Martin v. Abbott Laboratories
102 Wash. 2d 581, 689 P.2d 368 (1984)
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Rule of Law:
In cases involving a fungible product like DES, a plaintiff who cannot identify the specific manufacturer of the product that caused her injury may recover against defendant manufacturers by establishing that they produced or marketed the type of product ingested. Liability is then apportioned among non-exculpated defendants based on their respective shares of the relevant market.
Facts:
- In 1962, while pregnant with her daughter Rita, Shirley Ann Martin was prescribed and ingested the drug diethylstilbestrol (DES) to prevent a miscarriage.
- The DES Shirley Martin took was in 100 mg. doses.
- In 1980, Rita Martin was diagnosed with clear cell adenocarcinoma of the vagina, a cancer linked to in utero DES exposure.
- Due to the passage of time and the fact that DES was marketed generically by up to 300 companies as a fungible, chemically identical drug, Shirley Martin, her physician, and her pharmacist were unable to identify the specific company that manufactured the DES she took.
- During the 1940s, numerous drug companies collaborated by pooling clinical data in a "master file" to gain FDA approval to market DES, initially for uses unrelated to pregnancy.
- In 1947, drug companies began seeking and receiving FDA approval to market DES as a miscarriage preventative, often relying on published studies by independent researchers rather than their own extensive testing.
Procedural Posture:
- Rita and Shirley Martin sued numerous drug manufacturers and a pharmacist in a state trial court.
- Several defendants were dismissed from the suit or defaulted.
- The remaining manufacturer defendants moved for summary judgment, arguing the Martins' inability to identify the specific producer of the DES was fatal to their claim.
- The trial court granted summary judgment to most defendants, dismissing them from the case.
- The trial court denied summary judgment for defendants Stanley Drug Products, Inc., and Kirkman Laboratories, Inc., finding a triable issue of fact existed under the theory of 'alternate liability'.
- The Martins appealed the summary judgment dismissals to the Washington Supreme Court.
- Stanley Drug and Kirkman appealed the denial of their summary judgment motions to an intermediate appellate court.
- Both appeals were consolidated for review before the Washington Supreme Court.
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Issue:
Does a plaintiff state a valid cause of action against a group of drug manufacturers for injuries caused by the drug DES when the plaintiff is unable to identify the specific manufacturer that produced the drug her mother ingested?
Opinions:
Majority - Dore, J.
Yes, a plaintiff states a valid cause of action against DES manufacturers even if she cannot identify the specific producer. The court rejects traditional theories of alternate liability, concerted action, and enterprise liability as unsuitable for DES litigation. It also rejects the California 'Sindell' market-share theory because it can unfairly require defendants representing less than 100% of the market to pay 100% of the damages. Instead, the court adopts a new 'market-share alternate liability' theory. Under this theory, a plaintiff must prove a defendant produced or marketed the type of DES her mother ingested. The burden then shifts to each defendant to exculpate itself. Defendants who cannot are presumed to have an equal share of the market but can reduce their liability by proving their actual market share. A defendant is only liable for its portion of the market, meaning a plaintiff may not recover 100% of her damages if culpable defendants are not joined.
Concurring-in-part-and-dissenting-in-part - Pearson, J.
This opinion concurs with the majority's adoption of the market-share alternate liability theory but dissents from its adoption of the 'product line' rule for successor corporate liability. The dissent argues that imposing strict liability on a successor corporation that did not manufacture or market the specific harmful product is inconsistent with the core policies of strict liability, which aim to hold the actual creators of the risk responsible. The justifications for the 'product line' rule—such as the successor's ability to spread costs and its enjoyment of the predecessor's goodwill—are unpersuasive and economically questionable, particularly for smaller companies. The traditional corporate law rule for successor liability, with its established exceptions, is better aligned with the principles of tort law.
Analysis:
This case establishes a novel 'market-share alternate liability' theory in Washington, creating a new path to recovery for plaintiffs harmed by fungible products who cannot prove specific causation. By modifying California's influential 'Sindell' approach, the court created a distinct rule that apportions liability more precisely to a defendant's market presence and accepts that a plaintiff might not achieve full recovery. This decision significantly lowers the barrier for plaintiffs in such cases while providing a clear framework for defendants to limit their liability. The court's additional adoption of the 'product line' theory for successor liability also expands the scope of accountability in products liability cases within the jurisdiction.
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