Brown v. Superior Court, No. S

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; LUCAS
• Citation: 44 Cal.3d 1049,751 P.2d 470,245 Cal.Rptr. 412
• Parties: , 751 P.2d 470, 56 USLW 2582, Prod.Liab.Rep. (CCH) P 11,734 Jan BROWN et al., Petitioners, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; ABBOTT LABORATORIES et al., Real Parties in Interest. * F. 25059.
• Decision Date: 31 March 1988
• Docket Number: No. S

Page 412

245 Cal.Rptr. 412 44 Cal.3d 1049, 751 P.2d 470, 56 USLW 2582, Prod.Liab.Rep. (CCH) P 11,734 Jan BROWN et al., Petitioners,
v.
The SUPERIOR COURT of the City and County of San Francisco, Respondent;
ABBOTT LABORATORIES et al., Real Parties in Interest. [And 68 other cases.] ^* No. S.F. 25059. Supreme Court of California. March 31, 1988.
Rehearing Denied May 4, 1988.

[44 Cal.3d 1054]

Page 414

[751 P.2d 472] LeRoy Hersh, Nancy Hersh, Wes Wagnor, Dan Bolton and Hersh & Hersh, San Francisco, for petitioners.

Robert S. Schlifkin, Steven J. Kleifield, Schlifkin & Papell, Los Angeles, Gerald C. Sterns, Wilda L. White and Sterns, Walker & Grell, San Francisco, as amici curiae on behalf of petitioners.

No appearance for respondent.

Gudmundson, Siggins & Stone, William S. Ginsburg, Crosby, Heafey, Roach & May, Richard J. Heafey, Peter W. Davis, James C. Martin, Oakland, Tarkington, O'Connor & O'Neill, John D. O'Connor, Patrick J. Hogan, San Francisco, Adams, Duque & Hazeltine, Los Angeles, Robert D. Phillips, Jr., San Francisco, Richard T. Davis, Jr., Los Angeles, Boornazian, Jensen & Garthe, Norman La Force, Sedgwick, Detert, Moran & Arnold, Michael F. Healy, Kevin J. Dunne, Bronson, Bronson & McKinnon, Charles F. Preuss, Peter B. Logan, San Francisco, Haight, Dickson, Brown & Bonesteel, Robert L. Dickson, Ralph A. Campillo, Robert L. Kaufman and David J. Fleming, Santa Monica, for real parties in interest.

David G. Owen as amicus curiae.

[751 P.2d 473] MOSK, Justice.

In current litigation several significant issues have arisen relating to the liability of manufacturers of prescription drugs for injuries caused by their products. Our first and broadest inquiry is whether such a manufacturer may be held strictly liable for a product that is defective in design. The remaining questions relate to the scope of liability of producers of diethylstilbestrol (DES) under the market share theory enunciated in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (hereafter Sindell ). Specifically, we shall determine whether a plaintiff who proceeds under that theory may base her action on fraud or breach of warranty, and whether the manufacturers joined in the action are jointly and severally liable for any damages that may be awarded, or whether their liability is confined to their share of the relevant market for DES.

A number of plaintiffs filed actions in the San Francisco Superior Court against numerous drug manufacturers which allegedly produced DES, a substance plaintiffs claimed was used by their mothers to prevent [44 Cal.3d 1055] miscarriage. They alleged that the drug was defective and they were injured in utero when their mothers ingested it. The cases raised several common issues and, in order to facilitate their resolution and conserve judicial resources, the presiding judge, pursuant to a procedure recommended by the Judicial Council, designated the actions as "complex litigation." (Cal.Standards Jud.Admin., § 19 [Deering's Cal.Ann.Codes, Rules (Appen.) (1987 pocket supp.) p. 199].)

Each case was assigned its own number and had an independent existence, but the court's pretrial rulings on the law were made in a separate case with a separate number (830-109), and were to be binding on the other actions. At least 69 cases are involved. Under the court's order, additional cases may be governed by its rulings if actions subsequently filed present the same issues. The proceeding before us involves a series of pretrial rulings in case 830-109.

A typical complaint in the complex litigation names 170 or more drug companies as defendants. It is alleged that they manufactured DES from the same formula, and that the drug was unsafe for use in preventing miscarriage and resulted in severe injury to plaintiff. Defendants knew that the drug contained a cancer-causing substance, yet they failed to warn users or their physicians of these dangerous characteristics. Plaintiff seeks to hold defendants

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liable on theories of strict liability, breach of express and implied warranty, fraud, and negligence. In the event plaintiff is unable to identify the manufacturer of the specific brand of DES that caused her injuries, she seeks to hold liable "those defendant manufacturers who manufactured a substantial share of the appropriate market for said drug."

