Also, defendants assigned presumptive shares are held liable for the share of the market attributable to companies no longer in business or not otherwise amenable to suit. 1003, 1021 (adoption of market share liability may lead to assessing damages based only on wrongful conduct).) The Iowa Supreme Court rejected the doctrine "on a broad policy basis." (173 Ill. App.3d 1, 122 Ill. Dec. 835, 527 N.E.2d 333.) Though the market share liability theory has received some acceptance, in nearly every instance, the other theories have been soundly rejected. Moreover, plaintiff overestimates her narrowing of the likely defendants. It is tempting in this case to impose liability based on the fact that these companies profited from the sale of the type of drug which may be responsible for the plaintiff's injuries, regardless of the manufacturers' ability to cover these costs. On the other hand, those defendants who did not take safety precautions, but instead manufactured a defective product, would be the only manufacturers subject to market share liability. The case for Eli Lilly. Therefore, Wisconsin formulated its alternative, commonly referred to as the "risk contribution theory." Most of the Federal courts which have addressed the issue of applying market share liability in a DES case have declined to adopt such a radical departure from the common law of the State in which each sits without a clearer direction from that State's supreme court. The record establishes that Tab 98 designated 25 milligram tablets of DES. at 41, 560 N.E.2d at 343). (See also Miller & Hancock, Perspectives on Market Share Liability: Time for a Reassessment?, 88 W.Va.L.Rev. Motions were filed by a number of named defendants attacking jurisdiction, asserting changes in corporate structure or ownership that would bar successor liability, or charging error of identity. In addition to market share liability, most plaintiffs in the DES cases have argued that enterprise liability or alternative liability, as well as a concert of action and a conspiracy theory, should apply to extend liability to a group of defendants. 4 Dockets.Justia.com Other companies were granted summary judgment on all counts of the complaint as they were determined not to be part of the relevant DES market. The court rejected unalloyed market share liability, concluding that it "does not constitute the most desirable course to follow in DES cases because the theory, while conceptually attractive, is limited in practical applicability." If the average amount of damages awarded in X's cases was equal to the average amount of damages awarded in Y's and Z's cases, then X would be paying 50%, and Y and Z would each be paying 25%, of the damages arising from DES. 155, 197, 561 A.2d 511, 532 (O'Hern, J., dissenting) (recognizing Hymowitz as perhaps the most controversial of the market share decisions); Note, Hymowitz v. Eli Lilly: New York Adopts a "National Risk" Doctrine for DES, 25 Tort & Ins. The court concluded "that awarding damages to an admitted innocent party by means of a court-constructed device that places liability on manufacturers who were not proved to have caused the injury involves social engineering more appropriately within the legislative domain." Eli Lilly; Holly Smith; Holly Smith. The thrust of plaintiff’s causes of action is the drug companies’ alleged failure to properly test DES and to adequately warn of its dangers.” …. Plaintiffs who are able to identify the manufacturer of the DES that caused their injuries, on the other hand, will be able to recover 100% of their damages under traditional tort law. One reason the majority rejects market share liability is the majority's fear that "market share liability will surely broaden manufacturers' liability exposure because they will need to insure against losses arising from the products of others in the industry as well as their own." In res ipsa loquitur and alternative liability the burden of identifying the culpable defendant is shifted from the plaintiff to defendants. (Zafft v. Eli Lilly & Co. (Mo.1984), 676 S.W.2d 241, 246.) Even though judgment had been entered, he again confronted Smith and Eli Lilly. (See Schmidt, 44 Ill. 2d at 405, 256 N.E.2d 6; Tiffin v. Great Atlantic & Pacific Tea Co. (1959), 18 Ill. 2d 48, 60, 162 N.E.2d 406.) According to an affidavit of John Kraas, an employee of defendant Eli Lilly & Company, there were 81 companies which marketed DES in 25 milligram tablets between 1952 and 1953. (Restatement (Second) of Torts §§ 876(a), (b), at 315 (1979).) The plaintiff, Sandra Smith, was born on July 13, 1953, in Chicago, Illinois. This aspect of the majority's reasoning is somewhat disingenuous. 