McCormack v. Abbott Laboratories
Decision Date | 30 September 1985 |
Docket Number | Civ. A. No. 76-4564-G. |
Citation | 617 F. Supp. 1521 |
Court | U.S. District Court — District of Massachusetts |
Parties | Shelley A. McCORMACK, Plaintiff, v. ABBOTT LABORATORIES et al., Defendants. |
COPYRIGHT MATERIAL OMITTED
Peter N. Munsing, Edward M. Swartz, Swartz & Swartz, Boston, Mass., for plaintiff.
William A. McCormack, S. Elaine McChesney, Anne J. Dubitzky, Bingham, Dana & Gould, Boston, Mass., for Upjohn Co.
Phillip M. Davis, Elizabeth M. Fahey, Morrison, Mahoney & Miller, Boston, Mass., for Dart Industries, Inc.
Walter G. Murphy, Murphy & Mitchell, Boston, Mass., for Merck & Co., Inc.
David W. Rosenberg, Mark C. Hanson, Hill & Barlow, Boston, Mass., for Abbott Laboratories.
Marshall Simonds, Don M. Kennedy, Loretta M. Smith, Goodwin, Procter & Hoar, Boston, Mass., for Eli Lilly & Co.
Samuel Adams, Joseph J. Leghorn, Christopher E. Nolin, Frances E. Balin, Warner & Stackpole, Boston, Mass., for E.R. Squibb & Sons.
MEMORANDUM AND ORDERS ON MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Defendants Eli Lilly and Company, E.R. Squibb & Sons, Inc., and Merck & Company, Inc. have filed motions to dismiss plaintiff's second amended complaint which arises out of the alleged ingestion by plaintiff's mother of diethylstilbestrol ("DES") or DES-related compounds or congenors during the pregnancy which resulted in plaintiff's birth on April 27, 1955. Plaintiff alleges that on or about April, 1974, she developed vaginal adenosis, pre-cancerous lesions in the vagina, as a direct and proximate result of her mother's ingestion of DES in 1954 and 1955. According to the complaint, the defendant drug companies1 negligently designed, manufactured and distributed the drug, failed adequately to test or inspect the drug, failed adequately to warn physicians and the general public of health risks of which the defendants knew or should have known, and negligently misrepresented to the public that the drugs were safe and effective for use by pregnant women in the prevention of miscarriage. The complaint also contains claims sounding in breach of express and implied warranty and strict liability. Plaintiff seeks to impose liability upon the defendants equally or in proportion to their share of the relevant market.
By way of procedural history, plaintiff's case was originally consolidated with the case of Payton v. Abbott Laboratories, Civil Action No. 76-1514-S. A class was certified and plaintiff opted to become a member of the class. On December 6, 1983, Judge Skinner decertified the class and plaintiff now prosecutes her action individually. It should be noted, however, that all rulings of substantive law made in Payton between class certification and decertification are binding on plaintiff as a class member and may not be relitigated in the instant case. Order on Motion to Decertify the Class, Civil Action No. 76-1514-S, December 6, 1983 (Skinner, J.).
After hearing and consideration of the briefs, affidavits, and exhibits submitted by the parties, the court grants defendants' motion in part and denies it in part. With respect to plaintiff's claim of strict liability, defendants' motion to dismiss is allowed. However, the court denies the motion to dismiss plaintiff's claims of negligence and breach of warranty.
Plaintiff charges defendants with placing an inherently unsafe and unreasonably dangerous product into the stream of commerce and seeks to impose on the defendants strict liability in tort. Defendants assert that plaintiff's claim is barred by a prior judgment entered in the Payton case prior to decertification of the plaintiff class. The court agrees.
The Payton defendants filed motions for summary judgment on the issue of strict liability. The motions were granted and judgment was entered on May 16, 1983 "against all named plaintiffs and against all members of the plaintiff class on all claims of strict liability." Payton v. Abbott Laboratories, Slip Opinion (1983) (Skinner, J.). Decertification did not occur until December, 1983. Plaintiff concedes that she is bound by all rulings of substantive law made in the Payton case prior to December, 1983. Accordingly, plaintiff's claim of strict liability in tort is precluded by the doctrine of res judicata and hereby is dismissed.
