Sindell v. Abbott Laboratories

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; BIRD; RICHARDSON
Citation607 P.2d 924,26 Cal.3d 588,163 Cal.Rptr. 132
Parties, 607 P.2d 924, 2 A.L.R.4th 1061 Judith SINDELL, Plaintiff and Appellant, v. ABBOTT LABORATORIES et al., Defendants and Respondents. Maureen ROGERS, Plaintiff and Appellant, v. REXALL DRUG COMPANY et al., Defendants and Respondents. L.A. 31063
Decision Date20 March 1980

Page 132

163 Cal.Rptr. 132
26 Cal.3d 588, 607 P.2d 924, 2 A.L.R.4th 1061
Judith SINDELL, Plaintiff and Appellant,
v.
ABBOTT LABORATORIES et al., Defendants and Respondents.
Maureen ROGERS, Plaintiff and Appellant,
v.
REXALL DRUG COMPANY et al., Defendants and Respondents.
L.A. 31063.
Supreme Court of California
March 20, 1980.
Rehearing Denied May 7, 1980.

[26 Cal.3d 592]

Page 133

[607 P.2d 925] Donnenfeld & Brent, Jason G. Brent, Laurence M. Marks, Los Angeles, Heily, Blase, Ellison & Wellcome and Jay H. Sorensen, Ventura, for plaintiffs and appellants.

[26 Cal.3d 593] Wylie Aitken, Santa Ana, Stephen Zetterberg, Claremont, Robert E. Cartwright, San Francisco, Harry DeLizonna, San Jose, Edward I. Pollock, Los Angeles, J. Nick DeMeo, Santa Rosa, Sanford M. Gage, Beverly Hills, Leonard Sacks, Encino, David Rosenberg, Jeanne Baker, David J. Fine and Rosenberg, Baker & Fine, Cambridge, Mass., amici curiae for plaintiffs and appellants.

Morgan, Wenzel & McNicholas, Darryl L. Dmytriw, Los Angeles, Lord, Bissel & Brook, Hugh L. Moore, Chicago, Ill., Crosby, Heafey, Roach & May, Richard J. Heafey, Peter W. Davis, John E. Carne, Oakland, Leonard M. Friedman, James H. Fleming, George Fletcher, Adams, Duque & Hazeltine, Los Angeles, Richard C. Field, David L. Bacon, Haight, Dickson, Brown & Bonesteel, Los Angeles, Robert L. Dickson, Newport Beach, Roy G. Weatherup and Hall R. Marston, Los Angeles, for defendants and respondents.

MOSK, Justice.

This case involves a complex problem both timely and significant: may a plaintiff, injured as the result of a drug administered to her mother during pregnancy, who knows the type of drug involved but cannot identify the manufacturer of the precise product, hold liable for her injuries a maker of a drug produced from an identical formula?

Plaintiff Judith Sindell brought an action against eleven drug companies and Does 1 through 100, on behalf of herself and other women similarly situated. The complaint alleges as follows:

Between 1941 and 1971, defendants were engaged in the business of manufacturing, promoting, and marketing diethylstilbesterol (DES), a drug which is a synthetic compound of the female hormone estrogen. The drug was administered to plaintiff's mother and the mothers of the class she represents, 1 for the purpose of preventing miscarriage. In 1947, the Food and Drug Administration authorized the marketing of DES as a miscarriage preventative, but only on an experimental basis, with a requirement that the drug contain a warning label to that effect.

[26 Cal.3d 594] DES may cause cancerous vaginal and cervical growths in the daughters exposed to it before birth, because their mothers took the drug during pregnancy. The form of cancer from which these daughters suffer is known as adenocarcinoma, and it manifests itself after a minimum latent period of 10 or 12 years. It is a fast-spreading and deadly disease, and radical surgery is required to prevent it from spreading. DES also causes adenosis, precancerous vaginal and cervical growths which may spread to other areas of the body. The treatment for adenosis is cauterization, surgery, or cryosurgery. Women who suffer from this condition must be monitored by biopsy or colposcopic examination twice a year, a painful and expensive procedure. Thousands of women whose mothers received DES during pregnancy are unaware of the effects of the drug.

In 1971, the Food and Drug Administration ordered defendants to cease marketing and promoting DES for the purpose of preventing miscarriages, and to warn physicians and the public that the drug should not be used by pregnant women because of the danger to their unborn children.

