Market Share Liability: Holding Pharmaceutical Companies Accountable When the Source of Harm is Unknown
Imagine developing a serious illness, only to discover it was caused by a drug your mother took decades ago while pregnant. But what if you can’t identify the specific company that manufactured the drug? This was the dilemma faced by Judith Sindell and other women who developed health problems due to their mothers’ use of diethylstilbestrol (DES), a drug prescribed to prevent miscarriages. The landmark case of Sindell v. Abbott Laboratories (1980) arose from this situation and led to the establishment of market share liability, a legal doctrine that has significantly impacted product liability law, particularly in pharmaceutical litigation.
The Genesis of Market Share Liability: The DES Story
Between 1938 and 1971, an estimated four million women in the United States took DES. In 1971, it was discovered that DES could cause a rare form of vaginal cancer in their daughters, known as clear cell adenocarcinoma (CCA). Years after their mothers ingested DES, these daughters began to develop health issues, including various cancers and other abnormalities. The problem? Many could not identify which of the numerous drug companies manufactured the specific DES their mothers had taken.
This inability to identify the specific manufacturer posed a significant legal hurdle. Traditional tort law requires plaintiffs to prove that a specific defendant caused their injury. However, the California Supreme Court recognized the injustice of denying recovery to DES victims simply because they couldn’t pinpoint the exact manufacturer. This led to the creation of market share liability.
Sindell v. Abbott Laboratories (1980): A Legal Turning Point
In Sindell v. Abbott Laboratories, the California Supreme Court introduced the doctrine of market share liability. The court reasoned that when a plaintiff cannot identify the specific manufacturer of a harmful drug, each manufacturer could be held liable for a percentage of the plaintiff’s damages based on its share of the market for that drug at the time the plaintiff’s mother ingested it.
The court outlined specific requirements for applying market share liability:
- Fungible Product: The product must be fungible, meaning it is interchangeable and of the same composition. In the case of DES, the drug was manufactured based on a similar formula by multiple companies.
- Substantial Share of the Market: The defendants named in the lawsuit must represent a substantial share of the market for the product. This ensures that the majority of potential tortfeasors are present in court.
- Inability to Identify the Specific Manufacturer: The plaintiff must be unable to identify the specific manufacturer of the product that caused the injury through no fault of their own.
How Market Share Liability Works
Under market share liability, each defendant is initially presumed liable for a percentage of the damages equal to its market share. However, a manufacturer can exculpate itself by proving that it could not have produced the DES taken by the plaintiff’s mother. For example, a company could demonstrate that it did not manufacture DES during the relevant time.
It’s important to note that market share liability does not require all possible manufacturers to be joined in the lawsuit. This is a key distinction from alternative liability, which requires all potential tortfeasors to be present. The rationale is that over time, some manufacturers may go out of business, making it impossible to include them all.
Jurisdictional Acceptance and Variations
While Sindell v. Abbott Laboratories established market share liability in California, its acceptance in other jurisdictions has been varied. Some states have adopted the doctrine, while others have rejected it. Even among states that have adopted it, there can be significant differences in how it is applied.
For example, New York adopted market share liability in Hymowitz v. Eli Lilly & Co. (1989), another DES case. However, the New York Court of Appeals refused to allow manufacturers to exculpate themselves, arguing that doing so would undermine the purpose of market share liability.
Wisconsin has also adopted a version of market share liability, calling it the “risk-contribution theory.” Under this theory, a defendant may be held liable if they contributed to the risk of injury, were in a better position to absorb the costs, and the damages verdict would incentivize them to invest in loss reduction.
Criticisms and Limitations
Market share liability is not without its critics. Some argue that it deviates from traditional tort principles by holding companies liable even if they did not directly cause the plaintiff’s injury. Others argue that it can be unfair to manufacturers, particularly if they are held liable for a disproportionate share of the damages.
Courts have generally been reluctant to extend market share liability beyond DES cases. Attempts to apply it to other products, such as lead paint and vaccines, have largely been unsuccessful. This is because the unique circumstances of the DES litigation, including the fungibility of the drug and the difficulty in identifying the specific manufacturer, have not been present in many other cases.
The Enduring Impact of Sindell
Despite its limitations and criticisms, Sindell v. Abbott Laboratories remains a landmark case in product liability law. It established a new avenue of recovery for plaintiffs injured by defective products when the specific manufacturer cannot be identified. The case also highlights the challenges of applying traditional tort principles in cases involving mass torts and delayed injuries.
The Sindell decision offered a path to justice for DES daughters, allowing them to seek compensation for their injuries even when the passage of time and the nature of the drug made it impossible to identify the responsible party with certainty.
Statute of Limitations and the Discovery Rule
One significant hurdle in DES litigation is the statute of limitations, which sets a time limit for filing a lawsuit. Because DES-related injuries often manifest years after exposure, many potential claims would be barred by traditional statutes of limitations.
However, courts have often applied the “discovery rule” in DES cases. This rule states that the statute of limitations does not begin to run until the plaintiff discovers, or reasonably should have discovered, both the injury and its connection to the drug. This allows DES daughters to bring claims even decades after their exposure, as long as they file suit within the statutory period after discovering the link between their health problems and DES.
Do You Have a Potential DES Claim?
If you believe you may have been harmed by DES exposure, it is crucial to seek legal advice as soon as possible. An experienced attorney can evaluate your case, explain your legal options, and help you navigate the complexities of market share liability and the statute of limitations.
Consider these questions:
- Was your mother prescribed DES while pregnant with you?
- Were you born between 1938 and 1971?
- Have you been diagnosed with clear cell adenocarcinoma or other health problems associated with DES exposure?
- When did you become aware of the connection between your health issues and DES?
Seeking Justice and Accountability
Sindell v. Abbott Laboratories established a crucial legal precedent for holding pharmaceutical companies accountable when their products cause harm, even when the injured party cannot identify the specific manufacturer. Market share liability remains a vital tool for protecting the rights of individuals harmed by defective drugs and ensuring that those responsible are held accountable.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. If you believe you have a potential claim, consult with a qualified attorney.