Morton v. Abbott Laboratories

Decision Date25 March 1982
Docket NumberNo. 80-933 Civ. T-K.,80-933 Civ. T-K.
Citation538 F. Supp. 593
PartiesMary T. MORTON, et vir, David M. Morton, Plaintiffs, v. ABBOTT LABORATORIES, et al., Defendants.
CourtU.S. District Court — Middle District of Florida

Robert F. Nunez, Roger S. Tucker, St. Petersburg, Fla., for plaintiffs.

Tom Mazza and A. Broaddus Livingston, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, Fla., for Eli Lilly & Co.

David J. Kadyk, Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for The Up-John Co.

R. Layton Mank, Miami, Fla., for ER Squibb.

Roy B. Dalton, Jr., Dean, Ringers, Morgan & Lawton, P. A., Orlando, Fla., for Abbott Lab.

ORDER

KRENTZMAN, Chief Judge.

This is a product liability action brought against eight drug manufacturers, four of whom have been served. Plaintiff Mary Morton1 alleges that she contracted vaginal adenosis as a result of her mother's use of the drug diethylstibestrol (DES) while plaintiff was in utero. Plaintiff does not allege which drug company manufactured the pills taken by her mother. See Amended Complaint ¶ 32. Rather, she alleges that the defendant drug companies manufactured a substantial share of the DES pills produced during the period in question, and argues various theories to support liability without the necessity of proving which company manufactured the pills in question. Defendants do not deny that they manufactured the drug DES during the period in question. Instead, they state, by motions for summary judgment, that at least 149 drug companies manufactured DES during that period, any one of which might have produced the pills taken by plaintiff's mother. Plaintiffs have responded to the motions for summary judgment, and have documented their response by filing a certified transcript of portions of the deposition testimony of Dr. Don Carlos Hines, taken in Bichler v. Eli Lilly and Co., Index No. 15600/74 (Sup.Ct.Bronx County, New York).

The motions for summary judgment were heard by the Court. At hearing, which was attended by plaintiffs Mary T. and David M. Morton, counsel for plaintiffs filed a motion to continue the hearing and a motion to withdraw. The proceedings were reported, and are available for transcription if required. For the reasons stated at hearing, the motions to continue and withdraw were and are DENIED.

The issue raised in the motions for summary judgment is whether these defendants may be held liable without proof that one, or indeed any, of them manufactured the pills that caused plaintiff's injury. Plaintiff argues that this issue cannot be decided at the summary judgment stage, as its determination raises contested questions of fact. A motion for summary judgment is to be granted if the pleadings, discovery, and the documentation supporting the motion reveal no "genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A properly supported motion for summary judgment cannot be resisted on mere allegations alone; such a motion "pierces" the pleadings and tests whether the factual dispute is "genuine." Joe Regueira, Inc. v. American Distilling Co., 642 F.2d 826, 829 (5th Cir. 1981). By their motions for summary judgment, defendants attack the element of causation. This use of the summary judgment mechanism is entirely appropriate. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2729 (1973).

Plaintiff in a product liability action must ordinarily prove that a manufacturer defendant produced the product that allegedly caused the injury. See Restatement (Second) of Torts §§ 402A, 433B (1965); W. Prosser, The Law of Torts § 98 (1971). Florida has expressly adopted the doctrine of strict liability in tort as formulated in the Second Restatement of Torts, § 402A. West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). In so doing, the Supreme Court of Florida adhered to the traditional principle of causation in such cases: "In order to hold a manufacturer liable ... the user must establish the manufacturer's relationship to the product in question ...." Id. at 87. The courts of Florida have enforced this requirement. See, e.g., Matthews v. GSP Corp., 368 So.2d 391 (Fla.App.1979).

Plaintiff relies on several legal theories in support of her argument that recovery is available without proof of which drug company actually manufactured the pills in question. The first two theories concern joint torts: plaintiff would establish the liability of several companies jointly under the "concert of action" or "enterprise liability" theories, thereby entitling her to recover from those joined as defendants. The requirement of causation remains intact under these theories. The last two, however, are novel theories of causation rather than of joint liability: plaintiff argues that the Court should overlook the flaws in traditional causation under either the theory of "alternative liability" or that of "market share." Each of these four theories will be discussed below.

