marcy for ami- Weaver, Katten, Zavis, Muchin & Chicago, cus Illinois Manufacturers’ Association. curiae & Conway, Chicago (Kathy Byrne
Cooney Illinois for amicus curiae counsel), Kevin J. Conway, Trial Association. Lawyers *4 the court: opinion
JUSTICE RYAN delivered that she was in- The in this plaintiff appeal alleges her (DES), jured by drug diethylstilbestrol mother ingested She seeks relief during pregnancy. defendant DES against manufacturers. The issue is whether, in a strict negligence and cause of liability action, Illinois should substitute the element of causa- tion fact a of market theory share when iden- liability tification of the manufacturer of the drug injured the plaintiff is not The trial court possible. granted defendants’ motion for as to summary judgment various counts of the count, complaint, including negligence but denied the defendants’ motion as to the strict prod- ucts count and liability market share adopted in Sindell Abbott Laboratories theory developed 588, 924, 26 Cal. 3d (1980), P.2d Cal. 132. Rptr. The court appellate affirmed the trial court’s as holding count, to the products but reversed the trial court’s holding count, as to the negligence holding the market share should both apply plain- tiff’s and strict Ill. negligence (173 counts. App. However, Sindell rule which the 1.) 3d it rejected trial court had adopted instead the market adopted recognized in Martin v. as it was liability theory Abbott Laboratories 102 Wash. 2d 689 P.2d 368. court affirmed appellate The the trial court’s entry summary judgment defendants on the other granted counts. We defendants’ for leave to petition ap- Ill. 2d R. peal (107 315).
I. FACTS The Smith, Sandra was born on plaintiff, July In Illinois. she was admitted to Chicago, the Ravenswood where she Hospital Chicago, under- went a dilation and and an ex- curettage, cervical biopsy, cisional wall. revealed biopsy vaginal biopsy had a form of cancer known as clear cell adenocarcinoma of then vagina. She was transferred to the she of Illinois where under- University Hospital,
227 DES the alleges Plaintiff surgery. extensive went in útero was plaintiff her mother while prescribed the cancer. caused mother, history had a Smith, plaintiff’s
Elizabeth to San- birth she gave before with pregnancy difficulty her learned of she Therefore, when early dra. in Chicago Field Clinic she went to the pregnancy, condi- her Davis regarding Dr. Jack E. consulted with to be Mrs. Smith a prescription The doctor gave tion. The practice for “Tab 98.” the clinic pharmacy filled at dispense drugs by store and the Field was to at Clinic The record establishes than name. number, rather by of DES. tablets 25 designated milligram Tab until DES daily up to take tablets Mrs. Smith continued Dr. Davis attended to Sandra. the time she birth gave the time her but throughout pregnancy Mrs. Smith filed he was deceased. this suit was identify Clinic from Field
The records recovered clinic, to the drugs which companies supplied numerous DES, these are but were also suppliers some which dis- drug with company insufficient to match responsible mother. The person to the plaintiff’s pensed stocked at products the pharmaceutical purchasing the time this suit by had also died the clinic’s pharmacy knows the Therefore, although plaintiff was filed. took, mother she her color, drug dosage size manufacturer identify specific is unable to product. as naming filed her initial complaint
In to an affida- According 138 drug companies. defendants Eli &Lilly of defendant Kraas, an employee vit of John marketed companies there were Company, and 1953. between DES in 25 tablets milligram medical and pharma- from This information was derived manu- potential references. Of industry ceutical mother, 63 by plaintiff’s of the DES taken facturers were not named in the Of the 138 complaint. companies named, 70 filed Motions appearances. were filed a number of named defendants attacking jurisdiction, as- serting changes corporate structure or ownership would bar successor liability, charging error of iden- tity. Twenty companies remained in the suit after these motions were resolved.
In November plaintiff filed second amended complaint of 11 consisting counts. Counts I through VI sound in strict negligence, breach of liability, express *6 fraud, warranty, breach of implied and viola- warranty, tion of Food, the Federal Drug, and Cosmetic Act. Counts VII and VIII sound in and conspiracy pray assessment of on damages various bases of concerted action, and joint several liability and joint enterprise lia- Counts IX X bility. and allege theories of negligence and strict and liability, respectively, invoke market share as the means for The apportioning damages. thrust of these causes of action is that the drug companies failed to properly test DES and to warn of its dan- adequately gers. The last count is a tort against action the Field Clinic. There are apparently no motions on this pending count.
Following completion defendants discovery, filed a joint motion for Some summary judgment. of these defendants and a number of others filed individual mo- tions for on the summary judgment ground that plaintiff’s mother did not use their products. Twelve defendants were able to on the exculpate themselves ba- sis that could not have they manufactured the DES that plaintiff’s mother took because their either product was not of the same color or not dosage, was sold to type, the Field Clinic. The manu- remaining eight defendant Laboratories, facturers included Eli & Abbott Com- Lilly Premo pany, Laboratories, Inc., Pharmaceutical Carroll Dunham Rorer, Smith Pharmacal H. Company, William Laboratories, Harvey Inc., Massengill Company, S.E. Inc., & Company. and Boyle summary motion for joint court granted
The trial the second amended I IX of through on counts judgment denied the motion with However, the court complaint. action, and X, to count the strict respect the theory market share based on liability, adopted Sindell articulated the California Court Supreme Abbott Laboratories 26 Cal. 3d 607 P.2d The the denial 132. defendants Rptr. appealed Cal. X to count as summary judgment of their motion of sum- the trial court’s grant plaintiff cross-appealed I As noted through as to counts IX. mary judgment likewise above, adopted court appellate from although ap- market share different liability, court, the trial and extended its application plied by affirmed the count. The court negligence appellate The defendants filed a pe- dismissals the other counts. this court on the de- tition for leave to based appeal on IX judgment nial of their motion for counts summary X, (107 and we leave Ill. 2d R. granted appeal from the dis- 315). cross-appealed has missal of the other counts.
II. HISTORY OF DES its mar- The of the of DES and development history chronicled, es- in this has been keting country repeatedly in cases which address the issues conspiracy pecially v. Eli Ryan Lilly & Co. and concert of action. (See Martin, 1004; 514 F. Wash. 2d 1981), Supp. (D.S.C. 368; Sindell, 26 Cal. 3d 607 P.2d 581, 689 P.2d v. Premo Pharmaceutical Lyons 132; 163 Cal. Rptr. Labs, Inc. (App. Div. 170 N.J. 1979), Super. A Note, Causation Conundrum: DES 185;
A.2d Analysis, Functional (1987); Sch. L. Rev. 939 N.Y.L. A New Re- Liability: Market Share Method Comment, covery D.E.S. Litigants, 30 Cath. U.L. Rev. Nevertheless, (1981).) before into the getting issue, we believe that a brief account of the drug’s will be history helpful.
Diethylstilbestrol is a synthetic substance which dupli- cates the activity a estrogen, female sex hormone cru- cial to sexual and development Professor fertility. E.C. Dodds and his associates first the synthesized in drug England 1937. The drug was not patented by Profes- sor Dodds, but was left available for general production by pharmaceutical In companies. a number of pharmaceutical companies the United States sought approval the Food and Drug Administration (FDA) to market DES in to 5 up milligram doses to treat vaginitis, of the engorgement breasts, excessive menstrual bleeding symptoms Stand- menopause. ard FDA procedure of a required filing new drug application (NDA), which included clinical data es- tablishing drug’s safety, its chemical composition, methods of manufacture, the proposed uses of the drug and proposed In an labeling. effort to avoid duplication of time and effort in determining sufficiency documentation presented, the FDA requested drug withdraw their companies NDAs and submit their data in a master file. jointly Accordingly, working com- mittee of four was companies formed which collected all the data, prepared master file and it submitted the FDA. In 1941, the FDA September approved the production and marketing of DES for the requested uses, none of which were for related to problems preg- nancy.
The first supplemental NDAs FDA seeking approval for DES as a miscarriage preventative were filed 1947. These NDAs filed were and relied on separately clinical studies in medical published journals which at- tested to the safety effectiveness of DES for this
231 these applica- approved The FDA subsequently purpose. no that DES was FDA declared 1952, In tions. of the Federal meaning drug a new within longer con- therefore Act, and was Food, and Cosmetic Drug, meant that This declaration use. general sidered safe for without submit- drug could market manufacturer any its concerning safety the FDA data to additional ting 1947 and approxi- Between and effectiveness. the end of DES. By manufactured companies mately and dis- manufacturing were companies up tributing DES. there suggested
In medical studies two association between significant was a statistically adenocarcinoma, of clear cell women outbreak young of DES cancer, ingestion with the maternal a form of FDA Later that banned year during pregnancy. women. It has pregnant of DES use by
marketing that at the time of this ban as as many been estimated Many had DES for sale. produced 300 companies existence, no longer having these are companies into Al- gone liquidation. with other concerns or merged DES is no it is longer during pregnancy, used though as an in cases of estrogen still prescribed replacement unusual menopausal hormone treatment of deficiency, kinds cancers and for treatment of certain symptoms, is a major ingredient of the prostate, breast contraceptive. after” a post-coital the “morning pill, 1970s, hundreds of lawsuits were in the Beginning DES daughters manufacturers of filed against These pregnant. plain- women took the while drug who to as the “DES daughters.” are referred commonly tiffs suffer cannot be injuries they The seriousness for Sandra required and the hysterectomy questioned Eli Co. Lilly Bichler v. & (See Smith was not unusual. 182, 184, 450 571, 577, 436 N.E.2d 55 N.Y.2d E. Frosst & Co. 778; Namm v. Charles N.Y.S.2d (App. Div. 1981), N.J. Super. 25-26, 427 A.2d *9 1121, 1124; Lyons v. Labs, Premo Pharmaceutical Inc. Div. (App. 1979), 170 N.J. 183, 189, Super. 406 A.2d v. Enright 185, 188; see also Eli Lilly & Co. (Supp. 141 1988), 194, Misc. 195, 2d 224, 533 N.Y.S.2d 226.) The us, defendants before however, out that point statis tics regarding DES daughters have not a shown in high cidence of cancer and that it is not widely accepted that the injuries suffered are the of the consequence maternal DES (see, e.g., Sindell, ingestion 620-21, Cal. 3d at 942, P.2d at 163 Cal. Rptr. (Richardson, J., (incidence dissenting) of cancer is estimated at one-tenth of one to percent four-tenths of one percent)), though the plaintiff contests these assertions. Whether or not there is a correlation sufficient to a establish cause of action is an issue the properly finder of fact. We have before us legal issue of the of the viability causes of action.
