Conley v. Boyle Drug Co.

Supreme Court of Florida · 1990 · Torts

TortsProducts liabilityDES litigationMarket share liabilityPersonal jurisdictionDESdiethylstilbestrolmarket share alternate liability

Facts

Terri Lynn Conley alleged that her mother ingested DES while pregnant with her between June 1955 and March 1956 in Broward County, Florida, and that Conley later developed cervical adenosis and other precancerous and cancerous tumors linked to that exposure. She sued multiple companies that manufactured and marketed DES, alleging negligence, strict liability, breach of warranty, and fraud, but alleged that through no fault of her own she could not identify the specific manufacturer of the DES her mother took. Conley alleged the named defendants made a substantial share of the drug that caused her injury and knew or should have known of the danger to unborn children but failed to warn. Two defendants, Boyle and Ortho, separately challenged personal jurisdiction, asserting they were not doing business in Florida under the governing long-arm statute.

Issue

Whether Florida recognizes a cause of action against a defendant for negligently manufacturing and marketing DES of the type that caused a plaintiff's injury when, after a reasonable effort, the plaintiff cannot identify the particular manufacturer responsible. The court also addressed whether Florida courts had personal jurisdiction over Boyle and Ortho under the applicable long-arm statute.

Rule

Florida adopts the market-share alternate theory of liability for DES cases sounding in negligence only. A plaintiff who, after making a genuine and reasonable attempt to identify the responsible manufacturer, cannot do so may sue one or more defendants by proving that her mother ingested DES during the pregnancy resulting in her birth, that DES caused her injuries, that the defendant produced or marketed the type of DES taken, and that the defendant acted negligently; defendants may exculpate themselves by proving they did not produce or market the type of DES, did not market it in the relevant geographic area, or did not distribute it during the relevant time, and liability is several according to actual or adjusted market share. Florida long-arm statutes may not be applied retroactively, and jurisdiction over nonresidents must satisfy the statute in effect when the alleged negligent manufacture and distribution occurred.

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In Tampa, Lena Ortiz sued six pharmaceutical manufacturers, alleging that her mother took DES while pregnant with her in 1960 and that Lena later developed a reproductive tract condition linked to prenatal DES exposure. Before filing, Lena reviewed only her own medical records and never sought her mother's pharmacy files, prescribing physician records, or family papers, even though those sources were still available.

Under the governing Florida rule, may Lena proceed on a market-share theory against the manufacturers?

Explanation. Florida adopted market-share alternate liability for DES negligence cases only as a theory of last resort. A plaintiff must first show a genuine, diligent, and reasonable attempt to locate and identify the manufacturer responsible for her injury. Because Lena ignored available sources that might identify the manufacturer, she has not satisfied that prerequisite. (Derived from Conley v. Boyle Drug Co. (n.d.).)