Document QNz0xyV7oXkjbDx5KdLYDZBk
indemnity against those other producers of DES." defendant may be either insolvent or not amenable
Kroll. Intraindustry Joint Liability, Ins L J185,194 to process. Under the majority's theory, plaintiffs
(Apr 1980).
who wholly fail to prove any causation are rewarded by being offered a wider selection of defendants and
Basic Unfairness Of Theory
a greater opportunity for recovery. Not only are the plaintiffs relieved of matching the conduct of a
Justice Richardson's dissenting opinion further particular defendant to their injury, but the major
highlighted some of the problems inherent in the ity "sprinkles the rain of liability upon all the joined
Sindell majority opinion. He viewed the market defendants." 607 P2d at 939 Additionally, market
share theory as basically unfair to some defendants share liability will fall disproportionately on those
who may have had nothing whatsoever to do with defendants amenable to suit in California.
causing an alleged injury. Not only did the major
Finally, the dissent recognized the injury
ity's theory shift the burden of proof to the defen threatened to the public's interest in continued
dant, but it effectively guaranteed that the plaintiffs basic medical research. The opinion noted that
would prevail on the causation issue because the Comment k to 402A "implicitly recognizes the
defendants are no more capable of disproving cau social policy behind the development of new phar
sation than plaintiffs are ofproving it. Furthermore, maceutical preparations." 607 P2d at 941 Justice
the plaintiff can recover from a small number of Richardson asked:
defendants -- each of whom individually may ac Must a drug manufacturer to escape this blanket
count for only a small share of the market--so long liability wait for a generation of testing before it
as the aggregate business of those defendants is may disseminate drugs? If a drug has beneficial
substantial. According to the dissent's analysis of purposes for the majority of users but harmful
this point:
side-effects are later revealed for a small fraction
In other words, a particular defendant may be held proportionately liable even though mathematically it is much more likely than not that it played no role whatever in causing plain tiff's injuries. 607 P2d at 939
The majority give no guidance as to what consti tutes a "substantial" share of the relevant market, although it indicates that the percentage need not be as great as 75 per cent.
The court has revised the requirements of a products liability action, leavingpractical questions unanswered.
The dissent criticized the violence done to
traditional tort principles by the drastic expansion of consumers will the manufacturer be absolutely
of liability:
liable? If adverse medical consequences wholly
The majority now expressly abandons unknown to the most careful and meticulous of
the ... traditional requirement of some causal present scientists, surface in two or three genera
connection between defendants' act and plain tions, will similar liability be imposed? 607 P2d at
tiffs' injury in the creation'of its new modified 942
industry-wide tort. Conceptually, the doctrine of Justice Richardson concluded that the majority's
absolute liability which heretofore in negligence decision effectively makes the drug industry an
law has substituted only for the requirement of a insurer of all injuries attributable to drugs of
breach of defendant's duty of care, under the unprovable origin.
majority's hand now subsumes the additional
necessity of a causal relationship. 607 P2d at 939
Under the majority's new theory, a defendant may Economic and Practical Effects
be held liable if he happens to be involved in a
Serious economic effects can also be antici
similar business and if causation is possible, even pated. When a manufacturer prices a product, it
though remote.
may now have to consider the liability it may incur
Furthermore, under market share liability, an for a defective product manufactured by another.
unwarranted preference is created for a particular Insurers of product manufacturers will be faced
class of plaintiffs. In the ordinary tort case the with answering for the tortious conduct of com-
FOR THE DEFENSE__ A___ OCTOBER 1980 21
8092 0620
PRODUCED 6YFOfcD