Sutowski v. Eli Lilly & Co.
696 N.E.2d 187, 82 Ohio St. 3d 347 (1998)
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Rule of Law:
In Ohio, market-share liability is not a recognized theory of recovery in a products liability action, as plaintiffs must prove that a specific defendant's product proximately caused their injury.
Facts:
- Starting in the late 1940s, Diethylstilbestrol (DES), a synthetic estrogen, was widely prescribed to women for complications during pregnancy.
- DES was an unpatented, generic drug produced by approximately 200-300 different pharmaceutical companies, making the products of different manufacturers fungible and often indistinguishable.
- In the early 1970s, researchers discovered a causal link between in utero exposure to DES and rare forms of cancer and other reproductive disorders in the daughters of women who had taken the drug.
- A plaintiff, Sutowski, alleged she suffered reproductive disorders as a result of her mother's ingestion of DES during pregnancy.
- Due to the long latency period between exposure and injury, the generic nature of the drug, and the passage of time, Sutowski was unable to identify the specific manufacturer of the DES her mother consumed.
Procedural Posture:
- The underlying products liability action was filed in the United States District Court.
- The U.S. District Court certified a question of state law to the Supreme Court of Ohio to determine if market-share liability is a viable theory of recovery in a DES case under Ohio law.
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Issue:
Does Ohio law recognize market-share liability as a viable theory of recovery in a products liability action involving Diethylstilbestrol (DES)?
Opinions:
Majority - Cook, J.
No, Ohio law does not recognize market-share liability as a viable theory of recovery in a products liability action. Traditional Ohio tort law requires a plaintiff to prove a direct causal link between a specific defendant's conduct and the plaintiff's injury. Market-share liability abandons this fundamental principle of proximate causation by holding manufacturers liable for injuries their specific product may not have caused, which improperly transforms them into industry-wide insurers. The court's prior decisions, such as Goldman v. Johns-Manville, rejected market-share liability in the asbestos context and deferred to the legislature on such a significant policy shift. Furthermore, the Ohio Products Liability Act codifies the requirement that a plaintiff must identify the specific manufacturer whose defective product caused the harm. The legislature's explicit adoption of alternative liability while remaining silent on market-share liability reinforces the conclusion that it is not part of Ohio law. Therefore, any substantial alteration of this foundational tort principle is a matter for the General Assembly, not the judiciary.
Dissenting - Douglas, J.
Yes, Ohio law should recognize market-share liability as a viable theory of recovery. The majority misunderstands the theory, which does not eliminate the requirement of proximate causation but merely relaxes the need to identify the specific tortfeasor among a group of negligent actors who placed a fungible, defective product on the market. The plaintiff must still prove that DES caused her injury and that the defendants manufactured the harmful product. The Ohio Products Liability Act does not prohibit market-share liability, and under this court's precedent in Carrel, common-law theories not specifically covered by the Act survive. The legislature's failure to explicitly ban market-share liability, especially after considering and removing such a provision from a bill, indicates its intent to leave the matter to the courts. Denying this remedy is fundamentally unfair to innocent plaintiffs whose inability to identify the manufacturer is a direct result of the defendants' marketing of a generic, fungible product.
Dissenting - Pfeifer, J.
Yes, Ohio law should recognize market-share liability. The Ohio Constitution's right-to-remedy clause mandates that injured persons have a remedy in a meaningful manner. The majority's decision denies this constitutional right to DES victims by creating an insurmountable barrier to recovery. DES cases are uniquely suited for market-share liability because the product was fungible, universally defective for its intended purpose, and caused devastating harm, while the manufacturers' actions made specific identification impossible. The majority's holding perversely shields the culpable drug companies that profited from a defective product while leaving innocent, grievously injured plaintiffs without any recourse. This result is unconscionable and turns the constitutional right to a remedy on its head.
Analysis:
This decision firmly entrenches Ohio within the majority of jurisdictions that reject the market-share liability theory, reinforcing a strict adherence to traditional tort principles of direct, individual causation. The ruling effectively closes the courthouse doors to plaintiffs in Ohio harmed by fungible products who, through no fault of their own, cannot identify the specific manufacturer of the product that caused their injury. By explicitly deferring to the legislature, the Ohio Supreme Court signals its commitment to judicial restraint regarding significant alterations to common law tort doctrine, placing the onus on lawmakers to create remedies for these types of mass tort situations.