III. SUBSTANTIVE TORT PRINCIPLES A fundamental of tort principle law is that the plain tiff has the burden of proving a by preponderance evidence the defendant caused the complained-of harm or mere or injury; conjecture is insuffi speculation (Schmidt Works, v. Archer Iron Inc. (1970), cient proof. 44 Ill. 405-06; 2d M. Polelle & B. Illinois Ottley, Tort 422-23 (1985); Annot., Law 51 A.L.R.3d (1973) (“it is obvious that to hold a manufac producer, turer, or seller liable for caused a injury particular product, there must first be the defendant proof produced, manufactured, sold, or was in some re way sponsible for the In a product”).) action this negligence causation-in-fact entails a requirement reasonable con nection between the act omission of the defendant and the which the damages has suffered. plaintiff (See Ney v. Yellow Cab Co. 79; 2 Ill. (1954), Keeton, 2d W. §41, (5th Prosser & Keeton on Torts at 262 ed. 1984).) of strict is that one who sells defec- tive product unreasonably user liable dangerous v. White injury. (Suvada Motor Co. resulting 612, 621, 623; 32 Ill. 2d (1965), Restatement (Second) Torts strict (1965).) Likewise, recover under li- §402A must ability establish some causal relation- ship between defendant the injury-producing & See M. Polelle B. agent. Ottley, Illinois Tort Law 581 (1985). Works, Schmidt Archer Iron Inc.
In 44 Ill. 2d a defective used to pin attach a metal chute to a failed, construction tower the chute to fall allowing strike Plaintiff plaintiff. sued Archer and evidence established that defective was in color pin similar *10 the pins defendant, manufactured by but several other manufacturers produced similar We affirmed the pins. trial court’s of grant summary judgment, reasoning that: plaintiffs’
“The evidence failed to establish sufficient connection between the admittedly pin defective and *** Archer. evidence no more than that [The] shows. Archer one was of several possible manufacturers which supplied couldhave pin.” (44 405-06.) Ill. 2d at The identification element of in causation fact serves an in important function tort law. Besides assigning blame worthiness to it culpable parties, also limits the scope of potential liability and thereby useful encourages activity that would otherwise be deterred if there were excessive to Liability Products exposure Fischer, liability. —An Analysis Market Liability, Share 34 Vand. L. Rev. of 1623, 1628-29 (1981).
The us plaintiff alleges before after extensive she has discovery been to identify unable the manufac- turer DES her mother A ingested. of cir- number cumstances contribute to the barrier in establishing cau- sation fact The DES cases. effects caused by to them- prenatal DES do manifest exposure usually selves after and until at least the child reaches puberty, more before the cancer is linked to DES. years may pass doctor, During this whatever long lapse, records or manufacturer maintained have often been pharmacy lost or and the memories of the in- destroyed persons volved faded. exacerbating have Further the problem the fact that the 25 used to during DES was years treat problems, as as 300 com- pregnancy-related many manufactured The manufacturers were panies drug. law to maintain records for five years required gone manufacturers have either out of busi- many their or have rec- ness records destroyed only partial ords available. in fact is an in- ordinarily causation
Although proof case, of a dispensable ingredient prima plain- facie com- tiff out that tort interests have points competing create the causation pelled exceptions courts These to the rule have allowed a requirement. exceptions to a or a group to shift defendant defendants on Included burden of the causation issue. proof within are “alterna- “enterprise liability,” the exceptions tive share liability.” “market liability” liability,
In to market share most plaintiffs addition or al- argued enterprise liability the DES cases have and a as well as a concert action liability, ternative to a should extend conspiracy theory, apply group defendants. on a cause of action based necessary criteria *11 “(1) have summarized to include: been
enterprise liability one by was manufactured product injury-causing (2) small of defendants an industry; a number inherent had risks joint knowledge defendants reduce joint capacity a product possessed failed to take steps of them risks; (3) each those this but, rather, delegated responsibility reduce the risk
235 to a trade association.” (Emphasis omitted.) (Burnside Abbott Laboratories (1985), 264, 285, 351 Pa. Super.
A.2d 973, 984; see also Hall v. E.I. Du
Pont
De Nemours
(E.D.N.Y.
& Co.
1972),
Though
market share liability
has
received
some
acceptance,
nearly
instance, the
every
other the-
ories have been soundly rejected. (See, e.g., Ryan v. Eli
Lilly
(D.S.C.
& Co.
514 F.
1981),
Supp.
(civil con-
concert of
spiracy,
action, alternative
and enter-
prise liability rejected); Burnside v. Abbott Laboratories
351 Pa.
(1985),
Super.
505 A.2d
(no
conspiracy,
concert of action or enterprise liability); Collins v. Eli
Lilly Co.
Wis. 2d
37 (no
N.W.2d
conspiracy,
action,
concerted
enterprise
or alter-
native
Martin, 102
liability);
Wash. 2d
236 676 241 alternative concert of
1984),
(no
liability,
S.W.2d
Sindell,
588,
3d
action or
26 Cal.
enterprise
liability);
action,
924,
P.2d
163 Cal.
132
of
en
Rptr.
(concert
607
Bich
liability rejected);
and alternative
terprise
Eli
ler v.
& Co.
Lilly
571,
55 N.Y.2d
436
(1982),
N.E.2d
DES
182,
(because
IV. PROMULGATED JUDICIALLY SHARE THEORIES A. California v. Abbott Laboratories Sindell 26 Cal. In 3d Su- the California P.2d Cal. Rptr. for her three Court bases rejected plaintiffs preme lia- the alternative cause of action and instead modified li- thus its form market bility fashioning theory, conclusion, In the court reasoned reaching this ability. in a industrialized society, contemporary complex goods advances science and create technology fungible harm which traced consumers and cannot be may *13 to three any producer. It then went on to specific give reasons for market policy liability. share developing First, an plaintiff as between innocent and a manufac- turer of a defective the product, manufacturer should Second, bear the that cost it the injury. believed in manufacturer was a better to the cost position bear Third, involved in an the is injury. because manufacturer in the best to defects position in and recognize products to guard them, the against liable for holding producer these would defects an provide product incentive to safety.
Under the Sindell, as in remedy plain- fashioned the tiff must join first as the defendants manufacturers of a “substantial share” of the DES which her mother may taken, have and must prima a case prove on every facie element the except identification of direct Af- tortfeasor. ter manufacturers, the the joining burden of shifts proof to to defendants demonstrate that they could not have the manufactured DES that caused If plaintiffs injuries. a defendant to burden, fails meet this the court fashions a market share theory apportion damages according to the likelihood that of defendants any the supplied product each by holding defendant liable for the propor- tion of the judgment represented by its share of that market. The intended result the rule is that man- each ufacturer’s for liability an is injury equiva- approximately lent to damages the DES it caused the manufactured. by
The Sindell court realized that rule was not flaw- in Brown v. Court and, less Superior 44 Cal. 3d 751 P.2d 245 Cal. Rptr. the California Brown some of the ambiguities. Court resolved Supreme is not theory joint held that share several, Furthermore, rather it is several. in the market are not cases in which all manufacturers will limited the market repre- joined, than sented, recovery in a less 100% resulting plaintiff. Sindell has not been widely its ac
From inception Sindell, Richardson, In Justice two joined cepted. dissented, that was arguing majority other justices, tort crea a traditional abandoning requirement new, modified, tort. of a Justice industry-wide tion will result argued imposi Richardson it and that rewards conjecture tion of on pure no who, the ordinary plaintiff, longer unlike to take the defendant responsible has chance financially. cannot be reached or unable respond Therefore, “it is ‘market share’ lia apparent readily fall unevenly upon will bility disproportionately *14 are to suit manufacturers who amenable those [those some form of adopt theory].” few which jurisdictions (Sindell, 940, 607 163 617, 26 at P.2d at Cal. Cal. 3d J., The dissent (Richardson, dissenting).) at 148 Rptr. making has the effect of stressed that the opinion phar and of that companies industry maceutical insurers their effect of share market liability, because sweeping it introduce define should rest decision to policy the legislature. the court with with but concept than the overall liabil Other later the rule opinion, will be addressed this ity, in Sindell has been extensively developed as specifically Federal district this date one criticized, only as of (McElhaney in the same form. has it adopted court Co. (D.S.D. 265, Eli & Lilly 564 F. 270-71 1983), Supp. Dakota law).) would South what it be thought (applying identify the court failed include that Criticisms
239
determining
relevant market for
a particular
purposes
share, i.e., local,
defendant’s market
state
countywide,
national,
wide or
and a manufacturer’s
will
vary
uncer
on which market
is used. This
widely depending
li
undermines the court’s claim that market share
tainty
each defendant’s
for
ability approximates
responsibility
Products
caused
its own
injuries
(Fischer,
by
products.
Lia bility
Analysis
Liability,
Market Share
— An
34
L.
1623,
Vand.
Rev.
1643-44
The
also
(1981).)
court
failed to define what constitutes a “substantial share” of
market,
one which is sufficient
shift the
burden
A
proof
the defendant.
law
article
review
influ
enced the court
suggested
plaintiff join 75% to 80%
of the manufacturers
Proposed
DES and a
(Comment,
Theory
Enterprise Liability, 46 Fordham L. Rev.