Plaintiff brings claims of breach of express and implied warranties made by defendants that their drugs containing DES were safe, merchantable and fit for the purpose for which they were intended. Defendants seek to have the breach of warranty claims dismissed on the ground that the transactions giving rise to plaintiff's claims are governed by the Uniform Sales Act, which provided that a party bringing a breach of warranty claim had to establish privity of contract with the defendant. Massachusetts warranty law is currently modeled after the Uniform Commercial Code, which dispenses with the privity requirement. M.G.L. c. 106, §§ 2-314 to 2-318.
Defendants' argument has already been advanced and rejected by the court in Payton v. Abbott Laboratories, D.Mass., 1982, 551 F.Supp. 245, 246. In that case, the court held that a cause of action for breach of warranty is available under Massachusetts law to any plaintiff whose physical symptoms first occurred after the effective date of the 1973 amendment of M.G.L. c. 106, § 2-318, namely December 16, 1973. Defendants do not dispute the fact that plaintiff's physical symptoms first occurred in April, 1975. Accordingly, plaintiff's claims of breach of warranty state valid causes of action under Massachusetts law and defendants' motion to dismiss such claims must be denied.
Turning to the principal issues raised by the defendants' motions, plaintiff seeks to impose liability on the defendants under a "market share" theory in order to bypass the traditional threshold requirement of any products liability action—identification of the injury-causing product and its manufacturer.2 It is undisputed that plaintiff will not be able to meet the identification requirement. Defendants seek to have plaintiff's market-share claim dismissed on two grounds: first, Massachusetts law does not recognize a cause of action under a market share theory; and second, even if such a cause of action exists, plaintiff has failed to plead it properly by not alleging that she exercised due diligence in attempting to identify the manufacturer of the drug ingested by her mother and that, through no fault of her own, she was unable to do so.
In order to evaluate the contentions of the parties, the court must review the theory of market-share liability as it has developed in the jurisprudence of Massachusetts and other states in the country.
In Payton v. Abbott Laboratories, 1982, 386 Mass. 540, 437 N.E.2d 171, Judge Skinner certified a question to the Supreme Judicial Court of Massachusetts: "whether manufacturers could be held liable to a plaintiff for DES-related injury when neither the plaintiff nor defendants could identify which manufacturer's DES was ingested by plaintiff's mother." The court declined to answer the question in the form stated. However, it did set forth its general views on the theory of market-share liability. The court stated that a theory which would permit a plaintiff to recover 100% of her losses from the manufacturers she has chosen to sue would create the risk of holding the named defendants liable in negligence for more harm than they caused. Secondly, a theory which would prohibit exculpatory proof, that is, proof by particular defendants that the DES they marketed could not have been ingested by a particular plaintiff's mother, would practically ensure that defendants innocent of wrongdoing to a particular plaintiff would be held liable to her. Id. at 573, 437 N.E.2d 171. The court stated that the identification requirement reduces the risk of holding innocent defendants liable or of punishing guilty defendants for more harm than they have caused.
The Supreme Judicial Court, however, did not reject outright a market-share theory. In fact, the court stated that on an adequate record, it might recognize "some relaxation of the traditional identification requirement in appropriate circumstances so as to allow recovery against a negligent defendant of that portion of a plaintiff's damages which is represented by that defendant's contribution of DES to the market in the relevant time period." Id. at 574, 437 N.E.2d 171.
The emergence of a market-share theory of liability in American jurisprudence stems from the recognition by several courts that the field of products liability has been changed drastically with the advent of mass production of fungible goods and complex marketing methods. Consumers may be harmed by a product not traceable to a specific producer. Clearly, the traditional tests of liability are insufficient to govern the obligations of manufacturer to consumer in such situations, and some adaptation of the rules of causation and liability seems appropriate.
Lack of identification evidence in DES cases is rarely attributable to any fault on the part of the plaintiff. Rather, it results from the fact that DES was, for the most part, produced in a "generic" form which lacked any identifying markings. DES was a fungible drug produced by as many as 300 drug companies from a chemically identical formula. Secondly, courts have suggested that pharmacies and drug companies have contributed to the dearth of identification evidence by not keeping or not being able to locate pertinent records. Lastly, the very fact that DES is a drug whose effects are delayed for many years has played a significant role in the unavailability of proof. See, e.g., Sindell v. Abbott Laboratories, 1980, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924; Martin v. Abbott Laboratories, 1984, 102 Wash.2d 581, 689 P.2d 368.
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