Sindell (Plaintiff) developed cancer from a drug her mother took during pregnancy that had been manufactured by Abbott Laboratories (Defendant) and 10 others.
When a plaintiff cannot determine the business that is the source of their injury, each business who manufactured the injurious item during the time in question may be held liable for a percentage of the damages equal to their share of the market.
Sindell’s (Plaintiff) mother took DES, a drug that was marketed as a miscarriage preventative. The drug was manufactured by a number of companies during the period Plaintiff’s mother took it, including by Abbott Laboratories (Defendant) and the other named defendants. In 1971, the FDA told Defendants to stop selling DES because it caused cancer in unborn daughters of the mothers who took it. Plaintiff developed cancer as a result of her mother taking DES. Plaintiff has no way of knowing which of the manufacturers supplied the DES her mother took.
Where Plaintiff cannot prove which Defendant supplied the cancer-causing drugs, can all Defendants be held liable?
Yes, the Court held that each defendant can be held liable for the percentage of damages equal to the percentage of the market share of DES they produced.
Justice J. Richardson
The dissent disagrees with the majority’s theory of liability because it likely provides more to plaintiffs in similar cases than to plaintiffs in cases where the defendant is known. It also criticizes the “deep pocket” theory of liability which justifies finding these defendants liable because they likely have the resources to handle it.
The Court declined to completely apply the rule developed in Summers v. Tice to this case because it is possible that none of the defendants manufactured the exact pills taken by Plaintiff’s mother. Instead, the court developed this in between approach of market share to ensure that Plaintiff is able to recover where Plaintiff’s lack of knowledge, through no fault of her own, would otherwise make it impossible. Defendants can still escape liability by proving that they did not manufacture the product that injured Plaintiff.