963, 995-96
but the court
(1978)),
rejected this as too
high and held that
a substantial
is re
percentage
(Sindell,
quired
26
612,
937,
Cal. 3d at
_, 37, Martin Abbott Laborato 48-49; N.W.2d ries (1984), Wash. 2d 689 P.2d 380.
B. Washington
Sindell rule is
The
most
the
closely paralleling
the “market
share alternate
which the
liability” theory
in Martin v.
Abbott
Court
Washington Supreme
adopted
Laboratories
(1984),
Wash. 2d
The market alternate that the liability theory court formulated allows the Washington plaintiff bring suit one defendant. The must against prove that DES; her mother took the DES caused subsequent injuries; defendant marketed produced type mother; DES taken and the by production plaintiff’s a marketing legally recognized duty DES breached The then shifts to the defendant burden plaintiff. it did not prove pro- evidence by preponderance mother; duce or market of DES taken type did not or market DES in that geographical produce time. area; or did not or market DES at produce unable to them- exculpate defendant or defendants DES market. selves become members of plaintiff’s v. Parke-Davis George 584, 592, In Wash. 2d 507, 512, 733 P.2d the court clarified geographic *16 market area ideally level; should be defined on a local however, where unavailable, such evidence is county, State, or even national to de- figures may be admissible termine the market share. are
Defendants an presumed initially have equal market share and are liable on a rata pro basis. They rebut may this their actual presumption by proving mar- ket share and are then liable for that percentage damages. share of presumptive the defendants that are unable establish their actual market share is adjusted upward so that 100% the market is ac- counted for. If all defendants are able to their establish actual market share and the percentage is less represented 100%, than plaintiff’s lim- recovery is ited to that percentage of the market which is actually represented. Our appellate court this case and a Fed- eral district court in Massachusetts have subsequently adopted this theory. 173 Ill. 3d at App. 18; McCormack v. Abbott Laboratories (D. Mass. F. 1985), 617 Supp. 1521, 1527 (court held the was consistent theory with statements the State court supreme made Payton Abbott Laboratories 386 Mass. 437 N.E.2d 171).
The Martin alternative was formulated in part on the
erroneous belief that Sindell created
and
joint
several li-
ability and that it increased the share of each defendant
found liable
the share
attributed to nonjoined manu-
(Martin,
facturers.
601-02,
Wash. 2d at
dell must at least a num- bring substantial court, ber of potential defendants before the whereas Martin to sue one If only requires plaintiff defendant. sole defendant is a small contributor to the DES market, such as Boyle Massengill, it could possibly shoulder complete without of its proof being Second, cause in fact for the a smaller injury. company which no has records of its actual market longer share under Martin which is will given presumptive Thus, unattributed. equal portion damages *17 the small could be or more company responsible 50% of the when damages common sense dictates that it could not have surely distributed such a high percentage of the DES used in Also, the market. defendants as- signed shares are presumptive held liable for the share of the market attributable to in companies longer no business or not otherwise amenable to suit. This makes those defendants insurers of products others Therefore, made. this can be unfair theory substantially to to any company share, unable its market prove if that is small. especially company
C. Wisconsin
The Wisconsin
Court addressed the DES
Supreme
lia-
Collins v. Eli
Lilly
Co.
issue
bility
Wis. 2d
166,
company approval drug, and issued whether company warnings. court, court, other
No than the Wisconsin addressing the DES causation has gone impose issue so far as to- tal on a defendant for a risk of merely creating harm. It has this been said that contravenes theory tort that a fundamental mere is in- principle possibility The DES Cau- Note, (See sufficient causation. satisfy sation A Functional Analysis, Conundrum: N.Y.L. Rev. 939, (1987) Sch. L. 965-66 of (imposition under a approach this substantial reduction in requires and degree proof traditionally thus required, threatens It has over-deterrence been inequity).) Collins that contended not resolve er- perceived does its rors in market but rather further exacer- liability, & on Perspectives Market (Miller Hancock, bates them. Reassessment?, a Liability: Share Time 88 W. L.Va. 99-101 increase, Rev. costs will there is (litigation a risk evidence, with overwhelming jurors Sindell mini-trial is transformed a maxi-trial into on a Furthermore, it plethora issues).) possible lia- far a will exceed the defendant bility probability Torts —Products Liabil- Comment, injuries. caused the a Cannot Which ity Identify Drug —Where Plaintiff a Cause Company Ingested, DES Manufactured Exists Action Under the Market-Share Alternate Theory Liability, (1985). Miss. L.J. New York
D. The court of of New York declined to appeals recently contribution theory, Wisconsin’s risk accept believing (Hymo- on scale. it feasible a limited would Eli witz v. & Co. Lilly 73 N.Y.2d 941.) The court was “of wary N.E.2d N.Y.S.2d loose, the hundreds of cases setting application State, in this the fact pending requires
245
assessment of the
finder’s individualized and open-ended
case.”
every
relative
of scores of defendants
liabilities
1077-78,
511,
N.E.2d at
(Hymowitz,
New York’s utilizes could not court did this that a national market realizing the risk a reasonable link between provide Instead, created a defendant to a by particular plaintiff. this so as to theory apportions “liability correspond defendant, the over-all of each measured culpability each defendant created to amount risk of injury (Hymowitz, 73 at 539 N.Y.2d public-at-large.” A can 950.) N.E.2d at 541 N.Y.S.2d defendant itself that it not did exculpate only through proof partici- in the of DES for use. The pate marketing pregnancy rule also is several and is provides only, if be inflated all the manufacturers are not before court. Hymowitz it is too to determine how
Though
early
received,
in its de-
will be
it
most radical
certainly
from
tort
and it is admit-
parture
principles
established
it
flawed
cannot
to actual
tedly
equate liability
harm
(Hymowitz,
caused.
V. COURTS WHICH HAVE REJECTED SHARE LIABILITY cases, Other than these of market share concept The has not received liability strong support. supreme courts of two of our sister States have re- outrightly its in DES jected application daughter cases.
The Court the doctrine “on a Supreme rejected Iowa broad basis.” v. Eli & Co. policy (Mulcahy Lilly (Iowa 1986), 75.) Mulcahy 386 N.W.2d equated awith court-constructed insurance plan requires manufacturers to their not pay injuries product may have caused. It market as a recognized share radical from traditional tort and it concepts departure “ ” in the air’ as a serve rejected allowing ‘negligence (386 substitute for causation in fact. N.W.2d quoting Pollock, (11th . The of Torts 455 ed. 1920).) Law F to an awarding damages court concluded “that ad innocent of a mitted means court-constructed party by device that on manufacturers who were places liability to have caused the involves social proved injury engi more within the domain.” neering appropriately legislative 76. cahy, Mul 386 N.W.2d at The Missouri Court with Supreme agreed argu- lia- ments of the manufacturers that market share drug to Missouri unfair, was unworkable and contrary bility v. Eli the State’s public policy. (Zafft law and violated The court (Mo. 1984), 246.) & Co. S.W.2d Lilly found that had not articulated the sufficiently Sindell Furthermore, too involved. there was concepts great risk was not before the court wrongdoer that the actual joined and the rule those who were exposed the argu- rejected than their greater responsibility. Zafft and negli- ments that innocent plaintiff as between an in- the cost of the defendant, the latter should bear gent It the costs. that defendants can better absorb and jury, had not causation proving noted that requirement law of products liability been altered by development to the Thus, proof in Missouri. burden shifting alter existing rights defendants would significantly It also reasoned that strong liabilities of the litigants. militated public arguments against policy The court was concerned that this liability. research would desired type “discourage pharmaceutical while little incentive development adding produc- tion of safe all face products” companies poten- because *21 tial regardless (676 of their efforts. liability safety there in- 247.) S.W.2d at The court concluded that was sufficient abandon- public policy justification support ment of so fundamental a of tort law as the re- concept minimum, that a at a a nexus quirement plaintiff prove, between wrongdoing injury.
Most of the which addressed the Federal courts have issue of market share in a DES case applying liability from the have declined to such -a radical adopt departure common law of the State in each without a sits In clearer direction from that State’s court. supreme Lilly Tidler v. Eli & Co. 418, (D.C. 1988), Cir. 851 F.2d the court reasoned “that the would plaintiffs have us ‘construct’ that we build on a new foun requires dation, not on the structural of the tradi underpinnings (851 tional common at 424.) law of torts.” F.2d Neither court of nor of the District of Co highest Maryland and the Tidler court issue, lumbia had addressed held that such a marked deviation from the common law v. of a Federal court. Mizell In was beyond authority Lilly Eli & Co. 589, 526 F. the dis (D.S.C. 1981), Supp.
trict court found that to conflict of law according princi ples, law, California and thus the substantive Sindell rule, However, was the choice of appropriate law. court refused to California apply substantive law because it would violate the of the forum. The court public policy concluded that share a radical de represents “[m]arket parture from the body products law that has liability been in South Carolina” and has the developed potential for placing on defendants who bear no responsi for the defective 526 F. bility product. 596; see Supp. also Morton v. Abbott Laboratories (M.D. Fla. 1982), F. Supp. (“market share theory unquestionably a represents radical from the departure traditional con of causation” and cept there was no indication that Flor ida would abandon such a fundamental Pipon principle); v. Burroughs-Wellcome Co. (D.N.J. 1982), 532 F. Supp. 637, 639 (there no indication that the New Su Jersey Court would from the preme deviate causation require ment), (3d 1982), 984; Cir. 696 F.2d v. Eli Ryan aff’d & Lilly (D.S.C. Co. F. 1019. 1981), Supp. Plaintiffs have of market pursued application share with minimal success in other areas than DES cases. The plaintiff Shackil Lederle Laborato ries N.J. 561 A.2d became severely a retarded as result of a diphtheria, and teta pertussis' nus vaccine. (DPT) Unable to manu identify specific facturer, a sued number of manufacturers who could have the vaccine she potentially produced was of market given argued adoption determined that theory. court market share adopt *22 in DPT “case would frustrate liability overarching pub considerations lic-policy public-health by threatening continued needed availability drugs impairing of the of safer prospects development vaccines.” 158, N.J. at A.2d at (116 512.) court’s decision was further influenced the fact that Congress had al- established ready legislation to vaccine-in compensate jured plaintiffs. (National Childhood Vaccine Act Injury 1986, 42 U.S.C. 300aa—34 through (Supp. §§300aa—1 V The court 1987).) also addressed the plaintiff’s argu ment that there was a trend in New to relax the Jersey causation It requirement. noted that a trial court in Fer v. Eli rigno Lilly & Co. (1980), 175 N.J. 420 A.2d 1305, held that alternative liability based on a percent age-share apportionment was in a DES permissible case. However, that was complaint dismissed following ap court pellate opinion Namm v. Charles E. Frosst & Co. Div. (App. 1981), 178 N.J. 427 A.2d Super.
which refused to adopt alternative liability enterprise in a DES action. further Upon review of New law, it Jersey found that there was no trend toward wholesale adoption market share liability.
