P alleged that her mother ingested DES which was marketed by Ds, 5 drug companies. The drug was also marketed by 195 other drug companies.
The drug was to prevent miscarriage but P developed cancer as a result. P could not identify the manufacturer of the drug.
Trial court dismissed the action.
CA Supreme Court reversed.
Can a P injured by a drug of unknown source recover against known manufacturers of the drug?
A P injured by a drug of unknown source can recover against known manufacturers of the drug under the market share theory.
A P must bring before the court Ds representing a "substantial share" of the market. A D is dismissed from the case if it can prove that it did not produce the drug taken by the P. Each of the remaining Ds is severally liable for only that portion of the P's damages that corresponds to the percentage of its share of the market.
The most persuasive reason for finding P states a cause of action is that the negligent Ds should bear the cost of the injury. P is not at fault in failing to provide evidence of causation.
Their conduct in marketing a drug, the effects of which are delayed for many years, played a significant role in creating the unavailability of proof.
Ds are better able to bear the cost of injury resulting from the manufacture of a defective product.
When medication is involved, the consumer is virtually helpless to protect himself from serious injuries.
It is reasonable to hold any of the Ds who supplied the product liable for the percentage of DES which they sold.
The burden is then shifted to Ds to prove that they did not produce the drug that caused the injury.
Each D will be held liable for its percentage of market share.