Sutowski v. Eli Lilly & Co.

[This opinion has been published in Ohio Official Reports at 82 Ohio St.3d 347.]

SUTOWSKI v. ELI LILLY & COMPANY, ET AL.

[Cite as Sutowski v. Eli Lilly & Co., 1998-Ohio-388.]

Products liability—Civil actions—Market-share liability is not an available

theory of recovery in a products liability action.

In Ohio, market-share liability is not an available theory of recovery in a products

liability action.

(No. 97-1142—Submitted April 7, 1998—Decided June 29, 1998.)

ON ORDER CERTIFYING A QUESTION OF STATE LAW from the United States

District Court, Northern District of Ohio, Eastern Division, No. 1:97CV1283.

__________________

{¶ 1} This case comes before us as a certified question of state law from the

United States District Court for the Northern District of Ohio, Eastern Division. In

its certification order, the federal district court recounted the following:

“Petitioner June Sutowski filed the instant diversity action in federal district

court naming 18 companies as party-defendants (‘respondents’ for purposes of this

Order). Sutowski claims to have suffered damage to her reproductive system due

to her in utero exposure to diethylstilbestrol (DES). Sutowski asserts that each of

the named defendants is either a manufacturer, a distributor, or a parent or successor

corporation to a manufacturer or distributor, of DES. Her complaint includes

counts consisting of strict liability under products liability, negligence under

products liability, breach of warranty and market share liability.

“In response, defendant/respondent Eli Lilly and Company (‘Eli Lilly’)

filed a motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c).

Among other things, Eli Lilly argues that judgment must be entered against

Sutowski on her claim for relief under the market share theory of liability since

Ohio has not recognized market share. Eli Lilly relies upon the recent decision in

SUPREME COURT OF OHIO

Kurczi v. Eli Lilly & Co. [113 F.3d 1426 (6th Cir. 1997)], in which the Sixth Circuit

announced that if ‘directly presented with the issue, the Ohio Supreme Court would

not adopt a market-share theory of liability in DES cases.’ Id. at [1435].”

{¶ 2} Immediately preceding release of the Kurczi decision, this court

decided Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, 677 N.E.2d

795, holding that common-law causes of action survive enactment of the Ohio

Products Liability Act unless specifically abrogated by that statute’s language. The

Sixth Circuit did not consider Carrel when deciding Kurczi. The federal district

court, believing that our decision in Carrel eroded the Kurczi analysis, certified the

question presented.

__________________

Amer Cunningham Brennan Co., L.P.A., Jack Morrison, Jr. and E. Marie

Wheeler; and Gary L. Himmel, for petitioner.

James J. Dillon and Kenneth A. Cohen; Squire, Sanders & Dempsey L.L.P.,

Robin G. Weaver and Paula B. Christ, for respondent Eli Lilly & Co.

Jones, Day, Reavis & Pogue, Kim F. Bixenstine and Paul D. Koethe, for

respondents Abbott Laboratories and McNeilab, Inc.

A. Edward Grashof and Sheila AnnMarie Moeller; Roetzel & Andress and

James R. Vaughn, for respondent Dart Industries, Inc.

Nicola, Gudbranson & Cooper, Matthew T. Fitzsimmons and Thomas A.

Gattozzi, for respondent Merck & Co., Inc.

Frost & Jacobs, Frederick J. McGavran, Grant S. Cowan, Mina J. Jefferson

and Jack B. Harrison, for respondent Pharmacia & Upjohn Company.

Baker & Hostetler, LLP, and Mary M. Bittence; and Marc S. Klein, for

respondent E.R. Squibb & Sons, Inc.

Eric D. Statman; Brouse & McDowell and Sallie Conley-Lux, in support of

respondents for amicus curiae, Emons Industries, Inc.

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January Term, 1998

James M. Beck; and Hugh R. Young, Jr., in support of respondents for

amicus curiae, Product Liability Advisory Council, Inc.

Bricker & Eckler, LLP, Randolph C. Wiseman, Kurtis A. Tunnell, Sarah J.

DeBruin and Matthew J. Arnold, in support of respondents for amicus curiae, The

Ohio Alliance for Civil Justice.

Linda S. Woggon, in support of respondents for amicus curiae, Ohio

Chamber of Commerce.

__________________

COOK, J.

{¶ 3} Pursuant to S.Ct.Prac.R. XVIII, the United States District Court

certified the following question of law to this court:

“Whether market share exists in Ohio as a viable theory of liability in a DES

products liability action[?]”

{¶ 4} We respond in the negative: In Ohio, market-share liability is not an

available theory of recovery in a products liability action.

MARKET-SHARE LIABILITY

{¶ 5} DES is a form of synthetic estrogen that gained widespread use in the

early 1940s. Its uses include hormone replacement during menopause, and the

treatment of both senile and gonorrheal vaginitis. By the late 1940s, DES was also

being used for the treatment of certain complications of pregnancy. Researchers in

the early 1970s, however, discovered a high incidence of clear cell

adenocarcinoma, a rare form of cancer, in women exposed to DES in utero. As a

result, use of DES during pregnancy ceased. Other reproductive disorders such as

a predisposition to miscarry, the injury Sutowski claims, have also been attributed

to in utero DES exposure. See, generally, Comment, Samuelson, DES, RU-486

and Deja Vu (1993), 2 J. Pharmacy & L. 56; Note, Russell, The Causation

Requirement: Guardian of Fairness or Obstacle to Justice?—Making Sense of a

Decade of DES Litigation (1991), 25 Suffolk U.L.Rev. 1071. See, also, Grover v.

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Eli Lilly & Co. (1992), 63 Ohio St.3d 756, 591 N.E.2d 696 (Petitioner’s deformed

reproductive organs resulted in an inability to carry her son to full term.).

{¶ 6} Because DES was not patented, some two hundred to three hundred

different drug companies produced DES in the years it was widely prescribed for

use during pregnancy. Due to the long interval between DES use and manifestation

of its effects a generation later, the great number of possible manufacturer-

defendants, and the primarily generic form of the drug, many DES plaintiffs

experienced difficulty identifying the particular manufacturer of the drug taken by

their mothers years earlier. Note, 25 Suffolk U.L.Rev. at 1071-1072. Many

manufacturers were no longer in business, medical and pharmacy records were lost

or destroyed, and memories had dulled over time. Strickland & Katerndahl, An

Overview of the Development of Market Share Liability (1992), 446 Practising

Law Institute—Litigation 277, 281-282.

