Defendant Indeterminacy: New Wine into Old Skins

• Author: M. Stuart Madden; Jamie Holian
• Position: Distinguished Professor of Law, Pace University School of Law; J.D. 2006, Santa Clara University School of Law.
• Pages: 785-822

Distinguished Professor of Law, Pace University School of Law.

J.D. 2006, Santa Clara University School of Law.

I Introduction

Environmental tort litigation often reveals causal indeterminacy on both sides of the caption: indeterminate plaintiffs and indeterminate defendants. A cardinal tenet of traditional tort law liability rules is that the plaintiff must prove that the defendant's conduct was a producing cause of the harm suffered. In the conventional sporadic accident case, identifying the responsible defendant is usually not difficult because of the availability of physical or direct evidence that implicates a particular defendant. In toxic and environmental harm cases, however, the chemical agent or polluting source often does not come branded or trademarked with the defendant's name. While defendant or source indeterminacy arose occasionally in products liability cases and accident cases, the frequency and difficulty of source indeterminacy in environmental and toxic torts create new demands on the courts to develop rules that continue to fulfill the objectives of tort law.

Several courts in diverse circumstances have found plaintiff- favorable procedural or substantive law means to permit the plaintiff to recover against single members of a pool of indeterminate defendants. The situations in which such recoveries would be permitted have been quite limited, largely because courts have, to date, confined application of these legal devices to suits involving products that were identical in chemical composition. Put another way, since a molecule of diethylstilbestrol ("DES") is identical to any other molecule of DES, many courts felt free to attach some form of proportionate liability to all negligent manufacturers of DES, even though the producer of the DES ingested by the mother of a particular plaintiff could not be determined. In contrast, as asbestos is not one mineral but rather a family of distinguishable minerals, each with a different disease causing potential, even courts that adopted novel approaches to Page 786 DES litigation refused to apply these procedures to asbestos litigation.

This article describes two recent decisions that could foretell new and more liberal approaches to market share liability.¹ In one suit involving a child who suffered lead paint poisoning, the Wisconsin Supreme Court, applying that state's law, held that for application of market share liability, it was not necessary that the paint, as marketed by numerous manufacturers over the years, be identical, which of course it was not.² Instead, the court held it was sufficient that the bio-accessibility of the toxic component, lead carbonate, be identical in each defendant's products, which it was.³ In the second decision, a New York federal trial judge in a multi-district litigation involving methyl tertiary butyl ether ("MTBE") specified numerous jurisdictions she anticipated would apply market share liability to MTBE suits, even though the concentrations of MTBE, and thus their toxicity, varied in virtually every suit.⁴

The article concludes with a discussion of the potential applicability of these two innovative decisions to litigation involving other products or processes and, more broadly, the effect that any such applicability might have to the certainty, fairness, and predictability of toxic tort litigation.

II Sindell V. Abbott Laboratories

A The Path to Sindell

Traditional principles of tort law require proof, by a preponderance of the evidence, that a plaintiff suffered an injury caused by a particular defendant's conduct.⁵ In the conventional sporadic accident case, identification of responsible defendants is not difficult, as causation can be determined by the availability of physical or direct evidence that implicates a particular defendant.⁶ Page 787 In other circumstances, such as (1) where one of multiple defendants may have caused the harm, (2) there is a substantial period of time between the harmful conduct and the putative plaintiff's awareness of it, or (3) a combination of both, it may be difficult-if not impossible-to determine the manufacturer of fungible or uniform products.⁷ The judicial response to this problem of source indeterminacy has been the creation of mechanisms to ease the plaintiff's burden.⁸ Much of the law in this area has developed in the cases involving the synthetic hormone miscarriage preventative DES.⁹

Numerous cases filed in the 1970s against manufacturers of DES brought market share liability to center stage.¹⁰ From 1947 until 1971, millions of pregnant women took the drug as a miscarriage preventative.¹¹ From the beginning, the medical community raised serious questions about the safety and effectiveness of DES for preventing miscarriages.¹² The companies marketing, manufacturing, and distributing DES failed to test whether it affected fetuses in animals or humans, even though they specifically marketed DES for pregnancy use.¹³ According to two medical studies, it would have taken just six months for tests on mice to reveal the danger of cancer when the Page 788 offspring reached maturity.¹⁴ In 1971, the Federal Food and Drug Administration ("FDA") put an end to the use of DES for miscarriage prevention after scientists discovered that daughters of women who took DES during pregnancy had unusually high rates of certain rare forms of cervical and vaginal cancer.¹⁵ By the time of the FDA ban, as many as 300 companies had produced DES for sale.¹⁶

Many DES daughters seeking to recover compensation for their injuries faced a severe problem identifying the manufacturer or manufacturers of the DES consumed by their mothers.¹⁷ While all manufacturers produced DES according to substantially the same chemical formula, they sold it in a wide variety of forms.¹⁸ If the adverse effects of the drug had appeared quickly after use, conceivably many users would have been able to identify the manufacturer of the DES they consumed based on their recollection of the product's appearance or from records of their pharmacy's source of supply. Instead, the harm did not manifest itself for a generation.¹⁹

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A number of circumstances contributed to the barrier of establishing causation in fact in these cases.²⁰ By the time a DES daughter developed cancer or other reproductive system problems and identified DES as a likely cause, the chances of identifying a manufacturer were slim. Many mothers could no longer recall the brand or appearance of the drug they had consumed or even remember the pharmacy from which they had obtained it.²¹ If the mothers knew the pharmacy and it remained in business, the memories of the pharmacists who remained had faded, and their records had long since been destroyed or lost.²² Contributing to the lack of records is the fact that the manufacturers were not required by law to maintain records for long periods of time, and some of these manufacturers no longer existed.²³

Under these difficult circumstances, only a small minority of DES plaintiffs could identify the maker of the DES taken by their mothers. Faced with the possibility of leaving the majority of DES daughters without a remedy, theories of tort law had to evolve in order to provide redress. To date, the judicial response to this and related problems of source indeterminacy has been the creation of mechanisms to ease the plaintiff's burden of showing which particular defendant(s) caused the harm. This has most commonly been achieved by shifting to the defendant(s) the burden of proof of establishing non-causation. Much of the law in this area has developed in the DES cases. Its origin, however, is found in a lawsuit arising from a simple hunting accident.

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1. Alternative Liability

The modern origin of the burden-shifting approach to tortfeasor indeterminacy is found in Summers v. Tice,²⁴ a hunting accident case. The plaintiff was shot in the eye and in the lip from either of two guns fired negligently by two other hunters.²⁵ The negligence of the two hunters was in shooting at a form they thought to be lawful prey without first determining if it might be another hunter.²⁶ Understandably, the plaintiff could not prove by a preponderance of the evidence which of the two hunters actually injured him, as the most he could show was that it was equally likely that each was the source of that bullet.²⁷ The California Supreme Court was moved by its appreciation that the plaintiff ran the risk of not being able to recover for his proved harm, as well as the concomitant risk that two negligent hunters would not be held to account for their actions.²⁸

In its prominent opinion, the California Supreme Court devised alternative liability to solve the source indeterminacy of plaintiff's harm. As a matter of fairness, rather than foreclosing a potential recovery by the innocent plaintiff, the court required the defendants to prove that they did not cause the plaintiff's injury.²⁹ Underlying the court's decision were such factors as: (1) the plaintiff's inability, through no fault of his own, to identify the tortfeasor; (2) the joint culpability of the defendants, in...