The Oregon Supreme Court rejected use of the the
ory against
two DPT manufacturers
in the context of a
design
(Senn
defect.
Pharmaceuticals,
Merrell-Dow
Inc.
305 Or.
250 583, 3d 192 Cal. Rptr. & Co. 144 Cal. Lilly (1983), App. market share (rejecting application 870 but see vaccine); manufacturers of Salk polio against Parke, Davis 667 F. Morris v. & Co. 1987), Cal. (C.D. man- share liability against 1332 market (applying Supp. man- allegations industry of DPT based on ufacturers defects). ufacturing manufacturers, drug in actions against
Other than have at- of cases which plaintiffs area major has been asbes- market share tempted impose is consider- rate in these cases tos The success litigation. In Goldman cases. less than DES ably 40, Corp. (1987), Sales 33 Ohio St. 3d Johns-Manville its 691, rejected Court ap- 514 N.E.2d the Ohio Supreme manufactur- in an action and against suppliers plication of a per- ers of asbestos wife containing products to asbestos exposure. son who died due allegedly is inappro- market share liability court reasoned that it case, where especially “in an asbestos litigation priate in- to which the products cannot that all be shown fungible.” (33 are jured exposed completely was party Moreover, the risk at 700.) Ohio St. 3d at 514 N.E.2d reflected in created is not accurately the manufacturer contain differ- many products its market share because asbestos, asbestos largest sup- ent degrees Johns-Manville, to suit. Instead was not amenable plier, the court concluded theory, such a divergent adopting of a solu- legislative more in need that the was problem P.2d 1987), 743 Corp. tion. See Case v. Fibreboard (Okla. on the favoring recovery (“the public policy abroga- justify does not of an innocent part to have defendant of a rights potential tion of specific that defendant’s link causative between proven Mullen v. injuries”); tortious acts and plaintiff’s Industries, Inc. App. 200 Cal. World Armstrong Co. v. A.C. & S. (Del. Nutt 32; 250, 246 Cal. Rptr. 3d 1986), (rejecting A.2d Super. in tort law change such a recognizing
should left to the Bateman v. Johns-Man legislature); 1132; Thomp ville 781 F.2d Corp. (5th 1986), Sales Cir. 1983), 714 (5th son v. Sales Cir. Corp. Johns-Manville 581; (E.D. 1987), F.2d Marshall v. Celotex Mich. Corp. (“asbestosis *24 litigation inap F. is an Supp. area in which to market share liabil propriate extend ity”); Starling (S.D. Coast Line R.R. Co. Seaboard Ga. 533 F. 183; see also Cummins v. Fire 1982), Supp. stone Tire & Rubber 344 Pa. Co. Super.
A.2d 963 in (rejecting against action manufactur theory ers rim tire and assemblies because multipiece prod ucts similar are not to considered sufficiently be identical or (Minn. Bixler v. Avondale Mills fungible); 1987), App. 428 (cotton N.W.2d flannelette not fungible product).
VI. MARKET ANALYSIS OF SHARE IN ILLINOIS
Each the four courts which have some adopted form of market share has criticized and ulti in mately whole in the rejected part as devel in oped the other jurisdictions. Our appellate court also recognized its flawed theory may be but accepted this and believed that could eventu subsequent opinions ally resolve uncertainties which develop, but other have courts been unable to in apparently resolve the past (173 22.) decade. Ill. 3d at conclude App. We that market share is not sound is too theory, great a from our tort deviation existing principles should in cases applied brought by plaintiffs who were to exposed DES while in utero.
In addition to the already criticisms expressed by courts which recognize market share we nu- liability, see merous its A in problems major flaw, with re- adoption. cases, to DES gards there is a small amount of, no, or in some cases reliable information to available
establish the defendants’ market. As percentages earlier, mentioned no can be blamed for this fact. party in is, It in the result of laws effect part, regarding relating long maintenance of records and factors in time from the of the to the drug filing sale lapse The lack records is the lawsuit. of available evidenced after extensive discovery plain- this case the fact that tiff manufacturer. was unable identify responsible named are no of those defendants who have been Many challenging or have filed motions longer business it is un- for these jurisdiction companies especially their records will be available establish likely share of market. any market share adopted courts which have motions and have
have done so while on ruling pretrial not had the benefit of first heard evidence on having Sindell, 26 Cal. (See of market share data. availability 937-38, 163 Cal. at 145-46 Rptr. 3d at 607 P.2d in- (“We problems are not unmindful practical determining the market and defining volved *25 share, matters of which largely proof prop- but these are of these cannot at the pleading stage be determined erly the courts, these we have benefit Unlike proceedings”).) the trial courts in California which experiences the instructed to market share apply have been trial determined that Francisco, In San the court theory. for “market” or definition logical practical scale the parties would have to on a national because market, on a more narrow were unable to data present it should at- court directed State supreme expressed in Los Angeles to do. The trial tempt judge formulate attempting the task of exasperation with examining four weeks market shares after over spending v. Abbott Laboratories (Stapp (Super. the DES market. harsh (“The No. C County), Ct. Los Angeles that infor- is that has shown blunt fact the evidence mation and data not available” and just “when Su- *** Court, preme without having any says evidence can you determine what the as to a particular [sales are] manufacturer, it’s That just, just there. data doesn’t exist”).) Plaintiff here argues the trial difficulty in judge Los Angeles experienced could be attributed to uncooperativeness the defendants. The transcripts refute clearly this assertion. The began his judge analy- sis of the situation by thanking the for all parties their and for the cooperation highly professional manner which the case was presented. judge then went on to criticize those who the market developed share theory because of their obvious lack of trial experience knowledge as to what go would into proving case based on the theory.
Acceptance market share and the concomi- tant burden on the placed courts and the parties will im- bog down the prudently in an judiciary almost futile en- deavor. This would also create a cost, tremendous both terms of the monetarily workload, on the court system and an litigants attempt to establish percent- ages based on unreliable or insufficient data. See Fischer, Products Liability Analysis Market —An Share Liability, Vand. L. Rev. 1657 (1981) (“The legal fees and administrative costs arising from of this litigation magnitude could rival the easily cost of the plaintiff’s Market Share Lia- Comment, judgment”); bility Products: An Ill-Advised Remedy for Defective Identification, Problem U.L. Nw. Rev. 323-26 (1981).
If we were to allow courts and juries to apportion damages when reliable information is not available, clear result would be that the determinations will be ar- and there bitrary will be wide variances between judg- *26 ments, without sufficient as explanation to these differ- ences. The unfairness inherent in apportioning damages for a number is increased
without evidence adequate sold who actually It is that defendant likely reasons. For in this example, the court. is not before product that 63 of the evidence have presented case defendants before court. were never 81 manufacturers potential served, out gone either have defendants were Other and due with other business, merged companies have for the cannot be held liable to successor laws to suit in Illinois. To or are not amenable DES, sale of the defend- when it is quite possible impose liability v. Ryan too the court is speculative. ant is not before Eli & Co. Lilly 1004, 1007, 514 F. 1981), Supp. (D.S.C. 1018. a true to
Moreover, say percent- it is unrealistic the defendants market can be established by of the age of the use of history court. Throughout before the of manu- hundreds miscarriage DES as a preventative, it is impossible the product facturers produced defendants who do courts. The them our bring before their time to establish enough a difficult will have appear meet this task but de- Those cannot market shares. who the diffi- will have sire to reduce their potential shares of manufacturers establishing cult burden Parke-Davis, George (See not before court. order to inhibit (in at 733 P.2d at Wash. 2d corpora- insolvent from randomly impleading defendants liability, of presumptive reduce their tions actual market are establish required defendants likely The result would defendants).) share of impleaded that other dictates that, common sense though even makes share liability are responsible, companies their mar- to establish those which are unable companies and dispropor- a wholly speculative ket share liable Sindell, 3d Cal. damages. (See tionate amount at 147-48 939-40, Rptr. 163 Cal. P.2d at speculative J., dissenting) (it highly (Richardson, *27 255 defendant’s liability equals harm actually caused); Fischer, Products Liability Analysis Market —An Share Liability, 34 1623, Vand. L. Rev. 1645-47 (1981) (Sindell rule distorts defendant’s If inherently liability).) of this goal is to theory attribute in accord damages ance with harm a caused, accurate market truly should be limited to those manufacturers DES which was used as a miscarriage preventative their share of that narrower market because the drug was and is safe for the other for which it was sold. (Cf. purposes Hymowitz, 73 512, N.Y.2d at 539 N.E.2d at N.Y.S.2d at 950 not, (realizing liability will over the run cases, approximate causation).) this Surely, spe cific market would be to nearly impossible establish.