185, 194 (1980).) It was upon the request of the FDA that the small group convened to present a master file of data on behalf of the rest of the industry. Defendants point out that when the drugs leave their plant they are identified, but it is along the chain of distribution that the goods become commingled and less traceable. Rptr. However, this is not a strong enough reason to adopt a theory which would alter our tort law significantly while only providing a markedly flawed alternative with unclear future ramifications. Div.1981), 178 N.J.Super. 4,974. Eli Lilly will raise its dividend by 15% to $0.85 per share Sara Eisen joins 'Closing Bell' to report Eli Lilly will be raising its dividend by 15 percent. Twelve defendants were able to exculpate themselves on the basis that they could not have manufactured the DES that plaintiff's mother took because their product either was not of the same dosage, color or type, or was not sold to the Field Clinic. Other than these cases, the concept of market share liability has not received strong support. The court claimed that the "adoption of any theory of alternative liability requires a profound change in fundamental tort principles," which is more properly the domain of the legislature. Rptr. However, the court refused to apply California substantive law because it would violate the public policy of the forum. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 621, 623, 210 N.E.2d 182; Restatement (Second) of Torts § 402A (1965).) This argument is incorrect, as an initial matter, because market share liability would not impose liability upon all manufacturers in a particular industry. In Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 37 Ill. Dec. 304, 402 N.E.2d 194, this court held that in a strict liability action based on a failure to warn of a danger the plaintiff must allege and prove that defendant knew or should have known of the danger and this is tested on knowledge existing at the time of production. Furthermore, this is too great a deviation from a tort principle which we have found to serve a vital function in the law, causation in fact, especially when market share liability is a flawed concept and its application will likely be only to a narrow class of defendants. Consequently, plaintiffs would still have a strong incentive to identify specific manufacturers. On the contrary, the San Francisco trial judge's statement actually suggests that such a national market can be established. *325 Richard C. Bartelt, of Wildman, Harrold, Allen & Dixon, Chicago, and Stephen E. Scheve and Laura D. Stith, of Shook, Hardy & Bacon, Kansas City, Mo., for appellant Eli Lilly & Co. Hugh L. Moore, of Lord, Bissell & Brook, Chicago, for appellant Abbott Laboratories. Plaintiff points out that in 1941 a "small committee" was created to gather FDA-required data and the committee jointly submitted an application for approval to market DES for non-pregnancy-related purposes. Second, it believed that the manufacturer was in a better position to bear the cost involved in an injury. Alternative liability, for example, as codified in the Restatement (Second) of Torts, provides: The policy justification for relaxing the causation requirement in alternative liability situations is that it would be unjust to permit "proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm." Docket activity of federal case SMITH v. ELI LILLY & COMPANY, case number 1:10-cv-01615, from Indiana Southern Court. (See 137 Ill. 2d at 256-57, 148 Ill.Dec. The correlation between market share liability and liability under traditional tort principles may not be perfect. It reasoned that each defendant contributed to the risk of injury to the public and consequently to the risk of injury to the plaintiff. The effects caused by prenatal exposure to DES usually do not manifest themselves until at least after the child reaches puberty, and more years may pass before the cancer is linked to DES. 412, the California Supreme Court resolved some of the ambiguities. (Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d 401, 405-06, 256 N.E.2d 6; M. Polelle & B. Ottley, Illinois Tort Law 422-23 (1985); Annot., 51 A.L.R.3d 1344, 1349 (1973) ("it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product").) Likewise, to recover under strict liability the plaintiff must establish some causal relationship between the defendant and the injury-producing agent. I have no doubt that establishment of a national market would be a very difficult, costly, and time-consuming process. Further exacerbating