Conley v. Boyle Drug Co.

• Decision Date: 01 November 1990
• Docket Number: No. 67626,67626
• Citation: 570 So.2d 275
• Parties: , 15 Fla. L. Weekly S570, Prod.Liab.Rep. (CCH) P 12,631 Terri Lynn CONLEY, Petitioner, Cross-Respondent, v. BOYLE DRUG COMPANY, etc., et al., Respondents, Cross-Petitioners.
• Court: Florida Supreme Court

Page 275

570 So.2d 275

59 USLW 2344, 15 Fla. L. Weekly S570,

Prod.Liab.Rep. (CCH) P 12,631

Terri Lynn CONLEY, Petitioner, Cross-Respondent, v. BOYLE DRUG COMPANY, etc., et al., Respondents, Cross-Petitioners.

No. 67626.

Supreme Court of Florida.

Nov. 1, 1990.

Rehearing Denied Jan. 9, 1991.

Dianne J. Weaver of Weaver, Weaver, Lardin & Petrie, P.A., and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for petitioner/cross-respondent.

James E. Tribble and Diane H. Tutt of Blackwell, Walker, Fascell & Hoehl, Miami, for Boyle Drug Co., Ortho Pharmaceutical Corp. and E.R. Squibb & Sons, Inc. and Sandoz, Inc.

Ted R. Manry, III of MacFarlane, Ferguson, Allison & Kelly, Tampa, for The Upjohn Co.

Hugh J. Turner, Jr. of Kelley, Drye & Warren, Miami, Russel H. Beatie, Jr. of The Law Offices of Russel H. Beatie, Jr., New York City, and Arthur J. England, Jr. of Fine, Jacobson, Schwartz, Nash, Block & England, Miami, for Eli Lilly and Co.

Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for Abbott Laboratories.

Richard A. Kupfer of Wagner, Nugent, Johnson, Roth, Romano, Eriksen & Kupfer, P.A., West Palm Beach, amici curiae, for The Ass'n of Trial Lawyers of America and The Academy of Florida Trial Lawyers.

Jack W. Shaw, Jr. of Mathews, Osborne, McNatt & Cobb, P.A., Jacksonville, amicus curiae, for Florida Defense Lawyers Ass'n.

EHRLICH, Justice.

We have for review Conley v. Boyle Drug Co., 477 So.2d 600 (Fla. 4th DCA 1985), in which the district court certified the following question as being of great public importance:

DOES FLORIDA RECOGNIZE A CAUSE OF ACTION AGAINST A DEFENDANT FOR MARKETING DEFECTIVE DES WHEN THE PLAINTIFF ADMITTEDLY CANNOT ESTABLISH THAT A PARTICULAR DEFENDANT WAS RESPONSIBLE FOR THE INJURY?

Id. at 607-08. We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and answer the question as restated below in the affirmative:

DOES FLORIDA RECOGNIZE A CAUSE OF ACTION AGAINST A DEFENDANT FOR NEGLIGENTLY MANUFACTURING AND MARKETING DES OF THE TYPE WHICH CAUSED A PLAINTIFF'S INJURY WHEN THE PLAINTIFF AFTER A REASONABLE EFFORT IS UNABLE TO ESTABLISH THAT A PARTICULAR DEFENDANT WAS RESPONSIBLE FOR THE INJURY?

In 1977, Terri Lynn Conley, a Florida resident, was diagnosed as suffering from cervical adenosis, a precancerous growth, and underwent surgery for the removal of most of her cervix, and other precancerous and cancerous tumors. Ms. Conley filed suit against eleven defendants who manufactured and marketed the drug diethylstilbestrol (DES) between 1941, the year the FDA authorized the marketing of DES, ¹ and the present. The action was based upon theories of negligence, strict liability, breach of warranty and fraud.

Ms. Conley alleged that while she was in utero, during a period between June 1955 and March 1956, her mother was administered DES while in Broward County, Florida, and that her cancer was linked to her mother's ingestion of the drug. She also alleged that the named defendants were the manufacturers of a substantial share of the drug which caused her injury and that the named defendants knew or should have known of the danger the cancer-causing agent contained in the drug presented to unborn children, but failed to warn of this danger. Ms. Conley further alleged that, through no fault of her own, she was unable to identify the manufacturer of the DES ingested by her mother.

In an attempt to state a cause of action despite her inability to identify the specific manufacturer, Ms. Conley urged four theories of liability which relax the traditional requirement of tort law that a plaintiff must identify a specific tortfeasor as causing her injury. The four theories are alternative liability, concert of action, enterprise liability, and the market share theory of liability. The trial court granted various motions to dismiss and motions for judgment on the pleadings because of Ms. Conley's inability to identify the specific manufacturer of the drug. On appeal, the district court affirmed the trial court's rulings, stating that "[w]hile this court sympathizes with Ms. Conley, we must conclude that we have no authority to approve a theory of liability which does not require her to pinpoint the specific defendant that caused her injury." Id. at 602.

