Judith Sindell alleged that her mother ingested DES during pregnancy to prevent miscarriage and that, years later, Sindell developed cancerous and precancerous conditions associated with prenatal DES exposure. DES was manufactured by many companies from an identical formula and commonly prescribed generically, making it impossible for Sindell to identify the specific manufacturer of the pills her mother took. She sued multiple DES manufacturers, alleging negligence, strict liability, breach of warranty, fraud, and concerted industry conduct. The trial court sustained defendants' demurrers because Sindell could not identify the actual producer of the drug that caused her injury.
May a plaintiff injured by a fungible drug, who cannot identify the specific manufacturer because many firms produced and marketed the identical product, recover against a substantial share of those manufacturers under a burden-shifting theory?
Traditional causation requires the plaintiff to identify the defendant whose product caused the injury, and alternative liability or concert-of-action theories generally do not apply unless all wrongdoers are joined or there is actual concerted misconduct. But where fungible manufacturers each created the same risk and product identification is impossible through no fault of the plaintiff, the burden may shift to defendants in proportion to their market participation. A defendant that proves it could not have made the injury-causing product escapes liability.
Yes. The California Supreme Court held that the complaint could proceed under a new market-share liability theory: once the plaintiff joins manufacturers representing a substantial share of the DES market, the burden shifts to each defendant to prove it did not make the product that injured the plaintiff. Absent such proof, each defendant is liable for the proportion of the judgment corresponding to its share of the relevant market.
The court rejected classic Summers v. Tice alternative liability because not all possible tortfeasors were before the court, and rejected concert-of-action and industry-wide liability as pleaded because parallel reliance on common testing and marketing was not enough to show true concert or delegated safety control. Still, rigid adherence to product identification would leave an innocent DES plaintiff remediless even though the injury resulted from the negligent marketing of an identical, fungible drug by multiple manufacturers. Because each defendant contributed to the risk of injury and the inability to identify the producer was caused by the nature of the DES market and the long latency of harm, fairness justified shifting the burden of causation. Market share was the court's proxy for probability of causation and a means to align liability roughly with each manufacturer's contribution to the overall risk.
Justice Richardson, joined by Chief Justice Bird and Justice Clark in part, argued the majority improperly abandoned traditional causation principles, created an unsound and arbitrary theory of liability, and imposed damages on defendants who may not have caused the plaintiff's injury.
Sindell is the leading case creating market-share liability, a major innovation in products-liability and toxic-tort causation where a fungible product and long latency make manufacturer identification impossible. It is especially important in DES litigation and influenced later cases grappling with collective causation, while also being limited and criticized. Closely related cases include Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948); Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941 (1989); and Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984).
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