the problem is the fact that during the 25 years that DES was used to treat pregnancy-related problems, as many as 300 companies manufactured the drug. The burden of proof shifts to each defendant to prove his innocence. Our appellate court was also under the same misconceptions. (See Bichler v. Eli Lilly & Co. (1982), 55 N.Y.2d 571, 577, 436 N.E.2d 182, 184, 450 N.Y.S.2d 776, 778; Namm v. Charles E. Frosst & Co. (App. The practice at the Field Clinic was to store and dispense drugs by number, rather than by name. Concert of action applies when a tortious act is done in concert with another or pursuant to a common design, or a party gives substantial assistance to another knowing that the other's conduct constitutes a breach of duty. Parties, docket activity and news coverage of federal case Fisher-Smith v. Eli Lilly and Company et al, case number 2:12-cv-00064, from Kentucky Eastern Court. (83 Ill. 2d at 394, 47 Ill. Dec. 392, 415 N.E.2d 397, 47 Ill. Dec. 392, 415 N.E.2d 397. Kirk, 117 Ill. 2d at 528, 111 Ill. Dec. 944, 513 N.E.2d 387 (Renslow represents a "limited area of transferred negligence"). However, it is equally possible that the average amount of damages in X's cases could exceed the average amount of damages in Y's and Z's cases, in which case X would incur more liability under traditional tort principles. The court of appeals of New York recently declined to accept Wisconsin's risk contribution theory, believing that it would only be feasible on a limited scale. The remaining eight defendant manufacturers included Abbott Laboratories, Eli Lilly & Company, Premo Pharmaceutical Laboratories, Inc., Carroll Dunham Smith Pharmacal Company, William H. *327 Rorer, Inc., S.E. The majority apparently believes that market share liability will increase liability exposure in three ways. Of the 138 companies named, 70 filed appearances. at 35, 560 N.E.2d at 337. The appellate court supported its conclusion that market share liability should be adopted based in part on analogies to two other causation exceptions. Furthermore, it is possible that liability will far exceed the probability that a defendant caused the injuries. Justice Richardson argued that the theory will result in imposition of liability on pure conjecture and that it rewards the plaintiff who, unlike the ordinary plaintiff, no longer has to take the chance that the responsible defendant cannot be reached or is unable to respond financially. 3d 250, 246 Cal. 1978), is a 1978 decision of the United States Court of Appeals for the Third Circuit that first considered the … Du Pont De Nemours & Co. (E.D.N.Y. Second, in res ipsa loquitur and alternative liability, burden-shifting is considered equitable because defendants are typically in a better position than the plaintiff to determine who caused the harm. New York's theory utilizes a national market. When the majority considers the potential negative effects of market share liability (i.e., stifling development and marketing of new drugs), the majority argues that adoption of market share liability in this case will have far-reaching, dramatic consequences on the entire pharmaceutical industry. 19, 427 A.2d 1121, which refused to adopt alternative liability or enterprise liability in a DES action. Of the 81 potential manufacturers of the DES taken by plaintiff's mother, 63 were not named in the complaint. at 145). 1. Twenty companies remained in the suit after these motions were resolved. 540, 437 N.E.2d 171). (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 442-43, 137 Ill. Dec. 635, 546 N.E.2d 580; Stallman v. Youngquist (1988), 125 Ill. 2d 267, 277, 126 Ill. Dec. 60, 531 N.E.2d 355; Note, Market Share Liability: A Plea for Legislative Alternatives, 1982 U.Ill.L.Rev. As the majority notes, that court considered each of the previous three judicially promulgated theories of market share liability, and recognized those theories' shortcomings, before developing its own theory in Hymowitz. First, the majority notes that market share theories which variously inflate liability to account for those manufacturers that are not before the court, impose joint and several liability, or impose liability on a pro rata basis, may cause manufacturers to incur liability in excess of their market shares. The majority rejects the Hymowitz approach, concluding, in a rather cursory fashion, that "[j]ust as the previous theories have not been embraced by subsequent courts, it is unlikely that New York's theory will receive broad acceptance." The argument thus begs the question. We recognized res ipsa loquitur in Kolakowski v. Voris (1980), 83 Ill. 2d 388, 47 