{¶ 7} In response to the DES plaintiff’s inability to establish causation, the

California Supreme Court fashioned the market-share theory of liability in its

benchmark decision, Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 163

Cal.Rptr. 132, 607 P.2d 924. In Sindell, the trial court dismissed a DES plaintiff’s

complaint because she was unable to identify the particular manufacturer of the

drug prescribed for her mother. The supreme court reversed, resolving in the

plaintiff’s favor the conflict between the traditional causation requirement of tort

law and the desire to insulate an innocent plaintiff from bearing the cost of injury.

{¶ 8} The California Supreme Court determined that the theory of

alternative liability was inapplicable in light of the plaintiff’s inability to join all

DES manufacturers in the action. Sindell, 26 Cal.3d at 598-603, 163 Cal.Rptr. at

136-139, 607 P.2d at 928-931. The court also rejected the theories of concert of

action and enterprise liability. Id. at 604-606, 609-610, 163 Cal.Rptr. at 140-141,

143, 607 P.2d at 932-933, 935. Rather than affirming dismissal of the action, the

Sindell majority adopted the novel theory of market-share liability proposed in a

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January Term, 1998

Fordham Law Review student comment. Id. at 611-613, 163 Cal.Rptr. at 144-146,

607 P.2d at 936-938, citing Comment, Sheiner, DES and a Proposed Theory of

Enterprise Liability (1978), 46 Fordham L.Rev. 963. The court cited the following

three policy considerations in favor of relieving the plaintiff of the burden of

proving causation: (1) the manufacturer should bear the cost of injury as between

it and an innocent plaintiff, (2) manufacturers are better able to bear the cost of

injury resulting from defective products, and (3) because manufacturers are in a

better position to discover and prevent product defects and to warn consumers of

harmful effects, imposing liability would further ensure product safety. Sindell, 26

Cal.3d at 610-611, 163 Cal.Rptr. at 144, 607 P.2d at 936.

{¶ 9} Recognizing that “there is a possibility that none of the five

defendants in this case produced the offending substance,” the California Supreme

Court nonetheless justified shifting the burden of proof of causation to the

defendant. Id. at 611, 163 Cal.Rptr. at 144-145, 607 P.2d at 936-937. To this end,

the market-share plaintiff need only (1) identify an injury caused by a fungible

product, and (2) join in the action a substantial share of the manufacturers of that

product. Id., 26 Cal.3d at 610-612, 163 Cal.Rptr. at 144-145, 607 P.2d at 936-937.

The burden then shifts to each defendant-manufacturer to prove that it did not make

the particular injurious product. Id. Market-share liability thus enables a plaintiff

who cannot identify a particular tortfeasor to sustain a tort cause of action despite

an inability to show proximate causation.

{¶ 10} Any manufacturer unable to prove it did not produce the product at

issue is held severally liable for the proportion of the plaintiff’s awarded damages

that reflects the manufacturer’s total share of the product market. Brown v. City &

Cty. of San Francisco Superior Court (1988), 44 Cal.3d 1049, 1072-1076, 245

Cal.Rptr. 412, 426-428, 751 P.2d 470, 485-487; Sindell, 26 Cal.3d at 611-612, 163

Cal.Rptr. at 145, 607 P.2d at 937. In support of this unique method of damage

allocation, the court reasoned that a defendant-manufacturer’s percentage share of

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the total market for a product is proportional to the likelihood that the defendant-

manufacturer produced the specific product that injured the plaintiff. Id. The only

causation a plaintiff need prove in order to recover under a market-share theory is

the causal connection between exposure to, or use of, the product at issue and the

injury sustained.

{¶ 11} This atypical theory of tort recovery has not gained wide acceptance

outside California. Of the courts that have examined market-share liability in the

DES context, most have not considered it a plausible theory of recovery. 1 Ohio

may now be numbered among those that have considered and rejected the market-

share theory in the DES context.

OHIO TORT LAW

{¶ 12} Ohio common law has long required a plaintiff to prove that a

particular defendant caused his or her injury through negligence.2 “ ‘The rule is

1. See Wood v. Eli Lilly & Co. (C.A.10, 1994), 38 F.3d 510 (applying Oklahoma law); Tidler v. Eli

Lilly & Co. (C.A.D.C.1988), 851 F.2d 418 (applying the law of both Maryland and the District of

Columbia); Mizell v. Eli Lilly & Co. (D.S.C.1981), 526 F.Supp. 589 (applying South Carolina law);

Gorman v. Abbott Laboratories (R.I.1991), 599 A.2d 1364; Smith v. Eli Lilly & Co. (1990), 137

Ill.2d 222, 148 Ill.Dec. 22, 560 N.E.2d 324; Mulcahy v. Eli Lilly & Co. (Iowa 1986), 386 N.W.2d

67; Zafft v. Eli Lilly & Co. (Mo.1984), 676 S.W.2d 241. See, also, Braune v. Abbott Laboratories

(E.D.N.Y.1995), 895 F.Supp. 530 (stating Georgia has not recognized market-share liability); Abel

v. Eli Lilly & Co. (1984), 418 Mich. 311, 343 N.W.2d 164 (In recognizing the applicability of

concert of action and alternative liability theories in DES cases, the court avoided adopting market-

share liability; instead, the court held that DES plaintiffs must bring into court all actors who may

have caused the injury, with those who are unable to exculpate themselves being held jointly and

severally liable.); Namm v. Charles E. Frosst & Co., Inc. (1981), 178 N.J.Super. 19, 34-35, 427

A.2d 1121, 1128-1129 (The court rejected alternative liability and enterprise liability as theories

that would “distort or abando[n] altogether” traditional concepts of tort law.).

2. See Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 28 OBR 429, 504

N.E.2d 44 (The general rule is that a medical malpractice plaintiff must prove causation to establish

that the injury was, more likely than not, caused by the defendant’s negligence.); Kuhn v. Banker

(1938), 133 Ohio St. 304, 10 O.O. 373, 13 N.E.2d 242 (A directed verdict is appropriate where

plaintiff failed to prove defendant’s negligent actions were the proximate cause of injury.); St. Marys

Gas Co. v. Brodbeck (1926), 114 Ohio St. 423, 151 N.E. 323 (Where res ipsa loquitur is

inapplicable, negligence will not be presumed from fact of injury—plaintiff must prove defendant’s

acts were the direct and proximate cause of injury.); Cleveland City Ry. Co. v. Osborn (1902), 66

Ohio St. 45, 63 N.E. 604 (Plaintiff must show injury was proximately caused by an act of culpable

negligence on the defendant’s part.).

