John Pell

Section 029 - LWSO 100

Facts

Judith Sindell brought an action against eleven drug companies and Does 1 through 100, on behalf of herself and other women similarly situated.

Over 30 years, Abbott laboratories (and other manufacturers) sold a drug diethlstillbesterol (DES), a synthetic estrogen. Sindell's mother took the drug during pregnancy, and Judith developed cancer in her early twenties because of it. Defendants knew, or should have known, that the drug caused cancer, yet continued to market it. They didn't test thoroughly. They marketed it widely, even though the FDA only approved it as experimental. 

Sindell had the cancer removed and now must undergo regular examinations. 

Charges

Sindell alleges that the defendants were individually and jointly negligent in that they manufactured and marketed DES as safe and effective, when it was neither.

Trial Court Decision

The lower court granted the defendant's demurrer because Sindell could not identify who manufactured the specific drug that caused her cancer.

Grounds for Appeal

Sindell posits that, based on Summers v. Tice, the burden of proof may be shifted to the defendants. Alternatively, she posits that the defendants acted in concert, and finally that the whole industry should be liable anyway.

Appellate Decision

The appellate court rejected Sindell's suggestions, but created a fourth and reversed the lower court's decision. 

Reasons and Reasoning for Appellate Decision

The rule as applied in Summers cannot be applied here because there are over 200 companies which may have been responsible, whereas in Summers there were only two individuals. The defendants could be said to have acted in concert if  they relied upon each other for testing or promotions. It can be said of any industry that various companies rely upon each other to build their combined markets, but that does not directly translate to this case. If it did, then any manufacturer could theoretically be held accountable for flawed products of any other. It cannot be said that the defendants knew that each others products were defective, or that they encouraged each other to produce defective products, so they cannot be held liable by acting in concert. The suggestion of enterprise liability arises from a case against Du Pont et al regarding blasting caps. In that case, almost the entire industry was represented as defendants and the safety of the products in question was poorly protected, and that the companies did, in fact, act in concert with regard to the industry standard of labeling and safety precautions by way of a trade association. This is not the case here. 

The court extends the Summers rule thusly: Between an innocent plaintiff and negligent defendants, the latter should bear the cost. In their production and marketing of DES they were negligent, and therefore are all liable for the harm caused. In this case, the manufacturer is in the best position to discover and guard against defects in its products. Holding it liable will provide an incentive for product safety. 

The court holds that when the plaintiff joins her action against the majority of the producers of the product (which Sindell did), then these producers ought to be responsible for their share of the production of the drug.

A dissenting opinion says that the court ought not to hold responsible parties whom it does not know to be responsible.