Zafft v. Eli Lilly & Co.

GUNN, Judge,

dissenting.

I dissent for the reason that I would apply the rule developed in Sindell v. Abbott Laboratories, 26 Cal.3d 588 , 607 P.2d 924 , 163 Cal.Rptr. 132 (1980), cert. denied, 449 U.S. 912 , 101 S.Ct. 285 , 66 L.Ed.2d 140 (1980). This is not to say that the majority opinion does not recite a completely realistic and appropriate approach to the issue confronting the Court. I only believe that the manufacturers are better equipped to handle the problem.

The propriety of shifting the burden of proof to defendants on the issue of causation-in-fact is amply demonstrated in Summers v. Tice, 33 Cal.2d 80 , 199 P.2d 1 (1948), referred to in the majority opinion. The conduct of the two hunters who tor-tiously exposed plaintiff to injury also made it impossible for plaintiff to identify the particular hunter whose conduct had injured him. Nor was it likely that either hunter could have proven that he did not cause the plaintiffs injury. Sindell, 607 P.2d at 929 , 163 Cal.Rptr. at 137 . Nevertheless, the burden to disprove causation was placed upon defendant hunters who, if the burden was not met, remained jointly and severally liable for the whole of plaintiffs damages.

In the present case, as in Sindell , plaintiffs allege that manufacturers of DES tor-tiously exposed the offspring of consumers to serious medical harm. Yet, the nature of the risk combined with the fungible form in which the drug was produced make it impossible to identify the particular manufacturer whose product caused a given injury. It is possible to prove, however, what quantities of the drug were produced and distributed by specific manufacturers in a specific time frame.

The Sindell court concluded that the basic approach taken in Summers v. Tice was *248 applicable to the DES milieu, although not without some alteration. Plaintiffs were permitted to shift the burden of proof only upon a showing tht the particular defendants joined in the action together accounted for a substantial portion of all the products which could have actually caused the injury. Defendants who could not prove that their product did not cause the damage would nevertheless be responsible only for that portion of plaintiff’s damages corresponding to the relative likelihood that plaintiff’s mother purchased their product as opposed to a product manufactured by any one of the other defendants. By adapting the Summers v. Tice approach to suit the particular context, the Sindell court produced a cogent'and fair setting in which DES litigation could proceed.

The majority opinion notes the danger that if less than all of the manufacturers whose products may have been purchased by a plaintiff’s mother are named as defendants, the responsible manufacturer may not be held liable and those who are named may pay more than their fair share. Nevertheless, the ability of manufacturers to interplead other manufacturers whose product accounted for a significant portion of the market reduces this risk, although certainly does not eliminate it. The “substantial share of the appropriate market” threshold in Sindell does no more than shift to defendants the hazard that certain manufacturers may be defunct or otherwise not amenable to suit.

Furthermore, it is not clear whether the Sindell court intended to apportion plaintiff’s damages based on a defendant’s share of the market relative to the other named defendants or a defendant’s share of the market relative to all other manufacturers of DES. See Robinson, G., Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. 713, 726 (1982). This latter approach would be more consistent with probability and more consistent with a theory of “apportionment of causation” as opposed to apportionment of fault. Id. Such a scaling of liability in accordance with probability would vitiate the danger of proceeding against less than all of the manufacturers who may have manufactured the product which caused the harm and would render the “substantial share” threshold unnecessary.

The majority expresses concern that the Sindell court did not define the “relevant market” concept. It would seem that there are actually two different concepts of “relevant market” applicable to this situation. The first is a component of the threshold requirement that the named defendants together account for a substantial share of the relevant market; i.e., a substantial likelihood that their products were actually purchased and consumed by the DES mother. Since this threshold need not be a stringent one to meet, this likelihood could be demonstrated by fairly general proof regarding defendants’ shares of the total amount of DES marketed. No great degree of specificity should be required of plaintiffs prior to discovery.

The second “relevant market” concept comes into being once plaintiff has survived a motion to dismiss. At that point the precise issue becomes the relative likelihood that the plaintiff’s mother actually purchased the product manufactured by the individual defendant. The relevant market is the area of her residence, her drugstore, her pharmacist. While proof of this issue may be fraught with difficulty, it is a difficulty which is more appropriately born by the manufacturers than by the plaintiffs — a legitimate concept in products liability. Katz v. Slade, 460 S.W.2d 608, 611-13 (Mo.1970); Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 364 (Mo.1969). In either sense of the term, the “relevant market” is defined by the DES mother herself, the only real distinction being the means of proof used to describe that market.

The Sindell approach, applied in the context of modern apportionment of fault and third-party practice, affords a high degree of correlation between the individual manufacturer’s share of the risk and its liability for damages. Quite apart from the evident policy concerns, this correlation (expressed *249 in terms of probability) provides the justification for the presumption embodied in the shifting burden of proof. See Detrich v. Mercantile Trust Co., 292 S.W.2d 300, 304 (Mo.1956) (presumption may be based on probability, policy or convenience); see also Kaye, D., The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation, 1982 Am.Bar.Res. Found.J. 487, 509.

For the reasons expressed, I would reverse the trial court’s judgment and remand for trial.