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January Term, 1998

elementary, that the defendant in an action for negligence can be held to respond in

damages only for the immediate and proximate result of the negligent act

complained of, and in determining what is direct or proximate cause, the rule

requires that the injury sustained shall be the natural and probable consequence of

the negligence alleged; that is, such consequence as under the surrounding

circumstances of the particular case might, and should have been foreseen or

anticipated by the wrongdoer as likely to follow his negligent act.’ ” Foss-

Schneider Brewing Co. v. Ulland (1918), 97 Ohio St. 210, 218, 119 N.E. 454, 457,

quoting Miller v. Baltimore & Ohio Southwestern RR. Co. (1908), 78 Ohio St. 309,

325, 85 N.E. 499, 504. See, also, Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142-

143, 539 N.E.2d 614, 616-617 (Proximate cause requires that the defendant foresee

the injury; foreseeability depends upon the defendant’s knowledge.). The plaintiff

must establish a causal connection between the defendant’s actions and the

plaintiff’s injuries, which necessitates identification of the particular tortfeasor.

{¶ 13} Under the market-share theory, the plaintiff is discharged from

proving this important causal link. The defendant actually responsible for the

plaintiff’s injuries may not be before the court. Such a result collides with

traditional tort notions of liability by virtue of responsibility, and imposes a

judicially created form of industry-wide insurance upon those manufacturers

subject to market-share liability. In the end, “manufacturers are required to pay or

contribute to payment for injuries which their product may not have caused.”

Mulcahy v. Eli Lilly & Co. (Iowa 1986), 386 N.W.2d 67, 76. This is not the law in

Ohio: “Manufacturers are not insurers of their products.” State Farm Fire & Cas.

Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 8, 523 N.E.2d 489, 496.

{¶ 14} In Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR

511, 473 N.E.2d 1199, this court adopted the doctrine of alternative liability where

the plaintiff “allege[d] two negligent defendants and a single proximate cause.” Id.

at 398, 15 OBR at 512-513, 473 N.E.2d at 1201. John Minnich was injured in an

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SUPREME COURT OF OHIO

ethyl acetate explosion while at work. He alleged that the chemical was delivered

to his employer in a defective condition, and that both the Ashland Oil Co. and the

M.J. Daly Co. supplied all the ethyl acetate used by his employer. Minnich was

unable, however, to identify which of the two companies supplied the particular

ethyl acetate that exploded the morning of his injury.

{¶ 15} In applying alternative liability to the facts in Minnich, this court did

not relieve the plaintiff of the burden of identifying the tortfeasors. See id. at 397-

398, 15 OBR at 512, 473 N.E.2d at 1200-1201. Rather, Minnich had to show that

both companies were negligent and that his injuries were caused by the negligence

of one of the two. Id. Alternative liability relieved Minnich only from proving

which of the two identified tortfeasors caused his injuries. Id. See, also, Summers

v. Tice (1948), 33 Cal.2d 80, 199 P.2d 1.

{¶ 16} Three years after Minnich, this court decided Goldman v. Johns-

Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691, an asbestos-

litigation case wherein the court rejected both alternative and market-share liability.

In rejecting application of alternative liability in Goldman, the majority stated:

“The key point in alternative liability, then, is that the plaintiff must still

prove that all the defendants acted tortiously. * * *

“ * * * In this case, it is clear that Goldman has not been able to show that

any of the defendants acted tortiously, because she is unable to show that any of the

defendants remaining in this case supplied any asbestos products to the Sherlock

Bakery. Alternative liability does not do away entirely with the burden of showing

proximate causation; rather, this theory relaxes only the traditional requirement that

the plaintiff demonstrate that a specific defendant (or defendants) caused the injury.

But the relaxation is only warranted where plaintiff shows that all defendants acted

tortiously.” (Emphasis sic.) Id. at 45-46, 514 N.E.2d at 696.

{¶ 17} The Goldman majority also rejected application of the market-share

theory of liability. While in dicta the Goldman court presumed that DES litigation

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January Term, 1998

was better suited to application of market-share liability, it did not, as Sutowski

suggests, state that market-share liability is an available remedy in Ohio. Citing a

lack of fungibility, difficulty in defining the asbestos market, and the absence, due

to bankruptcy, of the largest asbestos supplier in the world, the court explained that

adoption of the market-share theory was a matter singularly suited for the

legislature. Goldman, 33 Ohio St.3d at 50-51, 514 N.E.2d at 700-701.

{¶ 18} “ ‘Plaintiffs request that we make a substantial departure from our

fundamental negligence requirement of proving causation, without previous

warning or guidelines. The imposition of liability upon a manufacturer for harm

that it may not have caused is the very legal legerdemain, at least by our long held

traditional standards, that we believe the courts should avoid unless prior warnings

remain unheeded. It is an act more closely identified as a function assigned to the

legislature under its power to enact laws.’ ” Id. at 52, 514 N.E.2d at 702, quoting

Mulcahy, 386 N.W.2d at 75-76.

{¶ 19} Codified in 1988, the Ohio Products Liability Act, R.C. 2307.71 et

seq., provided:

“Any recovery of compensatory damages based on a product liability claim

is subject to sections 2307.71 to 2307.79 of the Revised Code.” Former R.C.

2307.72(A), 142 Ohio Laws, Part I, 1676.3

{¶ 20} Former R.C. 2307.71 et seq. provided that manufacturers were

subject to liability under the Act only if the plaintiff established (1) that the product

was defective at the time it left the control of its manufacturer, and (2) that the

defective aspect of the product proximately caused the plaintiff’s injury. Former

R.C. 2307.73(A), 2307.74, 2307.75, 2307.76, and 2307.77. Although enacted after

3. The Products Liability Act contains recent amendments, effective January 27, 1997, that do not

substantively change former R.C. 2307.72(A).

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Sutowski filed her claim, the current version of R.C. 2307.73(A) is also instructive.

It provides:

“A manufacturer is subject to liability for compensatory damages based on

a product liability claim only if the claimant establishes, by a preponderance of the

evidence, all of the following:

“(1) * * * the product was defective * * * .

“(2) * * * a defective aspect of the product * * * was a proximate cause of

harm for which the claimant seeks to recover compensatory damages.

“(3) The manufacturer designed, formulated, produced, created, made,

constructed, assembled, or rebuilt the product.” (Emphasis added.)

{¶ 21} Moreover, the General Assembly specifically stated that its purpose

in enacting current R.C. 2307.791 was “to codify an essential requirement for the

use of the alternative liability theory in actions brought under Ohio law, as

enunciated by” this court in Minnich and Goldman. Section 5(Q), Am.Sub.H.B.

No. 350, 146 Ohio Laws, Part II, 4028. R.C. 2307.791 provides:

“A manufacturer shall not be held liable for damages based on a product

liability claim that asserts any of the following theories:

“(A) Industrywide or enterprise liability * * * .

“(B) Alternative liability, except when all possible tortfeasors are named

and subject to the jurisdiction of the court.”