Market share also has the liability potential to treat plaintiffs who cannot identify specific manufacturer for the responsible DES maternally ingested more favor- than one ably who can. In a tort case typical the plaintiff takes the risk that the defendant will be unable to as- sume financial responsibility injuries caused. How- ever, with the market share theory, spread throughout members of the industry, the risk reducing that plaintiff will be without a solvent defendant. The thus punishes plaintiffs who can the identi- satisfy element, fication while an incentive creating not to lo- cate the particular manufacturer. Comment, Overcoming Burden in DES Litigation: The Mar- Identification ket Share Liability Theory, L. Marq. Rev. 632- 33 (1982) further (arguing the theory exposes defendants to double first to liability, plaintiffs who can them identify as the causal party, again to plaintiffs who cannot); Comment, The Application a Due Dili- gence Requirement Market Share Theory DES Lit- igation, 19 J.L. Reform 771, 782-83 a (1986) (without due diligence requirement there will be little incentive for a plaintiff to the causal identify manufacturer); but v. Abbott Laboratories
see McCormack (D. 1985), Mass. re diligence due (rejecting 617 F. Supp. quirement). mar- its conclusion that court supported
The appellate on part should be based adopted ket share ipsa In res exceptions. other causation two analogies loquitur the burden of identify- and alternative is shifted from the plaintiff defendant ing culpable loquitur res Kola- ipsa recognized defendants. We v. Voris kowski the plaintiff Ill. 2d where and could during surgery unconscious was while injured *28 the We stated pur- the identify negligent party. loquitur of res ipsa to establish is to allow plaintiff pose when the direct evidence circumstantial negligence by the cause of is injury primarily concerning evidence In order and control of defendant. knowledge within the inference, “must show plaintiff to advantage take which would not in an occurrence (1) that he was injured an in- (2) of negligence, by occurred in the absence have or con- under the management strumentality agency defendant, under circumstances (3) trol of the the act or on voluntary negligence not due to any were Dyback Ill. 2d at 394. But see (83 of plaintiff.” part v. Weber 232, 239 (in light compara- 114 Ill. 2d (1986), from contributory freedom plaintiff’s tive negligence, in order to make is no longer requirement negligence loquitur).) res ipsa out a prima facie In case under Tice Summers 199 P.2d 33 Cal. 2d in an action recognized alternative was liability two hunters negli- was when injured where plaintiff direction, could not as- in his but the plaintiff shot gently him. The court-de- injured hunter’s bullet certain which (Second) codified in Restatement was exception veloped reads as follows: Torts, 433B, and section tortious, more actors is of two or conduct “Where to the plain- has caused that harm been proved and it is them, tiff one there is uncertainty but as to it, which one has caused the burden is each such ac- upon tor to prove that he (Restate- has not caused the harm.” (Second) ment §433B(3), (1965).) of Torts at 441-42 As noted, court which has every addressed the issue has held, for a of reasons, number that alternative liability does not to apply DES cases.
On the surface, cases these utilizing concepts market share seem similar in liability that the each lacks evidence to establish the of the re- identity sponsible defendant and as a result the court shifts the burden of proof However, the defendants. though there exist similarities, some analogy too tenuous res ipsa loquitur and alternative on rely as a sound basis for Market adopting Comment, theory. Share Liability Products: An Ill-Advised for Defective Remedy the Problem Identification, 76 Nw. U.L. Rev. 307-12 (1981).
In res ipsa loquitur and alternative situa- tions, all parties who could have been the cause of the plaintiff’s injuries are joined as defendants. This helps preserve the identification element because will fall surely on the actual wrongdoer. contrast, By share liability merely requires plaintiff to name as defendants either a substantial share of those in the *29 market or, in theories, some one manufacturer who inwas the market. As a result, there is a real possibility that the defendant actually for responsible the is injuries not before the in res ipsa loquitur and al- Second, court. ternative liability, is burden-shifting considered equitable because defendants are in a typically better than position the to plaintiff determine who caused the harm. Market share shifts the burden to defendants without re- gard to whether better able to the identify defendant or responsible without to regard defendants’ ability who identify them is among actually responsi- cases, in these DES ble. As is demonstrated clearly than the position manufacturers are no better plain- (Kroll, Intra-Industry tiffs to identify culpable party. Liability, Joint The Era Absolute Products Liability: Third, 687 Ins. in the earlier ex- (1980).) L.J. is shifted to who bear some burden ceptions parties for In alternative lia- culpability causing plaintiff’s injury. defendant at least toward the bility, negligent each was loquitur and in res ipsa at least one defendant plaintiff, caused the and the others are con- injury intimately that caused activity instrumentality nected to the harm. But with market share the named defendant need not have been connected with directly or that caused the harm. In- activity instrumentality deed, it is that some defendants inno- wholly inevitable cent of towards the will wrongdoing particular plaintiff all for the shoulder of the part responsibility injury caused.
Plaintiff her further attempts support position by that market should contending be applied she has maintained a “sufficient connection” because be- tween each of the named defendants and the form of the her DES which caused condition. This link is allegedly efforts in joint established because ob- industry FDA to sell DES. Plaintiff out taining points approval that in 1941 a “small committee” was created to gather data and the committee submitted FDA-required jointly for an DES application approval non-preg- committee The efforts of this nancy-related purposes. FDA formed the subsequent approval basis DES other The informa- companies. manufacturing tion utilized at that time was also influential securing in 1947 for use of DES to miscar- prevent approval she has brought Plaintiff contends before riages. of the companies court all” “virtually comprised committee, has all the the small thus she parties respon-
259 DES for use as a miscarriage sible available making Moreover, to have narrowed the she claims preventative. a few and that li- number of defendants potential them. ability may imposed upon “link” is insufficient to cre-
We believe
plaintiff’s
ate what is
understood as the connection
commonly
be-
tween a
defendant and the
potentially responsible
injury-
No court which has addressed the issue
causing product.
has found that
in 1941 constituted a joint,
actions
concerted or
effort
defendants to mar-
conspiratorial
(See, e.g., Hymowitz,
506-07,
ket DES.
73
at
539
N.Y.2d
946-47; Collins,
1074-75,
N.E.2d at
The connection this between committee and a plain- tiff who suffers as a result of DES’ injuries used being to prevent is even weaker because the FDA miscarriages did not of that use of the until approve drug 1947 and under different circumstances than in 1941 and upon submission of e.g., (See, additional information. Ill. 3d at App. (our court appellate recognized joint submission of clinical data in 1941 was distinct from 1947 Reliance on the facts application process).) the 1941 comprising unwarranted unless filings plain- tiff is able to that one in the prove companies “small committee” the DES in- manufactured maternally Moreover, her gested. narrowing overestimates of defendants. The record discloses a much likely number of than the greater potential eight defendants which are before this court. To that the true defend- say ant has been located is speculative improper conjec- Schmidt, v. Great At- 405; ture. (See Ill. 2d at Tiffin lantic & Tea Co. 18 Ill. 2d 60.) The Pacific fact over sold a similar companies product similar cannot be held to have created a purposes fairly *31 sufficient nexus such each that can company responsi- ble for the the injuries by caused others’ even products, under the facts the of the unique surrounding approval manufacturing DES.
Plaintiff next that certain claims underlying principles of products laws dictate that we should liability impose on the liability (See manufacturers. 173 Ill. 3d at App. (detailing 15-16 the reasons for policy products liability).) We with the idea that on tort agree liability based law should be shouldered the responsible manufacturer or However, manufacturers. we do not believe that we abrogate should a fundamental of tort law to precept goal reach the this and effects of market ignore adopting share liability. to
Other courts have looked these underlying princi- ples when their conclusion of reaching whether not to recognize One of the bases liability. relied upon in the the adopting drug that companies are able to against better insure and liability pass costs In its On. court concluded opinion, appellate fi- drug companies were solid pharmaceutical nancial condition and would be able to insure against costs. 3d at drug-related App. 173 Ill. 26. have strongly figures
Defendants
contested
their
financial
and the im-
regarding
conclusions
status
plications
regarding
drug
other
in the
manu-
participants
further
facturing
industry.
argue
expan-
They
sions in tort
law are
results
having
perverted
certain
useful and
eliminating
production
necessary
insurance
costs such
drugs,
increasing
dramatically
can
companies
some
either
no
obtain insur-
longer
ance or cannot
the costs on to consumers.
pass
cite
they
examples
In
of these assertions
support
of po
are
because
longer
being produced
which no
drugs
gov
the Federal
tential
as well as areas where
from liability
ernment has had to intercede
protect
Note, A
(See generally
and insure
of a drug.
availability
Question
Regu
The Judicial Role in
Competence:
Pharmaceuticals,
103 Harv. L. Rev. 773
lation of
de
Supreme
recently
The New
Court
(1990).)
Jersey
clined
market share
grounds
impose
on policy
DPT
on manufacturers of
effect
crippling
because
(Shackil
has had on the
potential
industry.
116 N.J.
Lederle Laboratories to one and the (DPT was diminished industry supplier Federal had established fund to deal with government It has also liability claims).) necessary govern been ment intervention to insure of the swine flu availability and polio vaccines.
We do not
that in
it is
to
believe
this case
necessary
become embroiled in the “insurance
crisis”
to specu-
late as
to
relative financial
security
partici-
in
pants
However,
the prescription drug industry.
we
note that market share
will
broaden man-
liability
surely
ufacturers’
because
will need to
liability exposure
they
insure
losses
from the
of others
against
arising
products
Fischer,
in the
as well as their
(See
own.
Prod-
industry
ucts
Market Share
Liability
Analysis
Liability,
—An
of
1623,
34 Vand. L. Rev.
of a mar-
(1981) (adoption
ket share
will
increase
dramatically
liability expo-
sure and it
of
discourage development
new
may
prod-
Comment,
ucts);
Market Share Liability for Defective
Products: An Ill-Advised
Remedy
Problem
of
300,
(1981) (in-
76 Nw. U.L. Rev.
321-23
Identification,
to dramatically
has
insurers
creasing liability
prompted
increase
are reluctant
to insure
they
par-
premiums
industries;
this
turn has resulted
ticularly risky
This added
will
higher prices).)
potential
likely contribute to diminishing
in the mar
participants
ket as well as research and
drugs.
of
availability
(See
Woodill v. Parke
Davis & Co.