Ill. Dec. 392, 415 N.E.2d 397, where the plaintiff was injured while unconscious during surgery and could not identify the negligent party. The thrust of these causes of action is that the drug companies failed to properly test DES and to adequately warn of its dangers. The theory thus punishes plaintiffs who can satisfy the identification element, while creating an incentive not to locate the particular manufacturer. The majority's rejection of the Hymowitz theory of market share liability is apparently based upon a number of specific criticisms which have been made of the market share theories previously developed by courts in this country, and upon other more general criticisms of the overall *348 concept of market share liability. Fischer, Products LiabilityAn Analysis of Market Share Liability, 34 Vand.L.Rev. at 780-83 (1990).) (See Ryan v. Eli Lilly & Co. (D.S.C.1981), 514 F. Supp. (See 137 Ill. 2d at 252-53, 148 Ill. Dec. at 35, 560 N.E.2d at 337.) at 40-41, 560 N.E.2d at 342-343.) Parties, docket activity and news coverage of federal case Smith v. Eli Lilly and Company et al, case number 1:17-cv-05734, from Illinois Northern Court. Rptr. 185, 194-97 (1980).) Plaintiff sued Archer and evidence established that the defective pin was similar in color to the pins manufactured by defendant, but several other manufacturers produced similar *329 pins. As illustrated in this case, the majority of plausible defendants have not been or cannot be brought before the court. 300, 328 (1981) (it is an unfair system to impose liability solely due to ability to pay and subsequently spread the costs).) If only one company is sued and no others are impleaded, that company is liable for all the damages if it cannot exculpate itself. Other than the overall concept of market share liability, which will be addressed later in this opinion, the rule as specifically developed in Sindell has been extensively criticized, and as of this date only one Federal district court has adopted it in the same form. 4 Dockets.Justia.com The defendants appealed the denial of their motion for summary judgment as to count X and plaintiff cross-appealed the trial court's grant of summary judgment as to counts I through IX. Some of these defendants and a number of others filed individual motions for summary judgment on the ground that the plaintiff's mother did not use their products. She seeks relief against defendant DES manufacturers. Smith Pharmacal. Many of those defendants who have been named are no longer in business or have filed motions challenging jurisdiction and for these companies especially it is unlikely that records will be available to establish their share of any market. 637, 639 (there is no indication that the New Jersey Supreme Court would deviate from the causation requirement), aff'd (3d Cir.1982), 696 F.2d 984; Ryan v. Eli Lilly & Co. (D.S.C.1981), 514 F. Supp. In either event, the correlation between the potential for liability under traditional tort principles and the potential for liability under market share theories is close enough to allay any fears that market share liability will greatly increase manufacturers' liability exposure. (173 Ill.App.3d at 23, 122 Ill. Dec. 835, 527 N.E.2d 333.) (137 Ill. 2d at 263-64, 148 Ill.Dec. This helps to preserve the identification element because liability will surely fall on the actual wrongdoer. In late 1941, the FDA approved the production and marketing of DES *10 for purposes unrelated to pregnancy. Alternative liability may apply when two or more defendants act tortiously toward a plaintiff who, through no fault of her own, cannot identify which one of the joined defendants caused the injury. “The present consolidated appeal arises out of a pharmaceutical product liability action brought by plaintiff against various drug companies seeking recovery for injuries allegedly caused by her mother’s ingestion of diethylstilbestrol (DES). 67732, 67747 cons. X would in effect be paying for damages caused by Y and Z. I agree with the majority that, if market share liability were adopted, manufacturers who can be causally linked to DES which caused damages in a specific case could incur a disproportionate amount of liability. at 145.) This information was derived from medical and pharmaceutical industry references. The court-developed exception was codified in Restatement (Second) of Torts, section 433B, and reads as follows: As noted, every court which has addressed the issue has held, for a number of reasons, that alternative liability does not apply to DES cases. Litigants, 30 Cath.U.L.Rev. If identification of the DES manufacturer could be made in all cases, X would be the sole defendant in 50% of the DES daughter cases and would be liable for 100% of the damages in those cases. If that sole defendant is a small contributor to the DES market, such as Boyle and Massengill, it possibly could shoulder complete liability without proof of *333 its being the cause in fact for the injury. 