During the period defendants marketed DES, they knew or should have known that it was a carcinogenic substance, that there was a grave danger after varying periods of latency it would cause cancerous and precancerous growths in the daughters of the mothers who took it, and that it was ineffective

Page 134

[607 P.2d 926] to prevent miscarriage. Nevertheless, defendants continued to advertise and market the drug as a miscarriage preventative. They failed to test DES for efficacy and safety; the tests performed by others, upon which they relied, indicated that it was not safe or effective. In violation of the authorization of the Food and Drug Administration, defendants marketed DES on an unlimited basis rather than as an experimental drug, and they failed to warn of its potential danger. 2

Because of defendants' advertised assurances that DES was safe and effective to prevent miscarriage, plaintiff was exposed to the drug prior to her birth. She became aware of the danger from such exposure within one year of the time she filed her complaint. As a result of the DES ingested by her mother, plaintiff developed a malignant bladder [26 Cal.3d 595] tumor which was removed by surgery. She suffers from adenosis and must constantly be monitored by biopsy or colposcopy to insure early warning of further malignancy.

The first cause of action alleges that defendants were jointly and individually negligent in that they manufactured, marketed and promoted DES as a safe and efficacious drug to prevent miscarriage, without adequate testing or warning, and without monitoring or reporting its effects.

A separate cause of action alleges that defendants are jointly liable regardless of which particular brand of DES was ingested by plaintiff's mother because defendants collaborated in marketing, promoting and testing the drug, relied upon each other's tests, and adhered to an industry-wide safety standard. DES was produced from a common and mutually agreed upon formula as a fungible drug interchangeable with other brands of the same product; defendants knew or should have known that it was customary for doctors to prescribe the drug by its generic rather than its brand name and that pharmacists filled prescriptions from whatever brand of the drug happened to be in stock.

Other causes of action are based upon theories of strict liability, violation of express and implied warranties, false and fraudulent representations, misbranding of drugs in violation of federal law, conspiracy and "lack of consent."

Each cause of action alleges that defendants are jointly liable because they acted in concert, on the basis of express and implied agreements, and in reliance upon and ratification and exploitation of each other's testing and marketing methods.

Plaintiff seeks compensatory damages of $1 million and punitive damages of $10 million for herself. For the members of her class, she prays for equitable relief in the form of an order that defendants warn physicians and others of the danger of DES and the necessity of performing certain tests to determine the presence of disease caused by the drug, and that they establish free clinics in California to perform such tests.

Defendants demurred to the complaint. While the complaint did not expressly allege that plaintiff could not identify the manufacturer of the precise drug ingested by her mother, she stated in her points and authorities[26 Cal.3d 596] in opposition to the demurrers filed by some of the defendants that she was unable to make the identification, and the trial court sustained the demurrers of these defendants without leave to amend on the ground that plaintiff did not and stated she could not identify which defendant had manufactured the drug responsible for her injuries. Thereupon, the court dismissed the action. 3 This appeal involves only five of ten defendants named in the complaint. 4

Page 135

[607 P.2d 927] Plaintiff Maureen Rogers filed a complaint containing allegations generally similar to those made by Sindell. She seeks compensatory and punitive damages on her own behalf, and on behalf of a class described in substantially the same terms as in Sindell's complaint, as well as equitable relief comparable to that sought by Sindell. The trial court sustained demurrers of E.R. Squibb & Sons, The Upjohn Company, and Rexall Drug Company. 5 Subsequent to the dismissal of her action [26 Cal.3d 597] against these defendants, Rogers amended the complaint to allege that Eli Lilly and Company, one of the defendants named in her complaint, had manufactured the drug used by her mother. Although Sindell's action and the present case have been consolidated on appeal, much of the discussion which follows will apply to Rogers only if she does not succeed in establishing that Eli Lilly and Company manufactured the DES taken by her mother. "Plaintiff" as used in this opinion refers to Sindell, and we discuss only the allegations of Sindell's complaint.

This case is but one of a number filed throughout the country seeking to hold drug manufacturers liable for injuries allegedly resulting from DES prescribed to the plaintiffs' mothers since 1947. 6 According to a note in the Fordham Law Review, estimates of the number of women who took the drug during pregnancy range from 1 1/2 million to 3 million. Hundreds, perhaps thousands, of the daughters of these women suffer from adenocarcinoma, and the incidence of vaginal adenosis among them is 30 to 90 percent. (Comment, DES and a Proposed Theory of Enterprise Liability (1978) 46 Fordham L.Rev. 963, 964-967 (hereafter Fordham Comment).) Most of the cases are still pending. With two exceptions, 7 those that have been decided resulted in judgments in favor of the drug company defendants because of the failure of the plaintiffs[607 P.2d 928] to identify the manufacturer of the

Page 136

DES prescribed to their mothers. 8 The same result was reached in a recent California case. (McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 82-84, 150 Cal.Rptr. 730.) The present action is another attempt to overcome this obstacle to recovery.

We begin with the proposition that, as a general rule, the imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the...