26,
2d
(1980),
Ill.
(“This Court is
aware of the social
acutely
desirability
the research
encouraging
development
beneficial
drugs”); Zafft,
263
to hold hearings
ability
with its added
develop,
ture to
v. Johns-Manville
Goldman
policy.
and determine public
40, 51, 514 N.E.2d
33
St. 3d
Corp.
Sales
Ohio
& Co.
386
Lilly
v. Eli
(Iowa 1986),
701; Mulcahy
691,
A Plea
Liability:
Market Share
76; Note,
67,
N.W.2d
Alternatives, 1982 U.
Ill. L. Rev. 1003.
Legislative
law
principle
products
Another underlying
Prosser,
goods. (See
production
is to enhance safer
Citadel,
1099, 1119
Yale L.J.
Upon
The Assault
69
liabil
share
adoption
It is
(1960).)
argued
incentive to
safer
provide
produce
in this case will
ity
that utili
However, we are not convinced
drugs.
generic
manufac
against
in suits
zation of market share liability
effect, though
recog
DES
have such an
we
turers of
will
market share
nize some courts and commentators believe
of this safety goal.
necessary
promotion
Collins, 116
192-93,
at
(See, e.g.,
2d at
342 N.W.2d
Wis.
Sindell,
936,
Similarly, find unavailing the court’s con- appellate clusion that market will manu- encourage facturers to maintain more detailed records which will enable plaintiffs identify culpable party. (Robinson, Multiple Causation Tort Law: on the DES Reflections Cases, Va. L. Rev (1982) 734-35 reason (this scarcely dispositive whether to shift determining burden).) Due to the fungible nature of the after product, it leaves the control of the manufacturers have they very little ability keep track of in what market and by whom the drug will be used. Defendants ultimately point out that when the drugs leave their plant are they iden- tified, but it is along the chain of distribution goods become commingled and less traceable. For in- stance, in this case of part problem in identification may be attributed to the Field Clinic for its labeling as drug “Tab 98” to the only laws which require maintenance of records a short period time. We do not that this incen- safety believe supposed provided tives are sufficient to adopt theory.
Plaintiff also that the manufacturers are argues drug liable their breach to a foreseeable plaintiff. duty Under plaintiffs interpretation manufacturers duty, human products for have a consumption special responsi- bility and manufacturer of DES can be held liable any be- it cause breached a to her. The court duty owed appellate *35 accepted notion of in that plaintiffs duty, reasoning part drug manufacturers “owe a of duty care the special Ill. public.” (173 23.) 3d at In that a App. determining the existed duty appellate court also relied on v. Renslow Hospital 348, Mennonite 67 Ill. 2d in (1977), which this court held that a not child conceived at the time negligent acts a doctor and were hospital employees committed against its mother could sue that (67 Ill. negligence. 2d at However, in Kirk 358.) Hospital v. Michael Reese & 507, Medical 117 (1987), Center Ill. 2d recognized we that Renslow’s extension of was We duty limited. stated that the in duty Renslow arose “from a special relationship the between either defendant and the other or party the third-party and the other party.” (Emphasis Kirk, original.) 117 Ill. 2d (Renslow at 528 represents a “limited of area transferred negligence”).
The plaintiff and appellate court too in- broadly have the a terpreted duty drug to whom it company owes that duty. Both negligence strict re- proof that defendant quire breached a owed to a duty particular (See, e.g., Rowe v. Bank plaintiff. (1988), State 203, 215; 125 Ill. 2d Cunis v. Brennan (1974), 56 Ill. 2d 372, 374 (defendant is under an for the obligation benefit particular of a plaintiff).) Each manufacturer owes a to plaintiffs who will use its duty be drug injured by However, it. is not so as broad to extend to duty uses who anyone type drug manufactured aby Kirk, defendant 117 (see Ill. 2d 519-21 not does (duty of drug and unforeseeable non-users extend unknown is and the fact that a owed duty company’s products)), the plaintiff not abrogate requirement does maintains defendant identifying responsibility who breached duty. based concept liability may imposed causation being on a breach of without es
merely duty, tort tablished, has in American rejected been law. long v. Atlantic Co. (See Washington (1976), 66 Ill. Richfield Co. Long Island R.R. Palsgraf v. 108-09; 103, (1928), 2d in the (negligence 248 N.Y. N.E. it Though is has imposing liability).) air basis for manufacturers’ the DES creation suggested been (Robinson, Multiple to impose liability risk sufficient Cases, on the DES Causation Tort Law: Reflections Rev. under (1982) (damages imposed 68 Va. L. risks we equal created)), will duty held that creation of risk or of a alone have breach Educa (Board is not sufficient imposing liability. A, S, tion v. C & Inc. 428, 442-43; 131 Ill. 2d (1989), Youngquist Stallman 267, 277; Ill. 2d A Al Liability: Legislative Plea Market Share *36 Note, for ternatives, 1003, (adoption 1982 Ill. L. Rev. 1021 of U. assessing lead damages share to liability may on These wrongful conduct).) principles based the defendants are ignored should not be because merely the of drug industry. members of would also result in vio- concepts these
Abrogation are not insurers the that manufacturers lating principle v. Davis & In Woodill Parke Co. of their industry. in a strict 26, 79 Ill. 2d this court held that liabil- (1980), danger to of a the action based on a failure warn ity or must that defendant knew prove and allege this is tested on danger have should known the time of hold- at knowledge production. existing placed a limit must be logical was because ing “justified 267 on the of a manufacturer’s ***. To hold a scope manufacturer to of a of liable failure warn danger which it would to the know based on impossible state of make present knowledge human would the man- the ufacturer insurer a virtual of product, position in Suvada. rejected this court by Strict liabil- [Citation.] ity not 79 Ill. 2d equivalent liability.” absolute Industries, Coney v. Inc. (1983), 37; at J.L.G. see also 97 104, Ill. 2d 111 of strict not (“imposition liability was meant make the manufacturer an insurer”); absolute Suvada White Motor Co. 612, 32 Ill. 2d 623.
The market share these liability theory disregards precedents and turns manufacturers into insurers of their own products products made others in the Co., v. Eli & industry. (Mulcahy Lilly 76; at N.W.2d Kroll, Intra-Industry Joint The Era Abso Liability: lute Products Liability, 185, Ins. L.J. 194-97 As in (1980).) case, illustrated this majority plausi ble defendants have been cannot be be brought fore the court. present Those who are have the difficult burden of their establishing share of a market. The com panies prove cannot their share will be made pay portion damages, unattributed thus pay ing the damages which rightfully belong companies which are insolvent, not amenable to suit in the jurisdic tion or some other reason are not before court. Sindell its on justified ruling the belief that part over the run cases would company’s liability approxi harm (Sindell, mate the it caused. 26 Cal. 3d at P.2d at Rptr. However, Cal. at this is a 145.) purely illusory assumption, Hymowitz, recognized as at N.Y.2d 539 N.E.2d 541 N.Y.S.2d at Richardson, 950. writing Justice for the dissenters Sindell, argued that market en makes the tire “an insurer of all drug industry injuries attributable *37 to defective in- drugs uncertain unprovable origin, themselves a manifesting genera- those
eluding injuries defend- later, particular tion of whether regardless in the claimed causing ants had whatever any part 942-43, 26 Cal. 607 P.2d at (Sindell, 3d injury.” J., (Richardson, dissenting).) 67 Cal. at 150-51 We Rptr. is an un- with his conclusion that such solution agree what in achieve attempting reasonable over-reaction result. socially as a perceived satisfying a mar- contends not by recognizing our re- abdicating ket share will be liability theory we of Illinois law. in the common development sponsibility have in the hesitant new past develop We been however, to do tort in this instance we decline concepts; in the Fur- proposed theory. so because of the infirmities thermore, from great princi- this is too a deviation a tort found a vital function in the which we have to serve ple share lia- law, fact, when market especially causation is a application likely and its will bility concept flawed to a class of narrow defendants. the appel- we reverse judgments Accordingly, this to the cir- courts, late and circuit and remand cause con- cuit court for further proceedings of Cook County sistent with this opinion.
