Risks Reconsidered: Complex Issues in Establishing Factual Cause

In Abel v. Eli Lilly & Co., 343 N.W.2d 164 (Mich. 1984), the Michigan Supreme Court adopted an approach to DES liability modeled on Summers v. Tice. The court held that a plaintiff may recover by joining all defendants who might have sold the drug ingested by her mother. Any defendant may avoid liability by proving that it did not manufacture the DES that injured the plaintiff. Any maker who does not make such proof would be jointly and severally liable to the plaintiff for her entire damages.[2]

The New York Court of Appeals has taken the most radical approach to market share liability. In Hymowitz v. Eli Lilly & Co., 541 N.Y.S.2d 941 (1989), the court held that a plaintiff who proves that she was injured by her mother’s ingestion of DES recovers from any defendant who participated in the United States market for DES. Recovery is in proportion to national market share. If less than all makers are before the court-which will virtually always be so-the plaintiff will recover less than full damages, since each maker pays only in proportion to its market share.

What makes New York’s approach radical is that it uses national market share, and bars any maker from proving that it did not make the DES that injured the plaintiff. Suppose, for example, that Acme Drug Company proves that it never sold DES in New York, where the plaintiff’s mother bought the drug. Or suppose it proves that its DES pills were blue, and the plaintiff’s mother testifies that the pills she took were red. Under Hymowitz, Acme pays in proportion to its national market share, even though it conclusively establishes that it did not cause the plaintiff’s injury:

It is merely a windfall for a producer to escape liability solely because it manufactured a more identifiable pill, or sold only to certain drug stores. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here.

541 N.Y.S.2d at 950. This quotation from Hymowitz is enormously ironic. Common law courts for centuries have premised liability on causing the plaintiff’s harm. Yet the Hymowitz court fairly casually concludes that it is “merely a windfall” to allow the defendant to avoid liability by showing it did no harm to the plaintiff!

Market share liability is a controversial doctrine. Many courts have refused to adopt any variant on Sindell. Rhode Island, for example, rejected it in a one-page rescript opinion. “We are not willing to adopt the market-share doctrine which has been accepted in the State of California in Sindell v. Abbott Laboratories, Inc…. We are of the opinion that the establishment of liability requires the identification of the specific defendant responsible for the injury.” Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I. 1991). See also Mulcalhy v. Eli Lilly & Co., 386 N.W.2d 67, 75 (Iowa 1986) (“awarding damages to an admittedly innocent party by means of a court-constructed device that places liability on manufacturers who were not proved to have caused the injury involves social engineering more appropriately within the legislative domain”).

[2] [ft] The Abel approach may no longer apply, due to statutory abrogation of joint and several liability in Michigan. See Napier v. Osmose, Inc., 399 F. Supp. 2d 811 (W.D. Mich. 2005).

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