Risks Reconsidered: Complex Issues in Establishing Factual Cause

While this result appears inexorable under traditional tort theory, the California Supreme Court in Sindell v. Abbott Laboratories, 607 P.2d 924 (1980), found it unacceptable. To avoid this outcome, the court fashioned the “market share” theory, which allows the plaintiff to sue a number of manufacturers and-assuming they are found at fault-hold each liable for part of the plaintiff’s damages. Under the Sindell approach, each manufacturer’s share of the liability is determined by the proportional share of DES it sold in the relevant market area.

Sindell does not solve the cause-in-fact problem….it redesigns it. Instead of asking who caused the particular plaintiff’s damages, it asks who contributed to the creation of a general risk of injury, and distributes the damages among those risk creators in proportion to the amount of risk each created. It is entirely clear under Sindell that defendants will be held liable to a plaintiff even though they did not cause her any harm. If Sindell sues six manufacturers who sold DES in the relevant market, but her mother only took one brand of DES, five of them will be held partially liable without having caused the injuries for which she sues.

On the other hand, if all DES daughters sued all manufacturers under the market share approach, the manufacturers would, theoretically, pay in proper proportion to the injuries they caused. A manufacturer who made 10 percent of the DES sold would be held liable for 10 percent of each plaintiff’s injuries. Since it actually caused all the injuries suffered by 10 percent of DES daughters, this should work out about right in the aggregate. Of course, all plaintiffs will not sue all defendants for their DES injuries, nor have all states (or even a majority) adopted the market share theory. Consequently, while in theory there is logic to the market share approach, its effect is rather haphazard in practice.

Market share liability looks more like a legislative solution to the causation problem than a judicial one: The court fashions a remedy that encompasses not only the party that actually caused the plaintiff’s harm but also other parties who contributed to the general risk that harmed her. While it serves several of tort law’s basic goals-compensation for the plaintiff and deterrence of negligent conduct-it arguably goes beyond the traditional role of courts in tort cases, by holding parties liable who caused no harm to the plaintiff before the court. But complex problems of modern life have forced courts to fashion such non traditional remedies in a variety of contexts. While it is easy to criticize the California court’s approach, the alternative-leaving plaintiffs without a remedy for negligent conduct, and defendants without an incentive to avoid it-isn’t very satisfying either. In lawsuits, unlike philosophy classes, courts have to decide. Refusal to refashion traditional doctrine in cases like Sindell usually means that the plaintiff loses.

Since Sindell, courts have created some interesting variations on the market share approach. Here are three.

• In Martin v. Abbott Labs., 689 P.2d 368 (Wash. 1984), the Washington Supreme Court held that a plaintiff may sue one DES manufacturer only. (Of course, she is free to sue more if she wishes.) If she proves that that manufacturer sold the drug in the relevant market area (that is, where her mother purchased the drug), and that DES caused her injuries, that defendant will be liable for the plaintiff’s injuries.However, the defendant may implead (that is, bring into the action) other DES makers. If it does, all makers before the court are presumed to have equal market shares. Thus, the plaintiff need not shoulder the difficult burden of establishing market shares. If the defendants offer no proof as to market share, they will each be held liable for a pro rata share of the plaintiff’s damages. (If, for example, five are joined, each would be severally liable for one-fifth of the plaintiff’s damages.) Any defendant that establishes that it had a smaller market share will pay according to that share. If this happens, the shares of the other defendants go up, so that plaintiff still recovers 100 percent of her damages.