{¶ 22} Statutory language that is plain and unambiguous, and conveys a

clear and definite meaning, needs no interpretation. State ex rel. Richard v. Bd. of

Trustees of Police & Firemen’s Disability Pension Fund (1994), 69 Ohio St.3d 409,

412, 632 N.E.2d 1292, 1295. In this instance, the 1988 version of the Products

Liability Act applicable to Sutowski’s claim unmistakably required identification

of a particular tortfeasor: the successful plaintiff had to establish that the harmful

product was defective when it left the manufacturer’s control. While not applied

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January Term, 1998

retroactively, the 1997 amendments to the Act serve to conclusively reinforce this

identification requirement.

{¶ 23} In Kurczi v. Eli Lilly & Co. (1997), 113 F.3d 1426, the Sixth Circuit

reviewed both Ohio decisional law and the Ohio Products Liability Act. The court

based its conclusion that “the Ohio Supreme Court would not adopt a market-share

theory of liability in DES cases,” id. at 1435, on the following: (1) Ohio common

law embraces the fundamental principle of tort law that a plaintiff must prove that

the negligence of a particular defendant caused injury, (2) the 1988 Ohio Products

Liability Act “embodies the general common law principle that a plaintiff has to

prove an injury proximately caused by a particular defendant,” id. at 1432, and (3)

presuming the General Assembly was aware of the Minnich and Goldman

decisions, alternative and market-share liability schemes are noticeably absent from

the 1988 Act. Kurczi, 113 F.3d at 1430-1434. This analysis by the Sixth Circuit is

unassailable, our decision in Carrel notwithstanding.

{¶ 24} The district court in Sutowski’s case perceived a possible conflict

between Kurczi and the majority decision in Carrel v. Allied Products Corp. (1997),

78 Ohio St.3d 284, 677 N.E.2d 795. In Kurczi, the Sixth Circuit stated that “the

Products Liability Act is clear: it does not by its express terms provide for market

share liability and it is by its express terms exclusive. Thus, the Ohio Supreme

Court would be precluded from adopting a new legal cause of action.” Kurczi, 113

F.3d at 1434. In contrast, the Carrel court held that “ ‘all common-law products

liability causes of action survive the enactment of R.C. 2307.71 et seq., the Ohio

Products Liability Act, unless specifically covered by the Act

* * * .’ ” (Emphasis sic.) Carrel, 78 Ohio St.3d at 289, 677 N.E.2d at 800, quoting

Byers v. Consol. Aluminum Corp. (1995), 73 Ohio St.3d 51, 52, 652 N.E.2d 643,

644 (Douglas, J., dissenting); and Curtis v. Square-D Co. (1995), 73 Ohio St.3d 79,

652 N.E.2d 664 (Douglas, J., dissenting).

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SUPREME COURT OF OHIO

{¶ 25} Although Carrel and Kurczi are at odds in their analysis of the scope

of the Ohio Products Liability Act, the Carrel decision does not undermine the

validity of the Sixth Circuit’s ultimate conclusion in Kurczi. The Ohio Products

Liability Act does not provide for market-share liability. Furthermore, based on

the foregoing analysis, the market-share theory is not a part of Ohio common law

that could be deemed, under Carrel, to survive the enactment of R.C. 2307.71 et

seq.

{¶ 26} Accordingly, we hold that in Ohio, market-share liability is not an

available theory of recovery in a products liability action.

CONCLUSION

{¶ 27} We recognize that the DES plaintiff who, without fault, is unable to

identify the manufacturer responsible for her injury engenders sympathy. It is,

however, the role of the court to interpret the law, not to legislate. Cablevision of

the Midwest, Inc. v. Gross (1994), 70 Ohio St.3d 541, 544, 639 N.E.2d 1154, 1156.

We believe the General Assembly should decide the policy question of whether

Sutowski’s claims, or others like hers, warrant substantially altering Ohio’s tort

law.

Judgment accordingly.

MOYER, C.J., QUILLIN and LUNDBERG STRATTON, JJ., concur.

DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., dissent.

DANIEL B. QUILLIN, J., of the Ninth Appellate District, sitting for RESNICK,

J.

__________________

DOUGLAS, J., dissenting.

{¶ 28} The majority, by today’s decision, rings the death knell for most of

the DES litigation in Ohio. Specifically, the majority, in the syllabus, writes the

following prescription for claimants who have been injured by DES and who,

through no fault of their own, have been unable to identify the particular

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January Term, 1998

manufacturer of the product that caused their injuries: “In Ohio, market-share

liability is not an available theory of recovery in a products liability action.” This

prescription by the majority is the functional equivalent of saying: “Take two

aspirin and do not call us in the morning.” I respectfully dissent!

{¶ 29} The majority’s holding in this case is not only contrary to general

notions of fairness and equity, but it is also predicated on numerous misstatements

and misapplications of law. A reading of today’s decision should reveal to any

interested person that the majority quite simply does not wish to recognize market-

share liability and, to that end, it has concocted a rationale to support its

predetermined conclusion that market-share liability is not a viable theory of

recovery in Ohio.

{¶ 30} The majority’s entire decision in this case is built upon the erroneous

premise that market-share liability relieves a plaintiff of the obligation to prove

proximate causation. For instance, in the section of the opinion entitled

“MARKET-SHARE LIABILITY,” the majority says that “[i]n response to the DES

plaintiff’s inability to establish causation, the California Supreme Court fashioned

the market-share theory of liability in its benchmark decision, Sindell v. Abbott

Laboratories (1980), 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.” The

majority further claims that the Sindell court “reliev[ed] the plaintiff of the burden

of proving causation.” The majority also asserts that “[m]arket-share liability thus

enables a plaintiff who cannot identify a particular tortfeasor to sustain a tort cause

of action despite an inability to show proximate causation.” (Emphasis added.)

The fallacy of this argument is demonstrated by a brief discussion of Goldman v.

Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691.

{¶ 31} Goldman involved questions concerning the alternative liability

theory and the market-share liability theory in the context of asbestos litigation. At

the outset of the Goldman decision, this court emphasized that “it is important to

understand that both alternative liability and market-share liability are exceptions

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to the general rule that a plaintiff has to prove an injury was caused by the

negligence of a particular defendant. * * * [B]oth theories merely relax the

requirement that the plaintiff identify which one of a group of negligent tortfeasors

caused the injury to the plaintiff. In the context of asbestos litigation, the plaintiff

has the burden of proving exposure to asbestos-containing products. A defendant

is not liable under either theory if the evidence fails to establish that [the victim]

was exposed to the type of product it produced.” (Emphasis added.) Id. at 42, 514

N.E.2d at 693.

