(See George v. Parke-Davis, 107 Wash. 2d at 597, 733 P.2d at 514 (in order to inhibit defendants from randomly impleading insolvent corporations to reduce their share of presumptive liability, defendants are required to establish the actual market share of impleaded defendants).) 2d 80, 199 P.2d 1.) "Double liability" does not mean that plaintiffs will be able to recover additional damages, or bring more than one action for damages, if market share liability is adopted. According to an affidavit of John Kraas, an employee of defendant Eli Lilly & Company, there were 81 companies which marketed DES in 25 milligram tablets between 1952 and 1953. The company anticipates sales for … Massengill Company, Harvey Laboratories, Inc., and Boyle & Company. Third, in the earlier exceptions the burden is shifted to parties who bear some culpability for causing plaintiff's injury. The Missouri Supreme Court agreed with the arguments of the drug manufacturers that market share liability was unfair, unworkable and contrary to Missouri law and violated the State's public policy. 1920).) The correlation between market share liability and liability under traditional tort principles may not be perfect. Eric Smith Diabetes Specialty Sr. District Sales Manager at Eli Lilly and Company Greater Grand Rapids, Michigan Area 500+ connections Lilly Eli Lilly and Company, Claimant Lilly Canada Eli Lilly Canada Inc. Memorial Claimant’s Memorial, filed on 29 September 2014 Mexico United Mexican States MGH Massachusetts General Hospital MOPOP Manual of Patent Office Practice NAFTA North … Editing by Bruce Goldman. Brown held that liability in the market share theory is not joint and several, rather it is only several. However, we note that market share liability will surely broaden manufacturers' liability exposure because they will need to insure against losses arising from the products of others in the industry as well as their own. Mulcahy equated the theory with a court-constructed insurance plan which requires manufacturers to pay for injuries their product may not have caused. At her deposition, Mrs. Smith described the medication as a “white tablet,” “smaller than an aspirin” to be taken three times a day. Op. (Mulcahy v. Eli Lilly & Co., 386 N.W.2d at 76; Kroll, Intra-Industry Joint Liability: The Era of Absolute Products Liability, 687 Ins.L.J. §§ 300aa-1 through 300aa-34 (Supp.V 1987).) Eli Lilly and Company est un groupe pharmaceutique, classé dixième mondial (en 2010) par le chiffre d'affaires.. 132, 144; Martin v. Abbott Laboratories (1984), 102 Wash. 2d 581, 584, 689 P.2d 368, 381; Collins v. Eli Lilly Co. (1984), 116 Wis. 2d 166, 191, 342 N.W.2d 37, 45.) The court of appeals of New York recently declined to accept Wisconsin's risk contribution theory, believing that it would only be feasible on a limited scale. Moreover, this theory is being accepted in a limited number of jurisdictions and is only being applied to manufacturers of DES or similar products. 132. It is tempting in this case to impose liability based on the fact that these companies profited from the sale of the type of drug which may be responsible for the plaintiff's injuries, regardless of the manufacturers' ability to cover these costs. Market share liability also has the potential to treat plaintiffs who cannot identify the specific manufacturer responsible for *339 the DES maternally ingested more favorably than one who can. The plaintiff must prove that her mother took DES; the DES caused subsequent injuries; the defendant produced or marketed the type of DES taken by plaintiff's mother; and the production and marketing of DES breached a legally recognized duty to the plaintiff. Until such time as the legislature acts, however, this court has a duty to continue developing the common law to keep up with the demands of our changing society. Under market share liability, on the other hand, X, Y and Z would all be named defendants in 100% of the DES cases and each manufacturer would only be liable for its market share of the damages in each case. Most of the Federal courts which have addressed the issue of applying market share liability in a DES case have declined to adopt such a radical departure from the common law of the State in which each sits without a clearer direction from that State's supreme court. There are four current forms of market share theory which the supreme courts of five states have accepted. Subscribe to Justia's Free Summaries Case 1:06-cv-02405-JBW Document 4 Filed 05/30/2006 Page 1 of 2 Smith v. Eli Lilly & Co. Doc. The Sindell court realized that the rule was not flawless and, in Brown v. Superior Court (1988), 44 Cal. The fact that over 300 companies sold a similar product for similar purposes cannot fairly be held to have created a sufficient nexus such that each company can be responsible for the injuries caused by the others' products, even under the unique facts surrounding the approval of the manufacturing of DES. 526 F. Supp. at 39-40, 560 N.E.2d at 341-342 ("adoption of a market share theory will dramatically increase liability exposure * * * [,] dramatically increase [insurance] premiums * * * [and] will likely contribute to diminishing participants in the market as well as research and availability of drugs").) Los Angeles County), No. (See 137 Ill. 2d at 244-45, 148 Ill.Dec. (See 137 Ill. 2d at 253, 148 Ill.Dec. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 23, 52 Ill. Dec. 23, 421 N.E.2d 886.) Instead, this theory apportions "liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large." The majority states that "it is not clear that the drug industry needs this even further amount of encouragement to produce safer drugs, above and beyond the incentives that products liability and negligence laws provide." 1978), is a 1978 decision of the United States Court of Appeals for the Third Circuit that first considered the … 4,974. 