Tortscausationmarket share liabilityDESproducts liabilityDEScausationidentification of manufacturer
Facts
Plaintiff alleged that defendants manufactured, marketed, and promoted DES for use in preventing miscarriage, despite knowing or having reason to know it was ineffective and dangerous to daughters exposed in utero. Her mother took DES during pregnancy, and plaintiff later developed a malignant tumor and adenosis allegedly caused by that exposure. Plaintiff could identify the type of drug, DES, but not which company made the specific pills her mother ingested. She sued multiple DES manufacturers, alleging negligence and other theories, including joint liability based on concerted conduct and the fungible nature of DES.
Issue
May a plaintiff injured by DES taken by her mother during pregnancy maintain an action against DES manufacturers when she cannot identify which manufacturer made the specific product ingested, and if so, on what theory of causation and liability?
Rule
Although traditional alternative liability, concert of action, and industry-wide liability do not apply as previously formulated, a plaintiff who joins manufacturers of a substantial share of the relevant DES market may invoke a modified Summers v. Tice burden shift. In that circumstance, each defendant may avoid liability by proving it could not have made the product that caused the injury, and otherwise is liable for the proportion of the judgment represented by its share of the market.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Sacramento, Dana Ortiz developed a reproductive cancer at age 24 allegedly caused by a synthetic hormone her mother took during pregnancy in 1999. The hormone was sold by dozens of manufacturers from the same chemical formula, doctors prescribed it generically, pharmacies substituted brands interchangeably, and Dana cannot identify the manufacturer despite diligent efforts. She sues eight manufacturers alleged to represent a substantial share of the relevant market.
Under the majority's approach, what is the strongest argument that Dana's action may proceed despite her inability to identify the precise manufacturer?
Explanation. The majority adhered to the general causation requirement but created a modified burden-shifting approach for a fungible product made from an identical formula when identification is impossible through no fault of the plaintiff. If the plaintiff joins defendants representing a substantial share of the relevant market, each defendant may exculpate itself by proving it could not have made the injury-causing product; otherwise liability is several and tied to market share, not automatic joint liability.