{¶ 32} In Goldman, a majority of this court determined that the alternative

liability theory was not applicable to the facts of that case, holding that

“[a]lternative liability theory in an asbestos litigation case will be rejected where

the plaintiff is unable to prove that the injury was caused by the asbestos-containing

products of any of the defendants before the court.” Id. at paragraph two of the

syllabus. The Goldman court also held that “[m]arket-share liability is

inappropriate as a viable theory of recovery in an asbestos litigation case,

especially where it cannot be shown that all the products to which the injured party

was exposed are completely fungible.” (Emphasis added.) Id. at paragraph three

of the syllabus.

{¶ 33} As Goldman clearly illustrates, market-share liability does not

eliminate the need for proof of proximate causation. Rather, the theory of market-

share liability merely relaxes the requirement that the injured plaintiff identify

which one of a group of tortfeasors caused the plaintiff’s injuries. Id. at 42, 514

N.E.2d at 693. The plaintiff still must prove proximate causation, but need not

identify the specific party that was actually responsible for the plaintiff’s particular

injury. Today’s majority has gone to great lengths to distort that issue.

{¶ 34} Recognizing the fallacy of the argument that market-share liability

dispenses with the need for proof of proximate causation, the majority then resorts

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January Term, 1998

to a shell game with the issues, hoping that the resulting confusion will carry the

day.

{¶ 35} In the section of the opinion entitled “OHIO TORT LAW,” the

majority states that “Ohio common law has long required a plaintiff to prove that a

particular defendant caused his or her injury through negligence.” Although this

statement is undoubtedly true in a number of contexts, it is fundamentally untrue

when it comes to the alternative liability theory and, of course, the market-share

liability theory. Both of these theories were specifically developed to eliminate that

identification requirement. Although the majority specifically recognizes that fact

with respect to market-share liability, the majority ignores it with respect to

alternative liability. The majority states that “[u]nder the market-share theory, the

plaintiff is discharged from proving this important causal link,” i.e., identification

of the particular tortfeasor responsible for the injury. (Emphasis added.) The fact

is that the same thing is basically true under the alternative liability theory.

{¶ 36} The majority then attempts to further isolate the theory of market-

share liability by engaging in a blatantly distorted discussion of Minnich v. Ashland

Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, and the

alternative liability theory. The purpose of the majority’s discussion of Minnich

should be obvious—the majority seeks to leave the reader with the mistaken

impression that the alternative liability theory requires identification by the plaintiff

of the particular tortfeasor that caused the plaintiff’s harm, whereas market-share

theory does not. However, with respect to alternative liability, this court, in

Minnich, adopted 2 Restatement of the Law 2d, Torts (1965), Section 433B(3),

which states that “[w]here the conduct of two or more actors is tortious, and it is

proved that harm has been caused to the plaintiff by only one of them, but there is

uncertainty as to which one has caused it, the burden is upon each such actor to

prove that he has not caused the harm.” (Emphasis added.) Minnich, syllabus. We

followed Minnich in Goldman, 33 Ohio St.3d 40, 514 N.E.2d 691, paragraph one

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of the syllabus, wherein we held that “[u]nder the alternative liability theory,

plaintiff must prove (1) that two or more defendants committed tortious acts, and

(2) that plaintiff was injured as a proximate result of the wrongdoing of one of the

defendants.” Clearly, under the alternative liability theory, the plaintiff need not

demonstrate which of the tortfeasors caused the plaintiff’s harm. See, also, Huston

v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d 505. Thus, identification by

the plaintiff of the particular tortfeasor responsible for the injury is not necessary

under the alternative liability theory, as is also the case in the context of market-

share liability.

{¶ 37} Next, the majority addresses the Goldman decision. Prior to today,

Goldman was the only case in which this court discussed the market-share theory

of liability. Goldman involved, among other things, the question whether market-

share liability should be recognized in the context of an asbestos case.

{¶ 38} In discussing Goldman, the majority says that “[t]hree years after

Minnich, this court decided [Goldman], an asbestos litigation case wherein the court

rejected both alternative and market-share liability.” Thus, according to the

majority, Goldman rejected both alternative and market-share liability as viable

theories of recovery in Ohio. Nothing could be further from the truth. The

alternative liability theory is alive and well in Ohio and has been addressed and/or

applied in various contexts before and after Goldman was decided. See, e.g.,

Minnich, 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199; Huston, 52 Ohio St.3d

214, 556 N.E.2d 505; and Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d

679, 653 N.E.2d 1196. The truth is that Goldman rejected alternative liability on

the facts of that case, and refused to apply market-share liability in asbestos

litigation only. The Goldman court disapproved of market-share liability in

asbestos litigation not because of any disapproval of the market-share theory in

general, but because the court determined that asbestos was not a fungible product.

Goldman, 33 Ohio St.3d at 50-51, 514 N.E.2d at 700-701. In contrast, DES is a

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fungible product, as the court in Goldman recognized. Id. In this regard, Goldman

left for future consideration the question whether market-share liability is

applicable in other contexts. Id. at 51-52, 514 N.E.2d at 701-702. Moreover, the

Goldman court favorably discussed the development of, and the policy reasons

behind, judicially created market-share liability for DES litigation, stating:

“Market-share theory was developed by the California Supreme Court in

Sindell v. Abbott Laboratories, supra. In that case, the court was faced with a class-

action suit brought by the daughters of women who had taken the anti-miscarriage

drug, DES. This drug, ingested by pregnant women, had caused cancer in several

of their daughters.

“The Sindell court actually rejected all of the plaintiffs’ theories of

recovery, including the alternative liability theory of Summers [v. Tice (1948), 33

Cal.2d 80, 199 P.2d 1]. The court, however, recognized the almost insurmountable

problems of proof facing the DES plaintiffs, namely, the inability to identify which

company or companies produced the DES ingested by their mothers while the

plaintiffs were still in their mothers’ wombs. The court then fashioned a variation

of Summers alternative liability, on public policy grounds, to address the problem.

The court justified its rule in the following terms:

“ ‘In our contemporary complex industrialized society, advances in science

and technology create fungible goods which may harm consumers and which

cannot be traced to any specific producer. The response of the courts can be either

to adhere rigidly to prior doctrine, denying recovery to those injured by such

products, or to fashion remedies to meet these changing needs. * * *

“ ‘The most persuasive reason for finding plaintiff states a cause of action

is that advanced in Summers: as between an innocent plaintiff and negligent

defendants, the latter should bear the cost of the injury. Here, as in Summers,

plaintiff is not at fault in failing to provide evidence of causation, and although the

absence of such evidence is not attributable to the defendants either, their conduct

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in marketing a drug the effects of which are delayed for many years played a

significant role in creating the unavailability of proof.