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348 practice notes
  • In re Dow Corning Corp., No. 95-20512.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • 22 Junio 2000
    ...by use of market share evidence." U.S. Br. in Support of Second Motion to Compel at 12 (citing Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, 940 (1980) (Richardson, J., 250 BR 362 Of course a plaintiff may prove the essential elements of her claim, inc......
  • In re Methyl Tertiary Butyl Ether ("Mtbe") Prod., No. 00-Civ. 1898(BS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 20 Agosto 2001
    ...back to its manufacturer when, years after the product was ingested, the plaintiff manifested an injury. See Sindell v. Abbott Labs., 26 Cal.3d 588, 163 Cal. Rptr. 132, 607 P.2d 924 (Ca.1980). Under market-share liability, when a plaintiff is unable to identify the specific manufacturer of ......
  • 210 E. 86th St. Corp. v. Combustion Engineering, No. 87 Civ. 6497 (VLB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 31 Marzo 1993
    ...features or characteristics of the instrumentalities produced by the industry defendants. The court in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal. Rptr. 132 607 P.2d 924 (1980), which established market share theory took pains to establish that it was dealing with "fungible......
  • In re No. Dist. of Cal." Dalkon Shield" IUD Products, No. C-80-2213 SW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 5 Noviembre 1981
    ...context of the multiple party suit where other factors tend to protect against excessive verdicts. 163 Sindell v. Abbott Laboratories, 26 Cal.3d 588, 611, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, sub nom. E.R. Squibb & Sons, Inc. v. Sindell, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d......
  • Request a trial to view additional results
342 cases
  • In re Dow Corning Corp., No. 95-20512.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • 22 Junio 2000
    ...implant by use of market share evidence." U.S. Br. in Support of Second Motion to Compel at 12 (citing Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, 940 (1980) (Richardson, J., 250 BR 362 Of course a plaintiff may prove the essential elements of her claim, ......
  • In re Methyl Tertiary Butyl Ether ("Mtbe") Prod., No. 00-Civ. 1898(BS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 20 Agosto 2001
    ...back to its manufacturer when, years after the product was ingested, the plaintiff manifested an injury. See Sindell v. Abbott Labs., 26 Cal.3d 588, 163 Cal. Rptr. 132, 607 P.2d 924 (Ca.1980). Under market-share liability, when a plaintiff is unable to identify the specific manufacturer of ......
  • 210 E. 86th St. Corp. v. Combustion Engineering, No. 87 Civ. 6497 (VLB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 31 Marzo 1993
    ...features or characteristics of the instrumentalities produced by the industry defendants. The court in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal. Rptr. 132 607 P.2d 924 (1980), which established market share theory took pains to establish that it was dealing with "fungible good......
  • In re No. Dist. of Cal." Dalkon Shield" IUD Products, No. C-80-2213 SW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 5 Noviembre 1981
    ...context of the multiple party suit where other factors tend to protect against excessive verdicts. 163 Sindell v. Abbott Laboratories, 26 Cal.3d 588, 611, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, sub nom. E.R. Squibb & Sons, Inc. v. Sindell, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140......
  • Request a trial to view additional results
6 books & journal articles
  • Diethylstilbestrol and the Birth of Market-Share Liability
    • United States
    • Looking back to move forward: resolving health & environmental crises Section I
    • 11 Octubre 2020
    ...the DES Causation Problem , 94 Harv. L. Rev. 668, 669 & n.10 (1981) [hereinafter Market Share Liability Note]. 3. Sindell v. Abbott Labs., 607 P.2d 924, 936–37 (Cal. 1980). 4. See, e.g. , Sutowski v. Eli Lilly & Co., 696 N.E.2d 187, 190 n.1 (Ohio 1998) (listing several cases). Copyright © 2......
  • The Revival of Respondeat Superior and Evolution of Gatekeeper Liability
    • United States
    • Georgetown Law Journal Nbr. 109-1, October 2020
    • 1 Octubre 2020
    ...an industry liable for a tort when it is impossible to identify the actual harm-causing manufacturer. See, e.g., Sindell v. Abbott Labs., 607 P.2d 924, 928 & n.9 (Cal. 1980). More commonly, it refers to holding the organizationally connected web of subsidiaries and parents responsible as on......
  • A new causal pathway for recovery in climate change litigation?
    • United States
    • Environmental Law Reporter Nbr. 52-1, January 2022
    • 1 Enero 2022
    ...P.2d 1 (Cal. 1948). 85. Wright, supra note 72, at 1816. 86. Lawson, supra note 81, at 451-52 (discussing Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)). 87. Id . at 452. 88. Tory Weigand, Tort Law—he Wrongful Demise of But For Causation , 41 W. New Eng. L. Rev. 75, 83 (2019). 89.......
  • Responding to Climate-Related Harms: A Role for the Courts?
    • United States
    • Contemporary issues in climate change law and policy: essays inspired by the IPCC
    • 20 Abril 2016
    ...movements within the socio-legal scholarship ofer some insight into the productive possi- 48. See , e.g. , Sindell v. Abbott Laboratories, 607 P.2d 924, 937 (Cal. 1980) (holding that defendant manufacturers of the drug DES could be held liable in proportion to their respective shares of the......
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