# Sutowski v. Eli Lilly & Co.

> Ohio Supreme Court · June 29, 1998 · 82 Ohio St. 3d 347

URL: https://www.frixlaw.com/law-library/cases/11151039

## Case

- **Court:** Ohio Supreme Court
- **Decided:** June 29, 1998
- **Citations:** 82 Ohio St. 3d 347; 1998 Ohio 388
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Cook, J.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11151039

## How later opinions describe it (automated extraction)

- 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

## Opinion text

[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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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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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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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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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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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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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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{¶ 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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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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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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January Term, 1998

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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SUPREME COURT OF OHIO

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-

22
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

24
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.
__________________

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11151039. Public record. Not legal advice.