“‘***

“ ‘Where, as here, all defendants produced a drug from an identical formula

and the manufacturer of the DES which caused plaintiff’s injuries cannot be

identified through no fault of plaintiff, a modification of the rule of Summers is

warranted. As we have seen, an undiluted Summers rationale is inappropriate to

shift the burden of proof of causation to defendants because if we measure the

chance that any particular manufacturer supplied the injury-causing product by the

number of producers of DES, there is a possibility that none of the five defendants

in this case produced the offending substance and that the responsible

manufacturer, not named in the action, will escape liability.

“ ‘But we approach the issue of causation from a different perspective: we

hold it to be reasonable in the present context to measure the likelihood that any of

the defendants supplied the product which allegedly injured plaintiff by the

percentage which the DES sold by each of them for the purpose of preventing

miscarriage bears to the entire production of the drug sold by all for the purpose.

Plaintiff asserts in her briefs that Eli Lilly and Company and five or six other

companies produce 90 percent of the DES marketed. If at trial this is established

to be the fact, then there is a corresponding likelihood that this comparative handful

of producers manufactured the DES which caused plaintiff’s injuries, and only a 10

percent likelihood that the offending producer would escape liability.

“ ‘If plaintiff joins in the action the manufacturers of a substantial share of

the DES which her mother might have taken, the injustice of shifting the burden of

proof to defendants to demonstrate that they could not have made the substance

which injured plaintiff is significantly diminished. While 75 to 80 percent of the

market is suggested * * *, we hold only that a substantial percentage is required.

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January Term, 1998

“ ‘The presence in the action of a substantial share of the appropriate market

also provides a ready means to apportion damages among the defendants. Each

defendant will be held liable for the proportion of the judgment represented by its

share of that market unless it demonstrates that it could not have made the product

which caused plaintiff’s injuries.’ (Emphasis added.) Sindell, supra, 26 Cal.3d at

610-612, 163 Cal.Rptr. at 144-145, 607 P.2d at 936-937.

“Notwithstanding the policy reasons cited by the Sindell court, it is clear

that the significant factual differences between the DES cases and asbestos

litigation make market-share liability inappropriate to this case. The foremost

difficulty is the concept of fungibility. Market-share liability is inappropriate as a

viable theory of recovery in an asbestos litigation case, especially where it cannot

be shown that all the products to which the injured party was exposed are

completely fungible. DES was a synthetic estrogen that was produced pursuant to

a single formula. Thus, while the drug was marketed by two hundred companies,

there was no difference in the drug or its health risks. In contrast, asbestos is not a

‘product,’ but rather a generic name for a family of minerals. * * *

“The courts that have considered the application of market-share liability to

asbestos litigation have uniformly rejected the theory based on the lack of

fungibility, as well as the difficulty in defining the market. For example, a federal

district court, sitting in California, refused to apply Sindell to an asbestos case, even

though market-share liability had been recognized in California by Sindell. * * *

“***

“While arguably the difficulties of applying market-share liability in this

case are not so acute because the ‘product field’ is narrowed to [asbestos] tape,

inherent difficulties remain.

“ * * * In the case of DES, however, there is no difference among the

products distributed by the various companies. Crucial to the Sindell court’s

reasoning was this fact: there was no difference between the risks associated with

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the drug as marketed by one company or another, and as all DES sold presented the

same risk of harm, there was no inherent unfairness in holding the companies

accountable based on their share of the DES market. This fundamental difference

between DES and asbestos — indeed, asbestos tape alone — is enough to undercut

the Sindell justification for market-share theory in this case.

“***

“While we are not unmindful of the great difficulties faced by victims of

asbestos exposure, the answer is not contained in a market-share theory that was

advanced to address a situation with fewer complexities than those surrounding

asbestos exposure [i.e., situations involving exposure to DES] and the litigation it

has spawned.

“We can perceive of no problem more in need of a legislative solution [i.e.,

the insurmountable problem of proof for victims of asbestos exposure]. * * *

“***

“In conclusion, * * * [e]ven if we were to recognize market-share liability

as a viable theory of recovery, this [asbestos case] is not the case in which to do so.

* * * ” (Emphasis sic.) Goldman, 33 Ohio St.3d at 49-52, 514 N.E.2d at 699-702.

{¶ 39} Today’s majority concludes its discussion of Goldman by quoting a

select passage from that case indicating that recognition of market-share liability is

a function best addressed by the General Assembly. In reality, the Goldman court

had indicated that legislative action was needed to address the particular problems

associated with market-share liability in asbestos litigation, as opposed to litigation

involving DES exposure. Apparently, today’s majority has selectively quoted from

Goldman to create the impression that the General Assembly is the only appropriate

body to recognize the market-share liability theory in DES litigation. The majority

then uses that misguided impression as a platform for launching into a tortured

analysis of Ohio’s Products Liability Act. It is here that the majority’s shell game

becomes most deceptive.

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January Term, 1998

{¶ 40} With respect to the 1988 version of Ohio’s Products Liability Act,

the majority says that “[f]ormer R.C. 2307.71 et seq. provided that manufacturers

were subject to liability under the Act only if the plaintiff established (1) that the

product was defective at the time it left the control of its manufacturer, and (2) that

the defective aspect of the product proximately caused the plaintiff’s injury.”

(Emphasis added.) In making that statement, the majority is apparently once again

asserting that there is no requirement under the market-share liability theory that

the plaintiff satisfy the burden of proving proximate causation. Similarly, the

majority finds that the current version of R.C. 2307.73(A) is “instructive” on that

issue, presumably because the statute indicates that a plaintiff in a product liability

action has to show not only that the product was defective and that the defective

aspect of the product was a proximate cause of the injury, but that the manufacturer

designed, formulated, produced, created, made, constructed, assembled, or rebuilt

the product. However, it should be obvious to anyone that for DES claimants to

recover against DES manufacturers under the market-share theory of liability, the

plaintiff would be required to demonstrate that DES was a defective product at the

time it left the control of DES manufacturers, and that DES proximately caused the

plaintiff’s injuries. Further, it bears repeating that market-share liability does not

eliminate the need for proof of proximate causation as the majority has suggested—

rather, it “merely relax[es] the requirement that the plaintiff identify which one of

the group of negligent tortfeasors caused the injury to the plaintiff.” Goldman at

42, 514 N.E.2d at 693. Even the majority begrudgingly recognizes this when it

admits, elsewhere in the decision, that “[t]he only causation a plaintiff need prove

in order to recover under a market-share theory is the causal connection between

exposure to, or use of, the product at issue [i.e., DES] and the injury sustained.”