A. Concert of Action.

Relying on the concert of action theory of joint tort liability, plaintiffs would hold these several defendants liable for having acted in concert with each other and other drug manufacturers in causing her injury. Specifically, plaintiffs allege that the drug companies acted in concert "in the testing, manufacturing, distribution, promoting, marketing and sale of DES and the dissemination of literature regarding DES to practicing physicians." Amended Complaint ¶ 26. Further, plaintiffs allege that defendants are liable for manufacturing and selling DES "with identical chemical constituency by a mutually agreed-upon formula," thereby enabling the marketing of DES as a generic drug and preventing consumers from identifying the manufacturer. Id. ¶ 27.

The concert of action concept is generally accepted in the courts of this country, and has been embraced by the Supreme Court of Florida for years. See Symmes v. Prairie Pebble Phosphate Co., 66 Fla. 27, 63 So. 1 (1913); Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (1913); Skroh v. Newby, 237 So.2d 548 (Fla.App.1970); Prosser, supra, § 46. Dean Prosser has stated the doctrine as follows:

All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify or adopt his acts done for their benefit, are equally liable with him.

Prosser, supra at 292 (footnotes omitted).2 The classic example of such liability is the drag race: A and B are illegally racing when A injures C. A and B are jointly and severally liable because their concerted tortious conduct caused C's injuries. See, e.g., Skroh v. Newby, supra. The parties have cited no Florida case setting out the elements of concert of action. The decisions that have been noted either do not apply the doctrine or apply it without discussion. See, e.g., Insurance Field Services, Inc. v. White and White Inspection and Audit Service, Inc., 384 So.2d 303 (Fla.App.1980); Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. App.1977); Skroh v. Newby, supra.

Several courts have reviewed the concert of action theory in the course of deciding DES cases. 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 Supreme Court of California relied on the Restatement formulation and on Dean Prosser's admonition that "express agreement is not necessary, and all that is required is that there must be a tacit understanding." See Prosser, supra § 46. Other courts have emphasized that, in order to support liability under the concert theory, a defendant's conduct must itself have been tortious. See Payton v. Abbott Labs, 512 F.Supp. 1031, 1035 (D.Mass.1981); Lyons v. Premo Pharmaceutical Labs, Inc., 170 N.J. Super. 183, 406 A.2d 185, 190 (App.Div.), cert. denied, 82 N.J. 267, 412 A.2d 774 (N.J. 1979). See also Restatement (Second) of Torts § 876, comment b (1979).

This Court agrees with the vast majority of courts that have considered the question: the DES manufacturers simply did not act in concert as that concept is defined in tort law.3 Their filings with the Food and Drug Administration (FDA) did not represent concerted tortious conduct. In 1940, several companies filed wholly separate applications with the FDA to market DES. By these applications, the manufacturers sought to market DES for purposes unrelated to pregnancy.4 The FDA rejected these several applications, requiring the companies to coordinate a single "master" filing of clinical data. See Lyons, supra, 406 A.2d at 189; Klumpp deposition at 72. The manufacturers formed a "small committee" to assemble the data into a master clinical file, and this file was submitted to the FDA in 1941. Thereafter, the several companies each resubmitted their applications. The master filing was not concerted tortious conduct for two reasons. First, the act of filing a unified compilation was at the request of the FDA. Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1014 (D.S.C.1981). Second, and more importantly, the master filing related to the marketing of DES for purposes other than those for which it has been shown or is alleged to be dangerous. Selling prescription drugs for such purposes can hardly be considered tortious. Lyons, supra, 406 A.2d at 191. It was not until several years later, in 1947, that drug manufacturers began applying to the FDA for permission to sell DES for pregnancy-related purposes, and these filings were made completely independently. See id.; Payton, supra at 1038; Hines Affidavit ¶ 31.

The activities of the manufacturers after the FDA began approving DES for use to prevent miscarriage also fail to suggest any concerted activity. There is simply no indication of any conduct that might conceivably raise an inference that a tacit understanding or common plan existed among DES manufacturers.5 One...

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