351 - POOLE v. ALPHA THERAPEUTIC CORP., United States District Court, N.D. Illinois, E.D. Criticisms include that the court failed to identify the relevant market for purposes of determining a particular defendant's market share, i.e., local, countrywide, statewide or national, and a manufacturer's liability will vary widely depending on which market is used. The majority further states that "it is unlikely that an overall safety incentive could result from imposition of market share liability 40 years after the undesirable behavior occurred and almost 20 years after the potential harm was discovered and the product removed from the market." (137 Ill. 2d at 264, 148 Ill.Dec. It is certainly true that recognizing market share liability may result in the drug manufacturers in this case incurring liability for the manufacture of defective products that, because the plaintiff cannot prove causation in fact, the manufacturers would not otherwise incur. (National Childhood Vaccine Injury Act of 1986, 42 U.S.C. Accordingly, a working committee of four companies was formed which collected all the data, prepared the master file and submitted it to the FDA. Comment, Overcoming the Identification Burden in DES Litigation: The Market Share Liability Theory, 65 Marq.L.Rev. 3d 1049, 751 P.2d 470, 245 Cal. at 147-48 (Richardson, J., dissenting) (it is highly speculative that defendant's liability equals the harm actually caused); Fischer, Products LiabilityAn Analysis of Market Share Liability, 34 Vand.L.Rev. The court included a number of factors for the jury to consider in apportioning damages, such as the market share of the defendant, whether the company conducted safety tests on DES, the role the company played in seeking FDA approval of the drug, and whether the company issued warnings. Plaintiff contends she has brought before the court "virtually all" of the companies which comprised the small committee, thus she has all the parties responsible for making DES available for use as a miscarriage preventative. Listed below are those cases in which this Featured Case is cited. If you wish to see the entire case, please consult PACER directly. But see Dyback v. Weber (1986) 114 Ill. 2d 232, 239, 102 Ill. Dec. 386, 500 N.E.2d 8 (in light of comparative negligence, plaintiff's freedom from contributory negligence is no longer a requirement in order to make out a prima facie case under res ipsa loquitur).) (See Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 37, 37 Ill. Dec. 304, 402 N.E.2d 194 ("This Court is acutely aware of the social desirability of encouraging the research and development of beneficial drugs"); Zafft, 676 S.W.2d at 247 (there are legitimate concerns that market share liability "will discourage desired pharmaceutical research and development while adding little incentive to production of safe products"); Payton v. Abbott Labs (1982), 386 Mass. In 1971, two medical studies suggested that there was a statistically significant association between the outbreak in young women of clear cell adenocarcinoma, a form of cancer, with the maternal ingestion of DES during pregnancy. In August or September 1980, plaintiff filed her initial complaint against more than 100 drug companies which allegedly distributed DES to the Field Clinic, 70 of which filed appearances. In 1940, a number of pharmaceutical companies in the United States sought the approval of the Food and Drug Administration (FDA) to market DES in up to 5 milligram doses to treat vaginitis, engorgement of the breasts, excessive menstrual bleeding and symptoms of menopause. San Francisco County), No. However, we do not believe that we should abrogate a fundamental precept of tort law to reach this goal and ignore the effects of adopting market share liability. Publications. It is therefore clear that market share liability does provide a strong incentive for manufacturers to produce safe products. We believe that plaintiff's "link" is insufficient to create what is commonly understood as the connection between a potentially responsible defendant and the injury-causing product. Kurt M. Zitzer & Marc D. Ginsberg, Illinois Rejects Market Share Liability: A Policy Based Analysis of Smith v. Eli Lilly & Co., 79 Ky. L.J. They further argue that the expansions in tort law are having the perverted results of eliminating production of certain useful and necessary drugs, and dramatically increasing insurance costs such that some companies either can no longer obtain insurance or cannot pass the costs on to consumers. Cir. The records recovered from the Field Clinic identify numerous companies which supplied drugs to the clinic, some of which were also suppliers of DES, but these are insufficient to match the company with the drug dispensed to the plaintiff's mother. 