{¶ 41} Moreover, the plaintiff in a DES case involving market-share

liability must aver that the defendants assembled in the litigation are, for instance,

DES manufacturers, as opposed to manufacturers of “Beanie Baby” toys, Barbie

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Dolls, or some other product or material that is unrelated to DES. The common-

law elements for market-share liability are as follows: (1) the product at issue must

be fungible, (2) the plaintiff is unable to identify the specific manufacturer, (3) there

must be joinder of manufacturers representing a substantial share of the market,

(4) the product is defective, and (5) the plaintiff was injured as a proximate result

of the defective aspect of the product. See, generally, Goldman, 33 Ohio St.3d 40,

514 N.E.2d 691, and Jackson v. Glidden Co. (1995), 98 Ohio App.3d 100, 647

N.E.2d 879. The plaintiff in DES litigation who demonstrates the existence of these

elements will have satisfied the burden of demonstrating that DES was defective at

the time it left the control of DES manufacturers. The fact is that the common-law

theory of market-share liability for DES litigation is entirely consistent with the

causation requirement of the Ohio Products Liability Act.

{¶ 42} The majority also directs our attention to R.C. 2307.791, and states:

“Moreover, the General Assembly specifically stated that its purpose in

enacting current R.C. 2307.791 was ‘to codify an essential requirement for the use

of the alternative liability theory in actions brought under Ohio law, as enunciated

by’ this court in Minnich and Goldman. Section 5(Q), Am.Sub.H.B. No. 350, 146

Ohio Laws, Part II, 4028. R.C. 2307.791 provides:

“ ‘A manufacturer shall not be held liable for damages based on a product

liability claim that asserts any of the following theories:

“ ‘(A) Industrywide or enterprise liability * * * .

“ ‘(B) Alternative liability, except when all possible tortfeasors are named

and subject to the jurisdiction of the court.’ ”

{¶ 43} I have absolutely no idea why the majority cites R.C. 2307.791 and

the statement of legislative intention accompanying the enactment of Am.Sub.H.B.

No. 350. The fact that R.C. 2307.791 indicates that a manufacturer cannot be held

liable on the alternative liability theory unless all possible tortfeasors are named

and subjected to the jurisdiction of the court has nothing to do with the market-

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January Term, 1998

share theory of liability. If the majority is somehow suggesting that market-share

liability equates to “alternative liability,” or that market-share liability is

“[i]ndustrywide or enterprise liability,” then the majority is just plain wrong. The

concept of market-share liability is different from the concept of alternative

liability, and the concept of industrywide or enterprise liability is different from the

concept of market-share liability and alternative liability. Market-share liability

comes into play, if at all, only where the theory of alternative liability is

inapplicable. Goldman, 33 Ohio St.3d at 48-49, 514 N.E.2d at 699 (recognizing

that while market-share liability involves an assessment of damages, it is,

fundamentally, a theory of assessing liability, and that the market-share liability

theory applies only where the alternative liability theory does not). Indeed, the

discussion of Sindell in today’s majority decision demonstrates that even the

majority is aware of the distinctions between industrywide or enterprise liability,

alternative liability, and market-share liability.

{¶ 44} Further, the fact that the General Assembly, in R.C. 2307.791,

mentions industrywide enterprise liability and alternative liability but says nothing

regarding market-share liability speaks volumes on the General Assembly’s true

intentions. If the General Assembly had wished to exclude market-share liability

as a theory of recovery for DES claimants in Ohio, it clearly would have included

market-share liability in the list of excluded theories of liability in R.C. 2307.791.

The fact that the General Assembly made no mention of market-share liability in

R.C. 2307.791 indicates that the General Assembly viewed market-share liability

as a matter for the courts to decide. Indeed, the history of Am.Sub.H.B. No. 350

confirms that the General Assembly did not wish to exclude market-share as a

viable theory of liability in Ohio. As introduced in the 121st General Assembly,

House Bill No. 350 contained provisions to exclude evidence of any of the

following theories of liability in a claim against a manufacturer for product liability:

(1) industrywide enterprise liability, and (2) market-share liability, when a

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nonfungible product is involved. Proposed R.C. 2307.73(C) in H.B. No. 350 as

introduced. In the course of the legislative process, the reference to market-share

liability was removed. Am.Sub.H.B. No. 350, as subsequently enacted, made no

mention of market-share liability. Under these circumstances, it is far more likely

than not that the General Assembly, which was unquestionably aware of the

market-share theory of liability, had absolutely no intention whatsoever when it

enacted Am.Sub.H.B. No. 350 to preclude market-share liability as a viable theory

of recovery in Ohio.

{¶ 45} Nevertheless, the majority concludes its discussion of the Ohio

Products Liability Act by determining, out of thin air, that the language of the Act

reveals an unmistakable legislative intention to have excluded market-share

liability as a viable theory of recovery in a products liability case. Remarkably, the

majority says:

“Statutory language that is plain and unambiguous, and conveys a clear and

definite meaning, needs no interpretation. * * * In this instance, the 1988 version

of the Products Liability Act applicable to Sutowski’s claim unmistakably required

identification of a particular tortfeasor: the successful plaintiff had to establish that

the harmful product was defective when it left the manufacturer’s control. While

not applied retroactively, the 1997 amendments to the Act serve to conclusively

reinforce this identification requirement.” (Emphasis added.)

{¶ 46} Most assuredly, the majority has not applied the “plain and

unambiguous” language of any statute, and the majority has certainly not

considered the history of the Act. The 1988 version of the Product Liability Act

says nothing whatsoever about market-share liability, and the 1997 amendments to

the Act serve to “conclusively reinforce” nothing that the majority says. What the

majority has done in this case is to interpret (or, more appropriately, misinterpret)

the Act. The majority admits as much when it states, in the section of the decision

entitled “CONCLUSION,” that “[i]t is, however, the role of the court to interpret

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January Term, 1998

the law, not to legislate.” (Emphasis added.) Is this a deathbed confession by the

majority that it has interpreted the Products Liability Act as opposed to applying

the “plain and unambiguous” language of the Act, or is this just one more example

of the multitude of errors and inconsistencies contained within the majority’s

decision?

{¶ 47} The majority also relies heavily on the Sixth Circuit’s decision in

Kurczi v. Eli Lilly & Co. (1997), 113 F.3d 1426, while ignoring the teachings of

Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, 677 N.E.2d 795. In

Kurczi, the Sixth Circuit predicted that this court would reject the market-share

liability theory. The court in Kurczi reasoned that by omitting any reference to

market-share liability in the 1988 Products Liability Act, the General Assembly

rejected market-share liability by implication. The court stated that “the Products

Liability Act is clear: it does not by its express terms provide for market share

liability and it is by its express terms exclusive. Thus, the Ohio Supreme Court

would be precluded from adopting a new legal cause of action.” Id. at 1434.

However, Kurczi did not address this court’s decision in Carrel, which was decided

shortly before the Sixth Circuit issued its decision in Kurczi.

