Sindell v. Abbott Laboratories

• Decision Date: 21 September 1978
• Parties: 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. Civ. 51845, Civ. 51875.
• Court: California Court of Appeals Court of Appeals

Page 138

149 Cal.Rptr. 138

85 Cal.App.3d 1

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.

Civ. 51845, Civ. 51875.

Court of Appeal, Second District, Division 3, California.

Sept. 21, 1978.

As Modified on Denial of Rehearing Oct. 19, 1978.

As Modified Nov. 25, 1978.

Opinion on Hearing, see 163 Cal. Rptr. 132, 607 P.2d 924.

Donnenfeld & Brent and Jason G. Brent, Los Angeles, for plaintiff and appellant Judith Sindell.

Heily, Blase, Ellison & Wellcome and Jay H. Sorensen, Oxnard, for plaintiff and appellant Maureen Rogers.

Morgan, Wenzel & McNicholas, Darryl L. Dmytriw, Lord, Bissel & Brook, Los Angeles and Hugh L. Moore for defendant and respondent Abbott Laboratories.

Crosby, Heafey, Roach & May, Richard J. Heafey, Peter W. Davis and John E. Carne, Oakland, for defendant and respondent Eli Lilly and Co.

Adams, Duque & Hazeltine, Richard C. Field and David L. Bacon, Los Angeles, for defendant and respondent Rexall Drug Co.

Haight, Dickson, Brown, Bonesteel & Rigg, Robert L. Dickson, Roy G. Weatherup and Hall R. Marston, Los Angeles, for defendants and respondents E. R. Squibb & Sons, Inc. and Upjohn Co.

KLEIN, Presiding Justice.

INTRODUCTORY STATEMENT

These appeals are from dismissals and judgments entered after the sustaining of defendants' demurrers to actions brought by Judith Sindell (hereinafter Sindell) and Maureen Rogers (hereinafter Rogers) for personal injuries allegedly resulting from prenatal exposure to diethylstilbestrol (DES). Although arising out of actions in the Los Angeles County and Ventura County Superior Courts, the appeals are consolidated because of common issues of fact and law.

In both actions, defendant drug manufacturers demurred on the ground that the complaints failed to state a cause of action in that there was no identification of the particular defendant which manufactured the DES that allegedly caused harm to plaintiffs; it appears that it was on this premise only that the demurrers were sustained without leave to amend. For the reasons discussed below, we reverse the judgments of dismissal.

STATEMENT OF THE CASE

Both Sindell and Rogers sue on their own behalf and as representatives of all women residing in California who are similarly situated, although Sindell limits her representative status to the portion of her complaint seeking certain equitable relief. The complaints, which are substantially identical, allege that the prerequisites for maintaining plaintiff and defendant class actions are satisfied. ¹ Both actions are for money damages and equitable relief and seek to hold defendants individually and jointly liable for unlawfully manufacturing, marketing, and promoting DES. The complaints allege that DES, which was ingested by plaintiffs' mothers as a miscarriage preventative, has caused plaintiffs to develop precancerous and cancerous tumors and lesions.

Sindell's Complaint

In her complaint, Sindell alleges that she has developed precancerous lesions or tumors of the vagina, cervix, and breast and a cancerous bladder tumor which has been surgically removed. Her complaint sets forth ten causes of action, each of which is alleged to arise from the individual and concerted action of the defendants in the manufacture and marketing of DES. The causes of action charge express and implied agreements among defendants and collaboration in, reliance upon, and adoption of each other's testing and marketing methods with respect to the subject drug.

In her first seven causes of action, Sindell seeks to hold defendants liable on the following theories: negligence, strict products liability, lack of informed consent, breach of express warranties, breach of implied warranties, fraud, and violations of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.).

In what is denominated an eighth cause of action, Sindell alleges that all activities The ninth cause of action sounds in conspiracy, and the tenth relates to the class aspects of the action. Nowhere in Sindell's complaint does she identify the specific manufacturer of the DES ingested by her mother.

engaged in by the defendants were the result of joint and concerted enterprise, that there existed a common and mutually agreed upon formula for the drug, that the various brands of DES were marketed by the defendants as being fungible and interchangeable with all other brands of the drug, and that there was a pharmaceutical practice of filling prescriptions of DES with a brand other than that prescribed.