939, 959-61 (1987).) To avoid the theoretical and practical problems of the previous theories, the court of appeals of New York adopted a theory which apportions liability based upon "the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large." Actavis UK Limited & Ors v Eli Lilly and Company  UKSC 46 2. I therefore dissent. 183; see also Cummins v. Firestone Tire & Rubber Co. (1985), 344 Pa. Super. Defendants. Suvada, 32 Ill. 2d at 623, 210 N.E.2d 182, quoting Molitor v. Kaneland Community Unit District No. at 596; see also Morton v. Abbott Laboratories (M.D.Fla.1982), 538 F. Supp. The plaintiff need only sue one drug company and that company need not constitute a substantial share of the market. Thus, it is unwarranted to make each responsible for the others' products based on some type of enterprise liability theory. In this appeal, plaintiff has chosen not to cross-appeal the dismissal of the claims based on concert of action, civil conspiracy, enterprise liability and alternative liability. The courts which have adopted market share liability have done so while ruling on pretrial motions and have not had the benefit of first having heard evidence on the availability of market share data. Rptr. Eli Lilly's second-quarter results provide a pretty good snapshot of where the company stands right now. Sign in to add some. If all defendants are able to establish their actual market share and the percentage of the market represented is less than 100%, plaintiff's recovery is limited to that percentage of the market which is actually represented. The *338 transcripts clearly refute this assertion. Another reason the majority is not convinced that adoption of market share liability will encourage the production of safe drugs is that "market share liability imposes potential liability on all manufacturers in the particular industry; thus there may not be an incentive to produce safer products if liability could still be imposed as a result of the negligence of others in the industry and if the manufacturer knows that others in the industry will absorb the damages resulting from its negligence." Market share theories of negligence and strict liability, 34 Vand.L.Rev b ), 351 Pa. Super questioned! Its duty to plaintiffs who can satisfy the Identification element, while creating an incentive not to locate the manufacturer... Injuries their product may not be perfect not constitute a substantial share of a drug Company and that need... None of these companies are no longer in existence, having merged with other concerns or gone into liquidation 940. Must establish some causal relationship between the defendant will be helpful Modified on Denial Rehearing..., 2020 in 25 % of the defendants are presumed initially to have an equal share. The 138 companies named, 70 filed appearances causation had not been accepted... ( 1928 ), 116 Wis.2d at 192-93, 342 N.W.2d at 48. are deceased to!, ( b ), 170 N.J. Super 1959 ), 248 N.Y. 339, 341, 162.... ; Holly Smith ; Holly Smith safety incentives provided are sufficient to adopt the theory against two DPT manufacturers the. P.2D at 939-40, 163 Cal the air is not before the court addressed!, 75. 98 designated smith v eli lilly milligram tablets of DES causation in fact reached a settlement,. Diligence requirement ). into liquidation completion of discovery, 14 defendants filed joint. Diligence requirement ). Fordham L.Rev share and are then only liable for their market share,! Risk contribution theory. the activity of federal case data Ryan v. Eli Lilly & Co. ( D.S.C.1981,! Company Fortville, Indiana Pharmaceuticals of fact the Sindell court realized that the drug industry it reasoned that public... Kelley School of Business at Indiana University issue of the joint motion for summary judgment risk of injury to risk. The probability that a mere possibility is insufficient to satisfy causation review of York... Based in part on analogies to two other causation exceptions July 3 1990... Smith became pregnant with Sandra Smith, the plaintiff to bring suit against one... 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