Can a plaintiff who was injured by a drug given to her mother during pregnancy, but is unable to identify the specific manufacturer, successfully hold liable a company that produced the same drug using an identical formula?

Judith Sindell initiated a legal action against eleven drug companies on behalf of herself and similarly affected women. The case concerns diethylstilbesterol (DES), a synthetic estrogen given to pregnant women between 1941 and 1971 to prevent miscarriage. Sindell's mother took DES during pregnancy, resulting in Sindell developing a malignant bladder tumor and adenosis. DES was later found to cause cancerous vaginal and cervical growths in daughters exposed prenatally. Approximately 200 companies marketed the drug, making it impossible for Sindell to identify the specific manufacturer of the DES her mother took.

The case proceeded with five of the original defendants: Abbott Laboratories, Eli Lilly and Company, E.R. Squibb and Sons, the Upjohn Company, and Rexall Drug Company. Sindell's inability to pinpoint the exact manufacturer of the DES her mother consumed forms a central issue in the case.

Sindell initiated legal action by filing a complaint against eleven drug companies. The defendants responded by demurring to the complaint. The trial court sustained these demurrers without allowing Sindell to amend her complaint, citing her inability to identify which specific defendant had manufactured the drug that caused her injuries. As a result, the trial court dismissed the action. Sindell then appealed this dismissal. The case subsequently made its way through the appellate process, ultimately reaching the Supreme Court of California for review.

(Mosk, J.)

Yes. A plaintiff injured by a drug given to her mother during pregnancy can successfully hold liable a company that produced the same drug using an identical formula, even if unable to identify the specific manufacturer. The traditional requirement that a plaintiff identify the specific manufacturer whose product caused the injury is modified in cases involving fungible products manufactured by multiple companies. Market share liability applies when the plaintiff, through no fault of her own, cannot identify the specific manufacturer responsible for her injuries. Each defendant is held liable for the proportion of the judgment represented by its share of the market for the product, unless it can demonstrate it could not have made the product that caused the plaintiff's injuries. This approach balances the interests of injured plaintiffs and defendant manufacturers. As between an innocent plaintiff and negligent defendants, the defendants should bear the cost of injury. Manufacturers are in a better position to absorb and distribute such costs. Imposing liability creates an incentive for product safety and encourages companies to keep better records of product distribution. The inability to identify a specific manufacturer should not preclude recovery when the product itself is clearly the cause of harm. This theory of liability is particularly appropriate for mass-produced generic drugs, where the actions of all manufacturers contributed to the risk of harm. The market share approach provides a fair method of apportioning damages based on each defendant's contribution to the risk, while allowing defendants to exculpate themselves if they can prove they did not manufacture the product that caused a particular plaintiff's injury.

Concurrence (Bird, C.J.) Concurred with the majority opinion without providing a separate written opinion.

Concurrence (Newman, J.) Concurred with the majority opinion without providing a separate written opinion.

Concurrence (White, J.) Concurred with the majority opinion without providing a separate written opinion.

Dissent (Richardson, J.) The majority's decision abandons traditional tort principles and unfairly imposes liability on defendants who may not have caused the injury. This novel approach to liability could have far-reaching consequences, potentially inhibiting the research and development of new pharmaceutical drugs. The court's role is to interpret the law, not to create new theories of liability that deviate significantly from established legal doctrines. This decision sets a dangerous precedent that may discourage innovation in critical industries and expose manufacturers to unwarranted liability.

Dissent (Clark, J.) Dissented with the majority opinion without providing a separate written opinion.

Dissent (Manuel, J.) Dissented with the majority opinion without providing a separate written opinion.