Sheffield v. Eli Lilly & Co,, No. A013100

• Court: California Court of Appeals
• Writing for the Court: SIMS; WHITE, P.J., and FEINBERG
• Citation: 144 Cal.App.3d 583,192 Cal.Rptr. 870
• Parties: Kathryn SHEFFIELD et al., Plaintiffs and Appellants, v. ELI LILLY AND COMPANY et al., Defendants and Respondents. Civ. 52344.
• Docket Number: No. A013100
• Decision Date: 08 June 1983

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192 Cal.Rptr. 870 144 Cal.App.3d 583 Kathryn SHEFFIELD et al., Plaintiffs and Appellants,
v.
ELI LILLY AND COMPANY et al., Defendants and Respondents. No. A013100. Civ. 52344. Court of Appeal, First District, Division 3, California. June 8, 1983.

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[144 Cal.App.3d 586] Justs N. Karlsons, James W. Henderson, Jr., Carroll, Burdick & McDonough, San Francisco, for plaintiffs and appellants.

Gudmundson, Siggins & Stone, W.W. Gudmundson, Paula M. Weaver, San Francisco, for defendants and respondents Wyeth Laboratories, Div. of American Home Products Corp. and American Home Products Corp.

Gilmore F. Diekmann, Jr., Peter B. Logan, Bronson, Bronson & McKinnon, San Francisco, for defendant and respondent Merck & Co., Inc.

J. Jay Schnack, Moore, Clifford, Wolfe, Larson & Trutner, Oakland, for defendant and respondent The Dow Chemical Co.

Berry & Berry, Oakland, for defendant and respondent Parke, Davis & Co.

Richard J. Heafey, Peter W. Davis, James M. Wood, Crosby, Heafey, Roach & May, Oakland, for defendant and respondent Eli Lilly & Co.

SIMS, Associate Justice. ^*

Plaintiffs, daughter and mother, have appealed from separate judgments entered in favor of five pharmaceutical manufacturers after the court granted the latters' motions for summary judgment.

On October 20, 1975, plaintiffs filed their complaint seeking special, general and punitive damages for permanent disability suffered by plaintiff daughter, allegedly proximately resulting from injection with defective Salk vaccine in the fall of 1956 and spring of 1957 when she was a school girl in Indiana. The complaint, as amended November 20, 1975, set forth causes of action sounding in strict liability, negligence, fraudulent concealment and [144 Cal.App.3d 587] breach of express and implied warranties with regard to the manufacture, production, distribution, sale, testing, storing, inspecting and injecting of Salk anti-polio vaccine. A supplemental complaint filed October 7, 1976 alleges that the defendants acted intentionally, willfully and maliciously with conscious disregard for the safety, health and rights of the plaintiffs and the general public. The defendants represent all of the manufacturers authorized to and actually engaged in the manufacture, production and sale of the vaccine at the time of the daughter's inoculation. ¹ Concededly despite exhaustive discovery it has been impossible to identify the manufacturer of the vaccine, defective or not, ² that was administered at the time and place that the plaintiff daughter allegedly was inoculated.

Each motion for summary judgment was made on the grounds that the plaintiffs had failed to produce competent evidence to establish the identity of the specific manufacturer

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of the injury causing product, and that therefore the action had no merit, there was no credible issue of fact and the complaint failed to state a cause of action as a matter of law.

On appeal the plaintiffs contend that the trial court erred in granting the motions because there is a triable issue of fact under the market share basis of liability expounded in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, certiorari denied 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140, and under an "enterprise," or more accurately, "industry-wide" liability theory. (See Hall v. E.I. Du Pont De Nemours & Co., Inc. (E.D.N.Y.1972) 345 F.Supp. 353, and Comment, DES and a Proposed Theory of Enterprise Liability (1978) 46 Fordham L.Rev. 963 (hereafter Fordham Comment).) They assert that under the foregoing precedents the burden was on each defendant to establish as a matter of law that it had no involvement in the manufacture or distribution of the vaccine causing plaintiff's injury. When faced with the argument that the foregoing rules only applied to a market or enterprise in which all the participants were manufacturers or distributors of a defective product, the plaintiffs in their closing brief suggest that the defendants have [144 Cal.App.3d 588] failed to show that they did not act in concert so that all would be responsible if the vaccine was improperly prepared or marketed by one, and all would be responsible for failure to give a proper warning.

We conclude that the record in this case demonstrates that plaintiffs are not entitled to shift the burden of proof to manufacturers of nondefective vaccine, and that the trial court properly granted the defendants' motions for summary judgment. The judgments must be affirmed.

