Multiple companies manufactured a drug that caused health issues many decades ago, but the plaintiff did not know which company they had taken.
DES was a supplement taken to prevent miscarriage, but was found to be unsafe and cause issues in children exposed to it. The plaintiffs brought suit, but were unable to show which brand of the DES supplement their mother’s had taken.
Can the defendant be found to be the cause of the plaintiff’s issues stemming from DES if the plaintiff cannot show the defendant manufactured the specific drugs taken by their mothers?
Yes, under the theory of marketshare liability where a definite determination of fact cannot be made, the judicial body may make it as best they can under the circumstances.
Justice Richardson, J. (joined by Clark and Manuel, JJ.)
The judges dissent in large part because they feel as though it is inappropriate to allow the plaintiffs to sue a generation later, and receive “substantial damages from multiple defendants without any proof that any defendant caused or even probably caused” the plaintiff’s injuries. They reject the adoption of the market share theory of liability because they fear it sets a new high water mark and will impermissibly expand when a company is liable.
The court found that there was a reasonable probability that the defendant had manufactured the DES taken by the plaintiff’s mothers. Under market share liability, once the plaintiffs joined the manufacturers the burden shifted to the defendants to show that they did not make the offending product. If they failed to do so, they could be held liable.