Market Share Liability in DES Cases: The Unwarranted Erosion of Causation in Fact

In the final analysis, the legislature, and not the court, is the appropriate forum for determining whether to adopt or reject market share liability

image of Hand-of-Justice
The Article concludes that market share liability is an unsound concept, that it represents too wide a leap in our tort principles, and that the abrogation of such a fundamental tort requirement is unwarranted. Hand of Justice.

Introduction

DePaul Law Review,
David M. Schultz,
Volume 40, Article 5,
Issue 3 Spring 1991.

As our society progresses in complexity, theories of tort law have evolved in order to provide redress for the harms caused in a changing world. Tort law evolution has resulted in the creation of new remedies and, in many instances, the erosion of certain preconditions for recovery in tort. Nevertheless, with limited exceptions, there has not been significant erosion of the requirement that a plaintiff must first be able to identify the person or entity that caused her injury before she can recover in tort. In the past decade, however, a small number of courts have abrogated this principle, which is referred to as “causation in fact.” In the place of causation of fact, these courts have adopted the concept of “market share liability.

The market share liability theory has developed mainly through lawsuits filed by women who claim to suffer injuries resulting from their mothers ingestion of the drug Diethylstilbestrol (DES) while pregnant. These plaintiffs are commonly referred to as the “DES daughters.” The time that passes between the maternal ingestion of DES and the diagnosis of the injuries is generally twenty or more years because the injuries do not manifest themselves until sometime after the daughter has reached puberty. A DES daughter is often unable to identify the specific manufacturer of the drug her mother took for two key reasons: the long passage of time and the fungible nature of DES. Faced with the possibility of leaving these plaintiffs without a remedy as a result of their inability to identify the manufacturer, some courts have instead abolished the traditional requirement of establishing causation in fact. In place of causation in fact, these courts have adopted a theory that imposes liability upon any defendant who participated in the manufacturing or marketing of DES in the relevant market. Under this “market share liability” theory, each defendant is liable for the proportion of the judgment that its share of the market represented during the relevant time period.

Market share liability is a flawed concept that likely will apply only to a narrow class of plaintiffs and defendants.

Market share liability has been controversial since its inception. The concept has been adopted with varying modifications by a handful of courts and promoted by a larger number of legal commentators. At the same time, other courts have denounced the theory of market share liability when faced with the opportunity to adopt the proposition in either DES cases or cases involving other products. Currently, only nine state supreme courts have addressed the market share liability issue in a DES case. Most likely, however, other jurisdictions will eventually be forced to face this issue, especially in light of the fact that DES was used nationwide, some plaintiffs have achieved success with the theory, and there is the potential for large recoveries.

Most legal commentary on the issue of market share liability has supported the adoption of the theory. Commentators and courts that support the market share liability theory correctly argue that there is a need to adapt our existing tort law in the face of progress. They also argue that there is strong emotional appeal to insure a remedy for all plaintiffs, especially plaintiffs who are innocent of any wrongdoing. However, this Article contends that courts should not develop a market share liability concept.

  1. This Article begins with a brief history of the development of the drug DES.
  2. In the next section, this Article reviews the tort requirement of causation in fact.
  3. The third section outlines the DES cases in which state supreme courts have adopted market share liability,
  4. and the fourth section addresses cases where courts have rejected the theory in the DES context and in other actions.

Some DES plaintiffs have been able to establish the identity of the specific manufacturer, while others will be able to establish enough evidence to proceed to trial on the issues of causation in fact or negligence.

The Article concludes that market share liability is an unsound concept, that it represents too wide a leap in our tort principles, and that the abrogation of such a fundamental tort requirement is unwarranted. Two ideas are presented to support this conclusion.

  1. First, there is insufficient data to accurately develop the required market shares for each of the hundreds of pharmaceutical companies that produced DES. This lack of data precludes the fair allocation of liability for DES related injuries among all DES manufacturers.
  2. Second, upon close scrutiny, the underlying policies offered to justify adoption of the market share liability theory are either not achieved by the theory, and even if they can be achieved, they do not provide sufficient reasons to adopt it.

This Article proposes that the judicial development of market share liability involves making public policy determinations that more appropriately should be left for state legislatures. A legislative response, similar to the federal legislation established to compensate persons injured by childhood vaccines such as the diphtheria, pertussis, and tetanus (“DPT”) vaccine is a proper method of compensation, and one that will not require a radical change in a state’s tort law.

More DES DiEthylStilbestrol Resources

Increased risk of profound weight loss among women exposed to diethylstilbestrol in utero

DES and anorexia, Behavioral and neural biology, 1991

image of anorexia
DiEthylStilbestrol usage review buttress the need for adequate and rigorous research into the use of drugs in pregnancy and ensure that they do more good than harm before being introduced for consumption. anorexia

1991 Study Abstract

We surveyed 1711 women exposed to diethylstilbestrol in utero, and 919 women not exposed, concerning lifetime weight loss histories.