The common problem facing plaintiffs alleging injury by in utero exposure to DES is the inability to identify the precise manufacturer or distributor of the DES taken by the plaintiff's mother decades before the injury manifests itself. The generic nature of the DES marketed for use in preventing miscarriages, the number of producers or distributors of the drug, ² the lack of pertinent records and the passage of time are factors which contribute to the identification problem. See Collins v. Eli Lilly Co., 116 Wis.2d 166, 176-81, 342 N.W.2d 37, 42-45, cert. denied, 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984). Until recently, a clear majority of courts have dismissed an action when the plaintiff was unable to identify the manufacturer of the DES which caused her injury. ³ Since 1980, a growing number of courts have permitted such an action to continue either by applying accepted theories of liability or by formulating new theories. ⁴

In Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.1985), this Court was asked to adopt the best known of these theories, the Sindell ⁵ market share theory of liability, in an asbestos case. However, we declined to do so, finding that "market share theory [was] an inappropriate vehicle with which to apportion liability for the asbestos-related injury in [that] cause." 471 So.2d at 537. Our holding was based primarily upon the fact that Copeland was able to identify several of the manufacturers of the products to which he was exposed. ⁶ Recognizing that "[t]he market share theory of liability was developed to provide a remedy where there is an inherent inability to identify the manufacturer of the product that caused the injury," we concluded that Celotex was an inappropriate case in which to determine whether such a theory of liability should be adopted in Florida. Id. Both the district court and the petitioner urge that this is an appropriate case for the adoption of a modified theory of market share liability.

In certifying the question before us, the district court has given us the benefit of its observations on the subject. ⁷ The district court considered and rejected each of the theories of liability which were proposed by Ms. Conley, concluding that none of them was properly tailored for application in this case. 477 So.2d at 602-05. Recognizing that "traditional theories of tort law are inadequate to redress the appellant's injuries," id. at 602, the district court suggests that the identification requirement be relaxed in a situation such as that before us. The district court urges this Court to adopt, with some alterations, the "market-share alternate liability" theory adopted by the Washington Supreme Court in Martin v. Abbott Laboratories, 102 Wash.2d 581, 602, 689 P.2d 368, 381 (1984). 477 So.2d at 605-06.

Ms. Conley agrees with the district court that the market-share alternate theory of liability is best suited to Florida's "developing products liability law" and urges its adoption, as modified by the district court. However, as she did before the district court, Ms. Conley also offers the theories of alternative liability, concert of action, enterprise liability, and the Sindell market share theory of liability for our consideration. We agree with the district court's analysis and rejection of each of these theories. 477 So.2d at 602-05. We therefore focus our discussion on the district court's proposed theory of liability.

After discussing the various theories of liability employed by other jurisdictions, the district court concluded that the market-share alternate liability theory adopted by the Washington Supreme Court in Martin should be adopted in Florida. The Martin court, as did the district court below, rejected the four theories of liability commonly raised in DES cases, opting for a modified version of the market share theory of liability first announced by the California Supreme Court in Sindell.

Sindell also involved an action brought against manufacturers of DES in which the plaintiff was unable to identify the manufacturer of the precise DES ingested by her mother. The market share theory of liability as formulated in Sindell is a modification of the alternative liability theory (also referred to by the Martin court as alternate liability theory) first introduced by the California Supreme Court in Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), and later set forth in section 433B(3) of the Restatement (Second) of Torts (1965). Sindell, 26 Cal.3d at 611, 607 P.2d at 936, 163 Cal.Rptr. at 144.

The theory of alternative liability applies where the conduct of two or more actors is tortious, and it is proved that the injury to the plaintiff was caused by only one of them, but there is uncertainty as to which one actually caused it. Under these circumstances, the burden is placed upon each of the negligent actors to prove that he did not cause the plaintiff's injury. Defendants unable to meet the burden are held jointly and severally liable. Restatement (Second) of Torts § 433B(3). This theory of liability is based on a policy determination that an innocent plaintiff should not be without a remedy because he is unable to prove which of the negligent defendants caused his injuries. Summers, 33 Cal.2d at 86-88, 199 P.2d at 4-5.

Although the Sindell court found the Summers rule inapplicable in a DES case in which all possible manufacturers of the drug in question are not joined, it used that theory of liability as a foundation for formulating its market share theory. Under the Sindell approach, the plaintiff need only show that her condition was caused by the drug DES and that those companies joined as defendants produced a...