Conley v. Boyle Drug Co.

• Decision Date: 28 August 1985
• Docket Number: No. 83-1559,83-2091,83-1559
• Parties: 10 Fla. L. Weekly 2038, Prod.Liab.Rep. (CCH) P 10,681 Terry Lynn CONLEY, Appellant, v. BOYLE DRUG COMPANY, etc., et al., Appellees. Terry Lynn CONLEY, Appellant/Cross Appellee, v. BOYLE DRUG COMPANY, etc., et al., Appellees/Cross Appellants.
• Court: Florida District Court of Appeals

Page 600

477 So.2d 600

10 Fla. L. Weekly 2038, Prod.Liab.Rep. (CCH) P 10,681

Terry Lynn CONLEY, Appellant, v. BOYLE DRUG COMPANY, etc., et al., Appellees.

Terry Lynn CONLEY, Appellant/Cross Appellee, v. BOYLE DRUG COMPANY, etc., et al., Appellees/Cross Appellants.

No. 83-1559, 83-2091.

District Court of Appeal of Florida Fourth District.

Aug. 28, 1985.

Rehearing Denied Nov. 18, 1985.

Dianne J. Weaver of Weaver, Weaver & Lardin, P.A., and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for Terry Lynn Conley.

James E. Tribble and Diane H. Tutt of Blackwell Walker Gray Powers Flick & Hoehl, Miami, for appellees/cross appellants Boyle Drug Co. and Ortho Pharmaceutical Corp. and appellees E.R. Squibb & Sons, Inc. and Sandoz, Inc.

Robert F. Jordan of Conrad, Scherer & James, Fort Lauderdale, for appellee Rexall Drug Co.

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

David J. Kadyk and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee Upjohn Co.

Hugh J. Turner, Jr. of Smathers & Thompson, Miami, and Russel H. Beatie, Jr., and Sanford N. Berland of Law Offices of Russel H. Beatie, Jr., New York City, for appellee Eli Lilly and Co.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for amicus curiae Academy of Florida Trial Lawyers.

Jack W. Shaw, Jr., of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for amicus curiae Florida Defense Lawyers Assn.

ANSTEAD, Judge.

The issue presented in this appeal is whether the appellant, Terry Lynn Conley, who was allegedly injured as a result of the ingestion by her mother of the drug diethylstilbestrol (DES), may state a cause of action against numerous DES manufacturers even though she is admittedly unable to identify the specific manufacturer of the drug her mother ingested.

Ms. Conley filed an action against eleven defendants who manufactured the drug DES in 1955-56 and prior thereto. The action alleges that in 1955-56, before Ms. Conley was born and while she was still in the fetal stage, her mother was given DES. Ms. Conley alleges that her mother was administered the drug in Broward County, Florida. Years later Ms. Conley, who is also a Florida resident, was diagnosed as suffering from cervical adenosis and underwent surgery for the removal of most of her cervix as well as other precancerous and cancerous lesions and tumors. She alleged that her cancer is linked to the ingestion of the DES by her mother and that the drug was defective by reason of the cancer-causing agent it contained and the danger that agent presented to unborn children. She also alleged that she was unable to identify the manufacturer of the DES ingested by her mother. The trial court granted various motions to dismiss and motions for judgment on the pleadings because Ms. Conley was admittedly unable to identify the specific manufacturer of the In an effort to state a cause of action Ms. Conley has suggested four theories of liability, none of which have yet been approved by the Florida Supreme Court. ¹ Under traditional tort law long recognized in Florida, failure to allege legal causation by identifying the specific tortfeasors precludes recovery. ² It is established law in Florida that district courts of appeal may advocate changes in the law and state their reasons for advocating change, but, nevertheless, they are bound to follow the case law set forth by the supreme court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We do so here. While 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.

drug her mother ingested. The only issue which Ms. Conley raises on appeal is whether she must allege the identity of the specific manufacturer of the drug in order to state a cause of action.