The prevalence of a history of unexplained profoundly low body weight (weight less than or equal to 80% of expected weight for age, sex, and height)

  • was 18.7 per 1000 in the exposed group
  • compared to 3.3 per 1000 in the unexposed group;
  • a 5.72 to 1 ratio of increased risk.
Sources and more information
  • Increased risk of profound weight loss among women exposed to diethylstilbestrol in utero, Behavioral and neural biology, NCBI PMID: 2059190, 1991 May.
More DES DiEthylStilbestrol Resources

Refocusing on the gynecological and obstetrical consequences of intrauterine exposure to DES

Full examination of the DES-exposed pregnant patients is advised, including colposcopy and hysterosalpingography

DiEthylStilbestrol usage review buttress the need for adequate and rigorous research into the use of drugs in pregnancy and ensure that they do more good than harm before being introduced for consumption

1991 Study Abstract

The oncological and obstetrical follow-up is described of 321 patients who presented between 1981 and 1988 in the St Radboud Hospital with a history of intrauterine diethylstilbestrol(DES) exposure.

In 45 out of 321 cases cytological abnormalities were found including 20 cases of cervical intraepithelial neoplasia (CIN). No relation could be established between CIN and the extension of the cervical adenosis.

  • 22% of 87 evaluable pregnancies terminated in spontaneous abortion,
  • 13% of the patients delivered immaturely
  • and 27% prematurely.

These percentages were significantly higher than in the rest of the hospital population. The consequences of intrauterine exposure to DES are discussed.

Full examination of the patients is advised, including colposcopy and hysterosalpingography. If abnormalities are present it is advised to offer a timely cerclage in case of pregnancy.

Sources and more information
  • Refocusing on the gynecological and obstetrical consequences of intrauterine exposure to diethylstilbestrol (DES)., Nederlands tijdschrift voor geneeskunde, 1991 Jan 19;135(3):89-93., NCBI PMID: 1996166.
More DES DiEthylStilbestrol Resources

Hormonal contributions to sexually dimorphic behavioral development in humans

DES-exposed male subjects appeared to be feminized and/or demasculinized

image of dancing-statues
This 1991 study confirms that DES-exposed male subjects appeared to be feminized and/or demasculinized, and there is some evidence that exposed female subjects were masculinized. Dancing statues image by Dixie Lawrence.

1991 Study Abstract

Nineteen studies on the behavioral effects of prenatal exposure to hormones administered for the treatment of at-risk human pregnancy are reviewed. Because the role of prenatal exposure to hormones in the development of human behavioral sex differences is potentially confounded by society’s differential treatment of the sexes, comparisons between exposed and unexposed subjects were evaluated and summarized separately for male and female subjects.

Therefore, this review focuses on data for individuals whose prenatal hormone environments were atypical relative to what is normal for their own sex. Overall, it appears that prenatal exposure to androgen-based synthetic progestin exerted a masculinizing and/or defeminizing influence on human behavioral development, whereas prenatal exposure to natural progesterone and progesterone-based synthetic progestin had a feminizing and/or demasculinizing influence, particularly among female subjects.

The data on prenatal exposure to synthetic estrogen derive primarily from subjects exposed to diethylstibestrol (DES). DES-exposed male subjects appeared to be feminized and/or demasculinized, and there is some evidence that exposed female subjects were masculinized. These findings are discussed in the context of prenatal hormonal contributions to sexually dimorphic behavioral development both within and between the sexes. Recommendations for the conduct of future research in developmental behavioral endocrinology are presented.

Sources and more information
  • Hormonal contributions to sexually dimorphic behavioral development in humans, Reinisch JM1, Ziemba-Davis M, Sanders SA, Psychoneuroendocrinology. 1991;16(1-3):213-78., NCBI PMID: 1961841, 1991.
More DES DiEthylStilbestrol Resources

Preconception tort liability: recognizing a strict liability cause of action for DES GrandChildren

Courts should recognize the validity of preconception tort liability and allow a strict liability cause of action in third-generation DES cases

Abstract:

image of PubMed NCBI The Endocrine Society logo
This 1991 Note addresses the validity of preconception tort liability in the context of third-generation DES cases.

DES cases are breaking new ground in tort litigation. In March 1990, J. David Roberts filed a $ 2,000,000 lawsuit in the United States District Court for the District of Columbia against drug manufacturer Eli Lilly and Company,  alleging that his in utero exposure to DES caused his daughter’s cancer.  Roberts sued under theories of strict liability, emotional distress, breach of warranty, negligence and misrepresentation. He also alleged that DES manufacturers conspired to produce the drug after they knew of its dangers.

Over the past decade more than 1,000 “DES daughters” have filed lawsuits against the manufacturers of DES, alleging that their in utero exposure to the drug caused various reproductive tract abnormalities, including cancer. Plaintiffs now allege that their grandmothers’ use of DES during pregnancy caused genetic damage leading to cancer in third generations. This Note addresses the validity of preconception tort liability in the context of third-generation DES cases. Plaintiffs in preconception tort liability cases have sought recovery under both negligence and strict liability causes of action. Courts should recognize the validity of preconception tort liability and allow a strict liability cause of action in third-generation cases.

Sources

  • Preconception tort liability: recognizing a strict liability cause of action for DES grandchildren, NCBI, PMID: 1812769, 1991;17(4):435-55. LexisNexis, Excerpt, 1991.
More DES DiEthylStilbestrol Resources