{¶ 48} Today’s majority, in its statement of the case, says that “[t]he Sixth

Circuit did not consider Carrel when deciding Kurczi.” This is undoubtedly true,

since Carrel compels a different conclusion from the one reached by Kurczi and by

today’s majority. In Carrel, we recognized that “ ‘all common-law products

liability causes of action survive the enactment of R.C. 2307.71 et seq., the Ohio

Products Liability Act, unless specifically covered by the Act * * *.’ ” (Emphasis

sic.) Id., 78 Ohio St.3d at 289, 677 N.E.2d at 800, quoting Byers v. Consol.

Aluminum Corp. (1995), 73 Ohio St.3d 51, 52, 652 N.E.2d 643, 644 (Douglas, J.,

dissenting); and Curtis v. Square-D Co. (1995), 73 Ohio St.3d 79, 652 N.E.2d 664

(Douglas, J., dissenting). Despite this holding, the majority now says that

“[a]lthough Carrel and Kurczi are at odds in their analysis of the scope of the Ohio

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Products Liability Act, the Carrel decision does not undermine the validity of the

Sixth Circuit’s ultimate conclusion in Kurczi. The Ohio Products Liability Act does

not provide for market-share liability.” (Emphasis added.) What the majority is

missing is that neither the 1988 Products Liability Act nor the 1997 amendments to

the Act address market-share liability. Thus, under Carrel, the common-law

market-share liability theory must survive!

{¶ 49} The majority then goes on to say that “the market-share theory is not

a part of Ohio common law that could be deemed, under Carrel, to survive the

enactment of R.C. 2307.71 et seq.” The majority reaches this conclusion based on

the majority’s own analysis of Ohio law. However, I do not buy any of the

majority’s “analysis” in this case. I also take particular exception to the majority’s

statement that the “analysis by the Sixth Circuit [in Kurczi] is unassailable, our

decision in Carrel notwithstanding.” What the majority appears to be saying is that

Carrel should be ignored.

{¶ 50} In the section of the majority’s decision entitled “CONCLUSION,”

the majority states: “We recognize that the DES plaintiff who, without fault, is

unable to identify the manufacturer responsible for her injury engenders sympathy.

It is, however, the role of the court to interpret the law, not to legislate. * * * We

believe that the General Assembly should decide the policy question of whether

Sutowski’s claims, or others like hers, warrant substantially altering Ohio’s tort

law.” I have several observations concerning this section of the majority’s decision.

{¶ 51} I am certain that the majority’s expressions of sympathy for the

victims of DES will be greeted with skepticism. These expressions of condolences

will ring hollow indeed, particularly when the victims of DES read the flummery

set forth in the majority decision. In the past, this court, when necessary and

appropriate, has never hesitated to acknowledge or create fair and realistic remedies

for injured victims under principles of the common law. See, e.g., Gallimore v.

Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052, and

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January Term, 1998

Minnich, 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199. The market-share

theory of liability should be formally recognized and adopted by this court in the

context of this case, and no one understands this better than the victims of DES.

{¶ 52} I also find it humorous to see the majority state in its conclusion that

the General Assembly should decide the question whether Sutowski’s claim

warrants “altering” Ohio’s tort law. Is the majority conceding that the General

Assembly has, to date, never decided against market-share liability? This would

be a peculiar (yet warranted) concession by the majority, since the majority has

implied elsewhere in its decision that the General Assembly has already rejected

the theory of market-share liability.

{¶ 53} Finally, it should be noted that the members of today’s majority that

have been elected to this court (Chief Justice Moyer and Associate Justices Cook

and Stratton) say that it is the function of the General Assembly to decide the policy

question of whether Ohio’s tort law should be altered to allow Sutowski’s claim.

This is a strange claim given that we have decided other public policy questions

that substantially alter Ohio tort and/or contract law, the most recent example being

the case of Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 696

N.E.2d 201 (also decided this day). It would seem that one cannot have it both

ways!

{¶ 54} Accordingly, I would answer the certified question by recognizing

the viability of market-share liability in DES cases. Because the majority does not

do so, I respectfully dissent.

F.E. SWEENEY and PFEIFER, concur in the foregoing dissenting opinion.

__________________

PFEIFER, J., dissenting.

{¶ 55} The right-to-remedy clause of the Ohio Constitution mandates that

“every person, for an injury done him in his * * * person, * * * shall have remedy

by due course of law.” Section 16, Article I, Ohio Constitution. In Burgess v. Eli

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Lilly & Co. (1993), 66 Ohio St.3d 59, 62, 609 N.E.2d 140, 142, this court stated,

“This court has previously identified a practical and essential element of the

Constitution’s right-to-remedy clause: ‘ “When the Constitution speaks of remedy

and injury to person, property or reputation, it requires an opportunity granted at a

meaningful time and in a meaningful manner.” ’ (Emphasis added.)” Quoting

Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 47, 512 N.E.2d 626, 628. The

majority appears determined to ensure that the plaintiffs do not receive their

constitutional right to a remedy.

{¶ 56} I embrace the market-share liability theory outlined in Goldman v.

Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691. It would

allow a remedy in a meaningful manner, assuming its elements can be established,

without trammeling the rights of defendants. DES manufacturers can avoid liability

by establishing that they did not distribute DES in Ohio.

{¶ 57} It is difficult to imagine a case better suited to market-share liability.

DES was fungible, virtually impossible to differentiate, and most important, it was

all bad. Nevertheless, the majority today essentially tells the injured women: We

know you have been injured and we know that certain companies manufactured

and distributed a defective drug to you or your mother, but because you do not

know which specific company is responsible for the DES specific to you, we will

hold none of the offending drug manufacturers accountable for the devastating

harm they caused. Such a result does not comport with the constitutional mandate

to provide a right to a remedy in a meaningful manner.

{¶ 58} It is unconscionable that any profoundly injured woman of the

estimated four hundred thirty thousand Ohio women who took DES should be

prohibited from successfully pursuing constitutionally protected compensation for

injuries done simply because she can only trace the harm to a group of

manufacturers of the same product. The fungibility of DES makes it virtually

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January Term, 1998

impossible to pinpoint a specific defendant. Applying market-share liability is the

only avenue for DES-injured women to successfully pursue a meaningful remedy.

{¶ 59} With their answer to the certified question, the majority is more

comfortable shielding the defendant drug companies than with applying a theory of

recovery that would allow the plaintiffs to go forward with their case. The

majority’s decision has the perverse effect of protecting a defendant class that

undeniably manufactured, released, and profited from a horribly defective product

while denying a chance of recovery to a class of injured women that undeniably did

nothing wrong, except suffer the consequences of the ingestion of the defendants’

defective drugs. The right-to-remedy clause has been turned on its head and the

majority has effectively given these defendants the equivalent of a common-law

right-to-immunity. DES-injured women will have to content themselves with

knowing that they “engender sympathy.” I dissent.

__________________

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