Smith v. Cutter Biological, Inc.
823 P.2d 717, 1991 Haw. LEXIS 55, 72 Haw. 416 (1991)
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Rule of Law:
When a plaintiff, through no fault of their own, cannot identify which of several manufacturers produced the specific product that caused their injury, Hawaii law permits recovery under a modified market-share theory of liability where liability is several and apportioned according to each defendant's national market share.
Facts:
- Smith, a hemophiliac, regularly required injections of a blood protein called Antihemophilic Factor Concentrate (Factor VIII) to enable his blood to clot properly.
- Smith claims that between 1983 and 1984, he was infected with the Human Immunodeficiency Virus (HIV) through these injections of Factor VIII.
- Factor VIII is created from pooled blood plasma from thousands of individual donors.
- During the relevant period, Smith received Factor VIII from Tripler Army Medical Hospital, which was supplied by the four defendant manufacturers: Armour Pharmaceutical Corporation, Cutter Biological, Inc., Alpha Therapeutics Corporation, and Travenol Laboratories, Inc.
- Due to the nature of the product's creation from pooled plasma and its distribution, Smith was unable to identify which specific manufacturer's Factor VIII was responsible for his infection.
- In 1986, Smith tested positive for HIV antibodies.
Procedural Posture:
- Smith filed a lawsuit against four manufacturers of Factor VIII in the United States District Court for the District of Hawaii, alleging negligence and strict liability.
- The defendant manufacturers filed a motion for summary judgment.
- The U.S. District Court, a trial court, granted summary judgment in favor of the manufacturers, ruling that Smith had failed to prove which specific manufacturer's product caused his HIV infection.
- Smith, as the appellant, appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit, an intermediate federal appellate court.
- Finding no controlling Hawaii precedent on the issue of liability without specific causation, the Ninth Circuit certified three questions of state law to the Supreme Court of Hawaii.
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Issue:
Under Hawaii law, may a plaintiff who cannot identify the specific manufacturer of a defective product that caused their injury recover for negligence under a market-share theory of liability?
Opinions:
Majority - Lum, C.J.
Yes, Hawaii adopts a modified market-share theory of liability, allowing a plaintiff to recover in a negligence action even when the specific tortfeasor cannot be identified. The court first determined that Hawaii's Blood Shield Law (HRS § 327-51) precludes strict liability claims because Factor VIII is a 'blood component,' but it does not bar negligence claims. The court found that the statute's reference to 'its own negligence' did not foreclose the adoption of a multi-tortfeasor liability theory, reasoning that the legislature had not spoken on this specific issue, creating a 'lacuna' for the court to fill. After rejecting theories like alternative liability and enterprise liability due to their reliance on joint and several liability, the court adopted a modified market-share theory based on policy reasons articulated in Sindell v. Abbott Laboratories, including fairness to innocent plaintiffs and the deterrent effect on negligent manufacturers. The court held that this theory would use a national market to apportion liability, impose only several liability (not joint), and allow a defendant to be exculpated only by proving it did not have a product on the market at the time of the injury.
Concurring-in-part-and-dissenting-in-part - Moon, J.
No, Hawaii should not adopt the market-share theory of liability. The dissent concurs that the blood shield law bars strict liability but argues that it also precludes market-share liability. The statute's plain language, 'save and except that each such person or entity shall remain liable for... its own negligence,' unambiguously requires traditional proof of causation against a specific defendant. The majority improperly ignores this clear text to create a judicial remedy contrary to legislative intent, which was to limit liability to ensure the availability of blood products. Furthermore, the DES cases on which the majority relies are inapplicable because Factor VIII is not a fungible product like DES; since Factor VIII comes from different donor pools, the risk of HIV infection was not identical across all defendants' products. Finally, this major change in tort law involves complex social and economic policy questions that are better addressed by the legislature, and the court should exercise judicial restraint.
Analysis:
This decision marks a significant expansion of tort law in Hawaii by adopting a non-identification, market-share theory of liability for the first time. It provides a crucial avenue for recovery for plaintiffs in mass tort cases involving fungible products where proving direct causation is impossible. By opting for several liability over joint liability and using a national market, the court tailored the theory to align with modern legislative trends limiting joint liability while still holding manufacturers accountable. This ruling will likely influence future litigation involving pharmaceuticals, chemicals, or other mass-produced goods, potentially making Hawaii a more favorable jurisdiction for plaintiffs in such cases.
