Sindell v. Abbott Laboratories

Brief Fact Summary.

A number of drug manufacturers made and marketed a dangerous drug called DES for the prevention of miscarriages. The plaintiff’s mother took DES while pregnant with the plaintiff, leading to pre-cancerous growths on the plaintiff. The plaintiff has no way of knowing which specific manufacturer made the batch of DES ingested by her mother.

Synopsis of Rule of Law.

Market share liability allows a plaintiff to recover by holding each defendant liable for their share of the market for the injurious product at the time of injury, if a substantial percentage of the market is joined as defendants in the action.

Facts.

Over the course of 30 years, from 1941 to 1971, the defendant drug manufacturers made and marked a drug called DES—a synthetic compound of the female hormone estrogen. The drug entered the public domain in 1938, so hundreds of manufacturers were making an identical drug. The drug was given to the plaintiff’s mother while pregnant for the purpose of preventing miscarriage. It had been authorized by this purpose by the FDA on an experimental basis with the requirement of a warning label to that effect. In 1971, the FDA ordered manufacturers to cease making and marketing DES for the purpose of preventing miscarriages, due to danger to unborn children. During the period in question, the defendants knew or should have known that DES was a carcinogen that caused pre-cancerous growths in the daughters of mothers who took it while pregnant, but they continued to market and advertise it as preventing miscarriages. It is unclear which specific manufacturer made the exact DES that the plaintiff’s mother ingested which in turn caused the plaintiff’s injury.

Issue.

Can the plaintiff hold a drug manufacturer liable even though there is no evidence that the specific manufacturer caused the injury?

Held.

Yes. Under the doctrine of market share liability, the plaintiff can hold each defendant liable for its share of the market of the injurious drug. The judgement in favor of the defendants is reversed.

Dissent.

Justice Richardson

Justice Richardson feels that the majority is choosing to dispense with the causation requirement that links the defendant’s conduct to the plaintiff’s injury. Here, the plaintiffs only joined five of the several hundred DES manufacturers that could have been responsible for the injury suffered. It is pure conjecture to say that any of the five named defendants caused the injury. The court provides no guidance as to what a “substantial percentage” of the market actually means, making the standard too open-ended to apply fairly and allowing plaintiffs to pick and choose who to go after.

Discussion.

The court looks to the Summers-Ybarra theory of alternative liability, as identification of the precise manufacturer of the DES taken by the plaintiff’s mother would be impossible. The court also recognizes that the manufacturers probably are not in any position of superior knowledge to identify whose batch of DES was ingested by the plaintiff, due to the amount of time passed and the nature of drug sale and distribution—rendering the Summers-Ybarra doctrine inapplicable in its current form. The court then determines that there was no valid concert of action that can be used as a basis for recovery. The court finally turns to the theory of market share liability, as all the brands of DES at the time were fungible. The court also notes that defendants, all corporate entities, are better able to bear the burden of loss than the plaintiff. Further, the defendants were in the best position originally to ensure that the products were safe and not defective in any way—consumers are virtually helpless to protect themselves from harmful drugs marketed as safe. The court chooses to modify the Summers-Ybarra doctrine and hold each defendant liable for its percentage share of the DES market at the time of the injury.