Reversed and remanded. CLARK, dissenting concurring part JUSTICE in part: court
I agree majority appellate with share lia- adopted theory should not have set Court Washington Supreme forth bility by v. Martin Abbott Laboratories 2d (1984), Wash. I of mar- However, 689 P.2d adopt 368. would appeals ket share established the court of Eli & Co. Lilly Hymowitz New York in 541 N.Y.S.2d because 487, 539 N.E.2d N.Y.2d Hymowitz theory provides a fair and I believe that
269 this the injustice presented by rational to way remedy of shortcomings case avoids the of theories previous and I from liability. market share therefore dissent the ma- of market share jority’s outright rejection liability. court the “a ago
This common law as long described of of system elementary general judicial rules and decla rations of principles, continually are expanding with the the progress adapting themselves to society, gradual trade, commerce, arts, changes of inventions and the and of the v. exigencies usages country.” (Kreitz Behrensmeyer 496, 502; 149 Ill. see also v. (1894), Torres 338, 347; Walsh 98 Ill. 2d ex (1983), People rel. Keenan v. 13 (1958), McGuane Ill. 2d 535 law (the common is “a of law whose system outstanding characteristic is its and adaptability capacity growth”).) for common law, course, not on does its it is change Instead, own. responsibility legislature and the to judiciary “in cooperate examining and changing the common law to conform with the ever-changing demands of the com v. Ribar 85 (Alvis Ill. 2d munity.” (1981), 23.) Where has, “the reason, whatever failed to legislature to act a in the common law that results remedy gap in injus tice, it is imperative duty repair court that and injustice law to be to the de responsive reform Alvis, mands society.” (Emphasis added.) 85 Ill. at 2d 23-24. court
This has exercised its frequently duty modify the common law to an that has remedy injustice resulted changes from in In society. v. White Motor Co. Suvada 612, 617, 32 Ill. 2d (1965), this court abol- example, ished the traditional law common that requirement not manufacturer could be held liable for to a injuries in person manufacturer, with the held privity such liability need not be based any upon negli- gence, instead can be but based strict upon tort 2d (Suvada, 621-22). Ill. In so doing, this court negligence the idea that abolition
rejected cases should be products liability of contract privity “ found stating ‘[h]aving left for the legislature, [the in contract and to be un negligence] doctrines of privity conditions, consider under we sound and unjust present have not but abolish power, duty we ” Suvada, 2d at quoting Ill. doctrines].’ [those No. Unit District Community Molitor Kaneland 25. Ill. 2d Alvis, 24-25, this court re- 85 Ill. 2d at Similarly, common law doctrine of contribu- the traditional placed negli- the doctrine of comparative with tory negligence *39 This court gence. explained: not be stability the need for law must allowed
“Clearly, of or to veil the in- changing society to obscure the needs from a doctrine in need of reevaluation. justice resulting *** of ignore plight plaintiffs to the We cannot continue who, are forced negligence part, of some on their because injuries. of their Neither can to bear the entire burden totally defendants to policy allowing we condone the of negli- own arising for from their escape liability injuries negligence another has gence pretext party’s on the that Alvis, 85 Ill. at 24-25. injuries.” contributed to such 2d that all of the alleged The in this case has plaintiff the defendants identical and DES manufactured was by defect, common and that plaintiff developed shared a The this defect in the DES. defend- cancer as a result of is that even if the above ants’ sole on argument appeal the cannot be held liable true, are defendants allegations can- strict the plaintiff for or because negligence this Thus, for the purposes not causation in fact. show manufac- they have admitted the defendants appeal, the and marketed a defective product, tured and result of the defective product. was as a injured plaintiff *** judicial rules and general the “elementary Under Ill. at which (Kreitz, 502) declarations principles” our not com- system, tort the will comprise because, through for her no fault of pensated damages own, her she cannot which of wrongdoing identify caused in- defendants manufactured the DES that her juries. The to man- plaintiff’s single inability identify ufacturer who caused her a combi- injuries upon based factors, nation of DES, including fungibility time it length of has taken plaintiff’s injuries ingested manifest themselves since the DES was her by mother, and the DES manufacturers’ record- inadequate keeping product labeling. Unfortunately, this combi- nation of factors this re- prevents plaintiff from for her covering damages under our current tort injuries it system, is also likely numerous other so- prevent called “DES from daughters” recovering damages their is, That injuries. unless this court acts to remedy in our common gap law such which allows injustices to occur. See Alvis, Ill. 2d 23-24. principle fact, causation like the principles
of contributory negligence,
of contract
privity
negli-
gence in
cases,
products
“is not
an end of the le-
gal
but rather the
system,
means
legal sys-
tem achieves
(Shackil v. Lederle
its purposes”
Laboratories
N.J.
561 A.2d
534 (O’Hern, J., dissenting)). Where such “means” prove
inadequate
meet
changing needs
society,
*40
where such
injustice,
“means” cause
our common law
tradition demands that
(See, e.g.,
be modified.
they
Alvis,
256-57.) liability, example, Torts, the Restatement (Second) provides: tortious, of two more actors is “Where conduct- to the plain- and it is that harm has been caused proved them, to uncertainty tiff one of but there is as by it, each upon which has caused the burden is such ac- one (Restate- he the harm.” tor to has not caused prove (1965).) (Second) §433B(3), of Torts at 441-42 ment the causation re- relaxing The policy justification is that it in alternative situations quirement who would to permit “proved wrongdoers, be unjust in- an upon entirely them have inflicted among injury nocent to because plaintiff, escape liability merely has made nature of their conduct and the harm resulting of them has it difficult or impossible prove (Second) of Torts (Restatement caused the harm.” of res §433B, at doctrines comment/, 446.) Although loquitur be ipsa liability may applica- alternative 257), 137 Ill. 2d at both (see ble to the facts this case traditional tort concepts doctrines illustrate the fact that modified occasionally as in fact must such causation society. meet the needs of our ever-changing have di six of our sister States courts of highest this the issue that before currently addressed rectly sought remedy court. Four of those courts have common law re from their arising gaps injustice fact some form of causation in with the element placing 73 N.Y.2d at (See Hymowitz, of market share liability. Sindell 947; N.Y.S.2d at 539 N.E.2d 588, 611-13, 607 Abbott Laboratories 26 Cal. 3d (1980), 132, 144; Martin v. Ab 924, 936-37, 163 Cal. Rptr. P.2d 581, 584, 2d bott Laboratories 102 Wash. (1984), Lilly v. Eli Co. 116 Wis. Collins 368, 381; P.2d courts, These while dis 37, 45.) 2d 342 N.W.2d share li of market variant as to what agreeing precisely “the ever- have recognized applied, should be ability
273
dictates
evolving
justice
fairness,
which are the
heart of our common-law
formation of a
system, require
(Hymowitz,
caused
DES.”
73
remedy
injuries
by
507,
1075,
947;
N.Y.2d at
Eli
&Lilly
Co.
v. Eli
(Iowa
67;
386
1986),
N.W.2d
Zafft
Lilly & Co. (Mo. 1984),
The most recent State
court to address the
high
issue
is the court of
appeals
New York. As the majority
notes, that court
each of the
considered
three
previous
judicially promulgated theories of market share liability,
and recognized those theories’ shortcomings, before de-
veloping its own
Hymowitz.
theory
(See
ket of DES sold for
use cannot
pregnancy
escape liabil
its DES
ity merely because
defendant
can show
*42
in fact
could
have been the DES that caused the
73 N.Y.2d at
plaintiff’s
injuries.
(Hymowitz,
However,
N.E.2d
541 N.Y.S.2d
at
950.)
defendant
can
if the defendant
can show
escape liability
that
it “was not a member of the national market of
DES marketed for
[by showing,
pregnancy
example,
that
DES in a form
for use during
sold
unsuitable
it]
***
or
that
not marketed for
pregnancy,
product
its
was
Hymowitz,
n.2,
use.”
The
con-
majority
rejects
fashion,
in a rather
that
cluding,
as the
cursory
“[j]ust
theories have not been
previous
subsequent
embraced by
courts,
it is
that
York’s
will
theory
New
receive
unlikely
broad
Ill. 2d at
The
acceptance.”
246.)
(137
majority’s
Hymowitz theory
of market
share liabil-
rejection
is
based
a number of
criti-
ity
apparently
upon
specific
cisms which have
made of the market
share theo-
been
ries
courts
in this
previously developed by
country,
other more
criticisms of the overall
upon
general
concept
of market share
See
One reason the
market
share
majority rejects
liability
is the
fear
“market
share
will
liability
majority’s
broaden manufacturers’
because
liability exposure
surely
to insure
losses
from the
against
arising
will need
they
others in the
as well as their own.”
products
industry
lia-
to the
added
According
majority,
potential
“[t]his
will
contribute
bility
likely
diminishing participants
availability
market
as well as research
drugs.”
ability market share theories First, *43 turers of DES: X, manufacturer who manufactured 50% of the market, DES and Z, manufacturers Y and who each manufactured 25% the DES market. Because each manufacturer’s DES was identical and shared a defect, common we could assume that the DES manufac- tured Xby would cause of the 50% cancers resulting DES, from and that both Y and Z would have manufac- tured the DES which caused 25% the cancers result- from ing DES. If identification of the DES manufacturer could be made in cases, all X would be sole defend- ant in 50% of the DES daughter cases and would lia- be ble for 100% of the in damages those cases. Y Similarly, Z and would each be liable for 100% of the in damages of the 25% DES daughter cases. If the average amount of damages awarded in X’s cases was equal to aver- age amount of damages cases, awarded in Y’s and Z’s then X would 50%, be Y Z paying and would each 25%, be paying damages from DES. arising Under hand, X, market share on the other Y liability, Z and would all be named defendants in 100% of the
DES cases and each manufacturer would be liable for its market share of the Thus, each case. damages X would 50%, be liable for Y Z and would each be for 25%, liable of the damages arising DES; from pre- what each cisely would be under tradi- expected pay tional tort DES and a Pro- Comment, See principles. posed Theory Enterprise Liability, Fordham L. Rev. 994 (1978).
The correlation between market share and li- liability under ability traditional tort principles may per- be fect. It is of course that the possible amount of average in X’s damages cases under traditional tort principles could be less than the average amount of damages Y’s and Z’s cases, which case X would incur more liability under market share than under traditional tort liability However, it is principles. that the aver- equally possible age amount of in X’s cases could exceed the damages av- amount of erage cases, in Y’s and damages Z’s in which X case would incur more under traditional tort liability event, In either principles. the correlation between the under potential traditional tort principles and under market share potential theories is close enough fears that market share allay any liabil- will ity increase manufacturers’ greatly liability expo- DES and a En- Comment, sure. See Proposed Theory of terprise Liability, 46 Fordham L. (1978). Rev.
A third in which in- way liability exposure may be creased under market share is that certain man- ufacturers “to first may exposed double liability, *44 who can them as plaintiffs identify the causal and party, who cannot.” Ill. 2d at again plaintiffs (137 citing Burden Overcoming in Comment, Identification DES The Market Share Litigation: Liability Theory, L. Rev. 632-33 Marq. (1982).) “Double liability” not mean to recover addi- does will be able plaintiffs for tional more than one action dam- damages, bring if Instead, market “dou- ages, share liability adopted. liability” ble refers to that manufacturers possibility who are liable DES under daughters to certain tradi- tional tort and who are liable to other also principles, DES under market share incur daughters liability, may more than their market share of in cases arising from example, DES. For let us assume that manufac- X turer from the in addition to hypothetical, above being held liable for in cases in 50% of all which damages made, identification not be also identified could was in a number of cases as the manufacturer of DES which was the cause in fact Because plaintiffs’ injuries. made, identification could in those be cases plaintiffs would seek under tort traditional recovery principles, rather than under If market share those liability. plain- prevailed suits, tiffs in X their would be liable for all the damages in those cases.