While we recognize that the status of tort law in Florida precludes us from approving a new theory of liability, we must also recognize Florida's constitutional mandate that for every wrong there is a remedy. Art. I, § 21, Fla. Const. This constitutional "guarantee" of a remedy is particularly compelling when the magnitude of the harm is great and the claimant is innocent of any conduct contributing to the injury. Here the consequences of the alleged drug defect are particularly devastating because the resulting cancer is life-threatening and the victim is not the direct consumer of the drug, but rather the consumer's off-spring. The circumstances are also unique in that the ill effects of the drug did not manifest themselves for years, thereby compounding the problem of identification of the particular manufacturer. Thus, in our view, if appellant's allegations are accepted as true, it is clear that traditional theories of tort law are inadequate to redress the appellant's injuries, primarily because of the requirement of identifying the specific wrongdoer. Someone has to pay. Is it to be the admittedly blameless child whose similarly innocent mother ingested the allegedly defective drug? Surely it is more appropriate that the producers of the drug, those who derive profit from its distribution, bear and share the risk of injury from its defects. Because of our concern for the apparent lack of a remedy for a grievous wrong, we would like to add our own observations to the debate as to whether the requirement for identifying the wrongdoer should be relaxed.

SINDELL

In Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980), the California Supreme Court specifically addressed the problem of stating a cause of action in a DES case similar to the one involved herein. The court rejected three of the four theories also suggested by the appellant here, but ultimately adopted a novel market share theory of liability. The court summarized the same four theories advanced by the appellant herein, in the following manner.

ALTERNATIVE LIABILITY

This theory has been codified in Restatement (Second) of Torts § 433(B)(3) which provides Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

This section is a codification of the ruling in Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). There the plaintiff was injured when two hunters negligently shot in his direction. It could not be determined which of the hunters fired the shot which injured the plaintiff. Both defendants were held liable on the theory that both were negligent toward the plaintiff and the court shifted the burden to the defendants to absolve themselves. No Florida court as yet has accepted the alternative liability theory. In part this is due to the fact that the theory necessarily imposes liability upon defendants who are not in fact the cause of the plaintiff's injury simply because they may not be able to establish their blamelessness.

CONCERT OF ACTION

The elements of this doctrine are prescribed in Restatement of Torts § 876. The section provides:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he a) does a tortious act in concert with the other or pursuant to a common design with him, or b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself, or c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

Some courts have utilized this theory in DES cases with a certain modification of the theory. In Bichler v. Eli Lilly & Co., 79 A.D.2d 317, 436 N.Y.S.2d 625 (1981), the court allowed a limited expansion of the doctrine of concerted action because it found that there was evidence of "conscious parallel activity by the drug companies in seeking FDA approval of DES ... evidence from which may be inferred a tacit understanding."

One of the criticisms of the concert of action theory is that the formula for DES is a scientific constant. It is set forth in the U.S. Pharmacopoeia and manufacturers must utilize the formula. As the court stated in Sindell when analyzing and rejecting this theory:

What the complaint appears to charge is defendants' parallel or imitative conduct in that they relied upon each others' testing and promotion methods. But such conduct described a common practice in industry: a producer avails himself of the experience and methods of others making the same or similar products. Application of the concept of concert of action to this situation would expand the doctrine far beyond its intended scope and would render virtually any manufacturer liable for the defective products of an entire industry, even if it could be demonstrated that the product which caused the injury was not made by the defendant.

607 P.2d at 933, 163 Cal.Rptr. at 141. The federal district court also rejected this theory on the same grounds in Payton v. Abbott Laboratories, 512 F.Supp. 1031 (D.Mass.1981).

ENTERPRISE LIABILITY

The Restatement (Second) of Torts § 433(B)(3) is the basis for the theory of enterprise liability. The concept derives from the decision of Hall v. E.I. DuPont de Nemours & Co., 345 F.Supp. 353 (E.D.N.Y.1972). There the plaintiffs were 13 children who were injured by the faulty explosion of blasting caps in 12 separate incidents. The defendants were six blasting cap manufacturers who comprised most of the industry in the United States. The plaintiffs were unable to identify the particular manufacturer of the cap which caused the injuries. The court noted that the plaintiffs could...