The general demurrers of defendants Rexall Drug Company, E. R. Squibb & Sons, Inc., and Upjohn Company were sustained without leave to amend, all on the ground that Sindell had failed in her complaint to identify the specific manufacturer of the DES which allegedly injured her. Defendant Abbott Laboratories' general demurrer was sustained with 30 days leave to amend, the court noting the absence of an "allegation that any product manufactured by demurring defendant caused any harm to plaintiff." Sindell, however, failed to thereafter amend her complaint. Defendant Eli Lilly and Company's motion for summary judgment was treated as a demurrer and sustained without leave to amend on the same ground as stated previously that Sindell could not name an individual defendant.

Sindell appeals from the orders of dismissal which were subsequently entered in favor of the above named defendants. ²

Rogers' Complaint

Rogers alleges that she has developed cervical cancer and precancerous lesions or tumors of the vagina and cervix. She also alleges that defendant manufacturers of DES have acted both individually and jointly, their "joint and concerted" actions including, but not limited to, joint testing, marketing, and promotional activity, as well as mutual exploitation of the common formula for the drug, which in turn led to the pharmaceutical practice of treating the various brands of DES as being interchangeable with one another.

Rogers' first amended complaint contains the following six causes of action: negligence, strict products liability, breach of express warranties, breach of implied warranties, false representations, and violations of the Federal Food, Drug, and Cosmetic Act.

By amendment to her first amended complaint, Rogers has identified defendant Eli Lilly and Company as the manufacturer of the DES ingested by her mother.

The general demurrer of defendant Rexall Drug Company was sustained without leave to amend "because Rexall is nowhere in the pleadings shown to have provided or purveyed the particular drug which affected plaintiff (Rogers) . . . ." The joint demurrer of defendants E. R. Squibb & Sons, Inc. and Upjohn Company was sustained without leave to amend on the stated ground that Rogers' first amended complaint failed to allege facts sufficient to sustain a cause of action. ³ Rogers appeals from the orders of dismissal subsequently entered in favor of these defendants. Since Rogers identified Eli Lilly and Company as

the producer of the DES taken by her mother, it remains a defendant in her case. ⁴

DISCUSSION

Preliminary to our discussion, we note that since these appeals are before us on general demurrers, we must assume all allegations of fact set forth in the complaints to be true. (Landeros v. Flood (1976) 17 Cal.3d 399, 407, 131 Cal.Rptr. 69, 551 P.2d 389; Bayer v. Suttle (1972) 23 Cal.App.3d 361, 363, 100 Cal.Rptr. 212.) The question of plaintiffs' ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court. (Landeros v. Flood, supra; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) Furthermore, "A general demurrer admits not only the facts expressly alleged but also facts essential to a cause of action which the facts alleged supply by implication or inference." (Harvey v. City of Holtville (1969) 271 Cal.App.2d 816, 819, 76 Cal.Rptr. 795, 797.)

Being thus directed by the case law noted, we observe that both the Sindell and Rogers complaints contain factual allegations which, if proven, would establish that defendants are both individually and jointly responsible for plaintiffs' injuries in that they acted in both their individual capacities and in concert in the doing of the wrongful acts which caused those injuries. This is the state of the record before us as the reviewing court. As such, the doctrines of concerted action and alternative liability enable these complaints to stand at this stage of the proceedings.

Defendants' parade of horribles and fears of "collectivized liability" or "enterprise liability" are groundless in the light of our narrow holding embracing these two California doctrines. ⁵

The Concerted Action Theory

Section 876 of the Restatement of Torts, which is entitled "Persons Acting in Concert," provides in pertinent part as follows:

"For harm resulting to a third person from the tortious conduct of another, a person is liable if he

". . .rm

"(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to 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."

It has been noted that the rule as stated in the above section of the Restatement is clearly the law of California. (Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 113, 140 Cal.Rptr. 41, citing Loeb v. Kimmerle (1932) 215 Cal. 143, 150, 9 P.2d 199.)

Witkin states that the Restatement's definition of "joint tortfeasors" applies not only to those who act in concert to accomplish some common goal or plan and thereby cause injury, but also to "those who order, direct or permit others to do the act,...