Let us further that the assume DES manufactured by Z Y and could not identified as cause in be fact of Y Z any plaintiff’s injuries. and would therefore be liable their market in shares cases in which identification made,
could not be but would incur no in those cases X in which involving identification could be made. scenario, Under such a X’s total DES cases share, would be greater than his market while Y Z would be for less liable than their market shares. X would effect caused Y paying damages Z.
I with agree that, if majority liabil were can ity adopted, manufacturers who be causally linked to DES caused case damages specific could incur a disproportionate amount How liability. ever, to ameliorate allocation of lia any disproportionate bility that could from occur so-called “double I liability,” *45 a manufacturer has held
would allow who been liable in fact” case a to recover right “cause contribution from other DES manufacturers. Each of the manufactur- ers would be liable in contribution for a of percentage the to the manufacturers’ indi- plaintiff’s damages equal vidual market shares. therefore com- Contribution would manufacturer for it in- pensate original any liability curred under traditional tort in excess of its principles share, and would force the other manufacturers the amount of had damages paid would have pay they identification not made. been
It is true that market share lia- certainly recognizing result in the manufacturers in this case bility may drug for the manufacture of defective incurring liability prod- that, ucts because the cannot causation in prove fact, the manufacturers would otherwise incur. How- ever, that, I do guise not believe under limiting “in “liability exposure” encouraging participation market as well as research and availability drugs” Ill. (137 261-62), 2d at manufacturers should wrongdoing be allowed to benefit from this situation. The unfortu- nate result of the is that “a manufac- majority’s logic turer must bear the same risks of the ma- from, seeks to insulate the jority industry except extent that the can issue a company product would for reason difficult from that distinguish be any other v. Lederle manufacturers.” Shackil Laboratories 155, 202, 511, 535 (O’Hern, J., 116 N.J. 561 A.2d dissenting).
A reason the market share li- majority rejects second is that market share “it is inevita- liability, under ability innocent of wrongdoing ble that some defendants wholly or all towards the will shoulder particular plaintiff part caused” Ill. 2d at (137 of the responsibility injury 258; see also 137 Ill. 2d at and that 247), concept “[t]he on a based breach imposed merely liability may has being established, long causation duty, without 2d at (137 266). been American law” Ill. rejected tort true, they assertions are Although majority’s simply do not address at issue here. question “whether, in a at issue in this case is question action, and strict cause of Illinois negligence should in fact a substitute the element causation of market share when identification *46 of the is injured manufacturer that not drug plaintiff Ill. 2d at The claim possible.” (137 that 226.) majority’s market share not mar- liability should be because adopted ket in share will result liability being imposed liability defendants who did cause upon actually plaintiff’s not injuries amounts an market essentially argument to that share should not element liability be substituted for the of causation in fact because, under market share liability, defendants may be held liable a of causa- without showing tion in fact. The argument begs thus The question. fact that in causation fact has been around time long to fails address the similarly question.
A third reason decision is that the majority’s majority is not convinced that adoption either liability will incentive for provide production safe drugs, encourage drug manufacturers to adopt procedures which would plaintiffs enable to cul- identify Ill. pable (137 264.) 2d at The parties. states majority that “it clear is not the drug needs this industry even amount of to encouragement safer produce further drugs, above and the incentives beyond lia- products bility laws negligence provide.” (Emphasis origi- nal.) Ill. 2d 263. that,
The majority may be correct where traditional products liability and laws can utilized to negligence impose manufacturers of liability upon drugs, defective additional to safe encouragement may produce drugs However, be needed. where can li- escape manufacturers for a to it is ability impossible prove because fact, traditional tort laws do not provide causation situations, to safe In such drugs. incentive any produce act encour- market share would not as a liability further Instead, market share li- drugs. to safe agement produce only encouragement produce would act as the ability Thus, that the safe market share insures drugs. incentive to safe tradi- products provided by produce tional tort will remain effective situations where laws is wrongdoer identification of a particular impossible. further states that “it is unlikely majority an incentive could result from imposition overall safety after the of market share undesirable years occurred and almost 20 after the years poten- behavior tial harm was discovered and removed from product Furthermore, (137 263-64.) the market.” Ill. 2d at be- cause market share “is only being applied *** similar products goal manufacturers DES or products manufacturers safer warning produce Ill. (137 will not reach a wide array producers.” likely reasoning 2d at This 264.) aspect majority’s somewhat disingenuous. *47 negative
When the
considers
majority
potential
effects of market share liability (i.e., stifling develop-
argues
ment and
new
marketing
drugs),
majority
in this case
of market share
will
liability
adoption
on the entire
have
dramatic
far-reaching,
consequences
If the majority believes the potentially negative effects of market share in this adopting liability case would felt be throughout pharmaceutical industry, then the should conclude that majority potentially effects of positive market share adopting in this liability case would be felt throughout the pharmaceutical indus- try. if the Conversely, believes that majority the positive aspects market share adopting would not liability be noticeable because they could affect the only DES mar- ket, a market which has been nonexistent for 20 years, then the majority should also conclude that the potential negative effects of market share would liability be only felt in the now nonexistent DES (and so there would be no need for the to fear majority that adoption of market share liability would stifle the development marketing new drugs).
Another
reason the
is not
majority
convinced that
adoption market share
will
liability
encourage
pro-
duction of safe
is
drugs
that “market share
im-
liability
poses potential
on all
manufacturers
in the par-
ticular
thus
industry;
there
may
be an incentive to
produce safer products if
could still
be imposed
as a result of the negligence of others in the industry
and if the manufacturer knows that others in the indus-
try will
the damages
absorb
resulting from its negli-
gence.”
This argument incorrect, as an initial matter, be- cause market share liability would not impose liability all upon manufacturers in a particular industry. Instead, market can only imposed upon those within,a manufacturers particular who industry manufac- ture an identical product, and if that product shares a common defect which caused a plaintiff’s injuries. Fur- thermore, it is incorrect to assume that market share lia- *48 would not an incentive to safe
bility provide produce products.
If a manufacturer took to insure that its steps prod- defective, uct was not then the manufactured product by the manufacturer would not identical to the be defective products manufactured those manufacturers by subject to market share For if liability. example, any defendants in this case had taken insure precautions defective, their DES was not those defendants would have altered their DES to correct defects be- fore marketing it. the DES to correct the By altering de- fects, those defendants would have manufactured a prod- uct which was not identical to the defective DES that was manufactured other defendants. The defend- ants who took DES, and modified their precautions therefore, could not be held liable under market share li- hand, On the other those ability. defendants who did not take safety but instead manufactured a de- precautions, fective would manufacturers product, only subject to market share It is therefore clear that market liability. does liability provide strong incentive manu- facturers to safe produce products. also that market share majority argues who can el-
“punishes plaintiffs
identification
satisfy
ement, while
an
locate
creating
incentive
the par-
ticular
However,
manufacturer.”
Ill. 2d at
(137
255.)
be-
cause
Hymowitz
under
market share
theory
is several
and is not
to reflect
inflated
manufactur-
ers that
court,
are not before the
and in
of the fact
light
that many DES manufacturers are now bankrupt, plain-
tiffs
the market share
are cer-
utilizing
tain to
Plain-
damages.
recover less than 100% of their
tiffs who are able to
the manufacturer of the
identify
hand,
DES that caused their
on the other
will
injuries,
be able to
of their
under tradi-
damages
recover 100%
*49
tional tort law:
would still have a
Consequently, plaintiffs
to
strong incentive
manufacturers.
identify specific
The final reason the majority refuses to
adopt
that,
is the
liability
majority’s belief
as a practical
matter,
it'will be
impossible
establish mar-
accurately
ket shares. The
notes that
courts
majority
which
“[t]he
adopted
have
market share
have done so while
ruling on
motions and
pretrial
have
had the benefit
of first having heard evidence on the
of mar-
availability
ket share data.” (137
However,
Ill. 2d at
I
252.)
note
that the
in this case is
majority
also
on a
ruling
pretrial
motion, and therefore the
is
majority
similarly acting
“without
the benefit of first having heard evidence on
of
availability market share data.”
only pieces
“evidence” which the majority
cites in support of its
that
belief
market share
are a
unworkable
statement made
a San
Francisco
trial court
judge
market share
can
“logically
be
practically
national,
on a
applied”
rather
than regional, scale (In re Complex DES Litigation (Cal.
Ct.
Super.
San Francisco
No.
County),
109), and a
830—
statement made by a Los Angeles trial
judge
“ex-
pressed exasperation with the task of
attempting
for-
mulate market shares” (see
Stapp
Abbott Laborato-
ries
(Cal.
Ct.
Super.
Los Angeles County), No. C
344407). (See
Litigation (Cal. Ct. San Francisco Super. County), No. 830-109.
I no have doubt that establishment of a national mar- ket difficult, would be a very costly, time-consuming I process. also to the agree legislative response problems DES a more effi- daughters might provide cient than (See 253.) 137 Ill. 2d at remedy litigation. Un- til acts, however, such time as the this court legislature has a to continue the common law duty developing with the demands of our I keep up changing society. therefore dissent. in this joins partial
JUSTICE CALVO concurrence dissent. partial *50 (No. 68358 . Friend, GATLIN,
BENJAMIN his Mother and Next Gatlin, RUDER, Marla BERNARD Appellant, et al. M.D., (Bernard Ruder, M.D., Appellee).
Opinion
May 23,
filed
1990.
Rehearing denied1, 1990.
October
notes
majority
inflate
variously
to account for
those man-
ufacturers
court,
are not before the
impose joint
rata ba-
and several
liability,
impose liability
pro
on a
sis,
cause
may
manufacturers to incur
in excess
of their market
(See
240-42,
shares.