Introduction

The facts are gleaned from the almost 2,000 page record of pleadings, admissions, interrogatories and answers thereto, extracts from depositions, declarations and motions as the same have been referred to in the parties' presentations before this court. Those served and appearing as defendants and respondents are Eli Lilly and Company (hereafter "Lilly"), Parke Davis & Company ("Parke Davis"), Dow Chemical Company, as successor to Pitman Moore Division of Allied Laboratories, Inc. ("Dow"), Wyeth Laboratories Division of American Home Products Corporation and American Home Products Corporation (collectively "Wyeth"), and Merck and Company, Inc. through its Sharpe and Dohme Division ("Merck").

Following the establishment of issues by the pleadings and some discovery, defendant Lilly on June 8, 1979 filed its motion for summary judgment. The other defendants each joined in seeking similar relief. Plaintiffs filed their opposition to the motions in which they claimed that the motion was premature because they were making substantial progress in identifying the culpable manufacturer, needed time for further discovery, and sought delay pending determination of the Sindell case that had been granted a hearing in the Supreme Court. Following a hearing on June 25, 1979, the court ordered that the motion be denied without prejudice to renewal 120 days after the date of the order.

On October 25, 1979, Lilly again filed a second motion for summary judgment. Wyeth and Merck joined in this motion, and Merck also filed independently. The plaintiffs filed extensive opposition, opposing the motion on its merits, and again sought a delay for further discovery and because of pending undetermined litigation. The records filed in connection with the earlier motion were incorporated by reference. On November 9, 1979, the court continued the pending motions to January 11, 1980.

A month later, on December 14, 1979, the plaintiffs applied for a commission to take depositions in Indiana. Lilly filed opposition on the grounds that the plaintiffs had sought a delay in June to take depositions and had not [144 Cal.App.3d 589] promptly moved to do so. On December 20, 1979, the court denied plaintiffs' application as to those employees of Lilly who had been mentioned as prospective deponents in the June proceedings, and

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granted the commission with respect to the other witnesses.

On December 26, 1979, Dow joined in the motion for summary judgment.

On December 27, 1979, the plaintiffs filed their notice of motion for leave to file an amendment to their complaint to assert additional causes of action against the defendants on theories of enterprise liability, concert of action and market share, similar to those set forth in the then pending Sindell case.

On January 11, 1980, after the plaintiffs, Lilly and Merck had filed other voluminous documents in support of their respective positions, the motions came on for hearing. The court granted the plaintiffs' motions to file amendments to their complaint, and granted the pending motions for summary judgment. Subsequently, a similar motion for summary judgment was interposed by Parke Davis and was granted. It was stipulated that the appeals from the respective judgments entered for the defendants be consolidated in these proceedings.

The Facts

In March 1953, Dr. Jonas Salk announced the development of a vaccine for poliomyelitis. Thereafter, the National Foundation for Infantile Paralysis, a nonprofit organization which had funded extensive research culminating in Dr. Salk's discovery, invited a number of manufacturers of biologicals to produce vaccine for a series of field trials designed to ascertain whether the vaccine was safe and effective. Six drug companies expressed a willingness to undertake production--Merck, through its Sharp and Dohme division, Lilly, Parke Davis and the Pitman Moore Division of Allied Laboratories, Inc., predecessor in interest to Dow, American Home Products Corporation, through its Wyeth Laboratories subsidiary, and Cutter Laboratories. Testing proceeded in 1954 and 1955 under the auspices of the Foundation.

On April 12, 1955, Dr. Thomas Francis of the University of Michigan reported that Salk vaccine had proved to be both safe and effective, and the Secretary of the United States Department of Health, Education and Welfare ("HEW") immediately licensed the manufacturers to commence commercial production and distribution of the vaccine.

Between July 1955 and August 1956, the vaccine was allocated among the states under a voluntary system administered by the United States Public [144 Cal.App.3d 590] Health Service. Thereafter, vaccine could be purchased from the five manufacturers through each manufacturer's independent sales and distribution system. Purchases of vaccine by state governmental entities were financed in part by the federal government through the Poliomyelitis Vaccination Assistance Act of 1955. ³

Salk vaccine was produced in accordance with the minimum requirements promulgated by HEW. Although live poliomyelitis virus was used in the production of vaccine, the infectivity potential of the virus was to be destroyed during the manufacturing process. If the vaccine were improperly processed so that the live poliomyelitis virus was not destroyed, the vaccine could actually result in the introduction of live virus thus causing the very disease against which the...