The trial court made pretrial rulings in favor of defendants on the issues stated above. That is, it determined that defendants could not be held strictly liable for the alleged defect in DES but only for their failure to warn of known or knowable side effects of the drug. It held further that neither breach of warranty nor fraud will lie in an action based on the market share theory of Sindell. Finally, the court ruled that defendants could not be held jointly and severally liable for the entire amount of the judgment if plaintiff prevails in the action, but that each defendant would be liable only for the proportion of the amount awarded that represented its share of the appropriate DES market.

Plaintiff sought a writ of mandate or prohibition in the Court of Appeal to review the foregoing rulings. That court issued an alternative writ and, after considering the issues, upheld the trial court's determination and denied a peremptory writ. We granted review to examine the conclusions of the Court of Appeal and its potential conflict with Kearl v. Lederle [44 Cal.3d 1056] Laboratories (1985) 172 Cal.App.3d 812, 218 Cal.Rptr. 453, on the issue of strict liability of a drug manufacturer for a defect in the design of a prescription drug.

I. Strict Liability

A. Strict Liability in General

The doctrine of strict liability had its genesis in a concurring opinion by Justice Roger Traynor in Escola v. Coca Cola Bottling[751 P.2d 474] Co. (1944) 24 Cal.2d 453, 461, 150 P.2d 436. He suggested that a manufacturer should be absolutely liable if, in placing a product on the market, it knew the product was to be used without inspection, and it proved to have a defect that caused injury. The policy considerations underlying this suggestion were that the manufacturer, unlike the public, can anticipate or guard against the recurrence of hazards, that the cost of injury may be an overwhelming misfortune to the person injured whereas the manufacturer can insure against the risk and distribute the cost among the consuming public, and that it is in the public interest to discourage the marketing of defective products. This court unanimously adopted Justice Traynor's concept in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897, holding a manufacturer strictly liable in tort and using the formulation of the doctrine set forth in Escola.

Strict liability differs from negligence in that it eliminates the necessity for the injured party to prove that the manufacturer of the product which caused injury was negligent. It focusses not on the conduct of the manufacturer but on the product itself, and holds the manufacturer liable if the product was defective.

In 1965, soon after our decision in Greenman, the Restatement Second of Torts published section 402A, which set forth the strict liability doctrine (hereinafter section 402A). ¹ Almost all states have adopted some form of strict liability since that time. (Prosser & Keeton on Torts (5th ed. 1984) § 99, p. 694.)

[44 Cal.3d 1057] This court refined and explained application of the principle in Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, and Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413,

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143 Cal.Rptr. 225, 573 P.2d 443 (hereafter Barker ). In Cronin, we rejected the requirement of section 402A that the defect in a product must be "unreasonably dangerous" to the consumer in order to invoke strict liability, holding that the requirement "rings of negligence" (8 Cal.3d at p. 132, 104 Cal.Rptr. 433, 501 P.2d 1153) and that the showing of a defect which proximately caused injury is sufficient to justify application of the doctrine.

Barker defined the term "design defect" in the context of strict liability. In that case the plaintiff was injured while operating a piece of heavy construction equipment, and claimed that a safety device called an "outrigger" would have prevented the accident. We held that the defendant could be held liable for a defect in design.

Barker identified three types of product defects. (20 Cal.3d at p. 428, 143 Cal.Rptr. 225, 573 P.2d 443.) First, there may be a flaw in the manufacturing process, resulting in a product that differs from the manufacturer's intended result. The archetypal example of such a defect was involved in Escola, supra, 24 Cal.2d 453, 150 P.2d 436, a Coca Cola bottle that exploded. Such a manufacturing defect did not exist in the heavy equipment that caused the injury in Barker, and is not alleged in the present case.

Second, there are products which are "perfectly" manufactured but are unsafe because of the absence of a safety device, i.e., a defect in design. This was the defect alleged in Barker. It held that a product is defectively designed if it failed to perform as safely as an ordinary consumer would expect when used as intended or reasonably foreseeable, or if, on balance, the risk of danger inherent in the challenged design outweighs the benefits of the design. (20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443.) Plaintiff asserts this test should be applied in the present case because DES contained a design defect.

[751 P.2d 475] The third type of defect identified in Barker is a product that is dangerous because it lacks adequate warnings or instructions. According to plaintiff, defendants here failed to warn of the dangers inherent in the use of DES. We are concerned, therefore, with the second and third types of defects described in Barker.

B. Strict Liability and Prescription Drugs

Even before Greenman was decided, the members...