830-109. 939 (1987); Comment, Market Share Liability: A New Method of Recovery for D.E.S. The argument thus begs the question. Nevertheless, before getting into the market share issue, we believe that a brief account of the drug's history will be helpful. The drugmaker eked … (137 Ill. 2d at 255, 148 Ill.Dec. However, we do not believe that we should abrogate a fundamental precept of tort law to reach this goal and ignore the effects of adopting market share liability. First, it is not clear that the drug industry needs this even further amount of encouragement to produce safer drugs, above and beyond the incentives that products liability and negligence laws provide. at 145.) Reliance on the facts comprising the 1941 filings is unwarranted unless plaintiff is able to prove that one of the companies in the "small committee" manufactured the DES maternally ingested. at 147-48 (Richardson, J., dissenting) (it is highly speculative that defendant's liability equals the harm actually caused); Fischer, Products LiabilityAn Analysis of Market Share Liability, 34 Vand.L.Rev. UNCT/14/2) Procedural Order No. It is argued that adoption of market share liability in this case will provide incentive to produce safer generic drugs. Each of the manufacturers would be liable in contribution for a percentage of the plaintiff's damages equal to the manufacturers' individual market shares. The plaintiff and appellate court have too broadly interpreted the duty of a drug company and to whom it owes that duty. For example, let us assume that manufacturer X from the above hypothetical, in addition to being held liable for 50% of the damages in all cases in which identification could not be made, was also identified in a number of cases as the manufacturer of the DES which was the cause in fact of the plaintiffs' injuries. (Restatement (Second) of Torts §§ 876(a), (b), at 315 (1979).) ELI LILLY & CO., Leagle, 1988174173IllApp3d1_1174, May 25, 1988. 964 (court determined that under North Carolina law manufacturers of benzidine congener dyes could not be held liable based on market share theory); Sheffield v. Eli Lilly & Co. (1983), 144 Cal. 3d at 1075, 751 P.2d at 487, 245 Cal. We stated that the purpose of res ipsa loquitur is to allow plaintiff to establish negligence by circumstantial evidence when the direct evidence concerning the cause of injury is primarily within the knowledge and control of defendant. Publications 13. 3d at 612, 607 P.2d at 937, 163 Cal. X would in effect be paying for damages caused by Y and Z. I agree with the majority that, if market share liability were adopted, manufacturers who can be causally linked to DES which caused damages in a specific case could incur a disproportionate amount of liability. Dodds and his associates first synthesized the drug in England in 1937. Between 1947 and 1952, approximately 85 companies manufactured DES. at 32, 560 N.E.2d at 334.) L.J. In an effort to avoid duplication of time and effort in determining the sufficiency of the documentation presented, the FDA requested that the drug companies withdraw their NDAs and submit their data jointly in a master file. If more than one defendant is joined or impleaded, damages are determined according to the jury's assignment of liability under Wisconsin's comparative negligence statute. It then went on to give three policy reasons for developing market share liability. Unable to identify the specific manufacturer, plaintiff sued a number of manufacturers who potentially could have produced the vaccine she was given and argued for adoption of a market share liability theory. 155, 200, 561 A.2d 511, 534 (O'Hern, J., dissenting)). We recognized res ipsa loquitur in Kolakowski v. Voris (1980), 83 Ill. 2d 388, 47 Ill. Dec. 392, 415 N.E.2d 397, where the plaintiff was injured while unconscious during surgery and could not identify the negligent party. Smith joined Eli Lilly and Company in 1996 after earning an MBA in finance from the Kelley School of Business at Indiana University. Thus, it is unwarranted to make each responsible for the others' products based on some type of enterprise liability theory. If you wish to see the entire case, please consult PACER directly. (33 Ohio St.3d at 50, 514 N.E.2d at 700.) Rptr. The companies which cannot prove their share will be made to pay the unattributed portion of the damages, thus paying the damages which rightfully belong to companies which are insolvent, not amenable to suit in the jurisdiction or for some other reason are not before the court. Our appellate court was also under the same misconceptions. 132, the California Supreme Court rejected the plaintiff's three bases for her cause of action and instead modified the alternative liability theory, thus fashioning its form of market share liability. The rule also provides that liability is several only, and is not to be inflated if all the manufacturers are not before the court. Other companies were granted summary judgment on all counts of the complaint as they were determined not to be part of the relevant DES market. Once the plaintiff has proven a prima facie case under negligence or strict liability, the burden shifts to the defendant to prove by a preponderance of the evidence that it did not produce or market DES for the prevention of miscarriage during the relevant time period or in the relevant geographical market area. The court concluded that there was insufficient public policy justification to support abandonment of so fundamental a concept of tort law as the requirement that a plaintiff prove, at a minimum, a nexus between wrongdoing and injury. Justice RYAN delivered the opinion of the court: The plaintiff in this appeal alleges that she was injured by the drug diethylstilbestrol (DES), which her mother ingested during pregnancy. The success rate in these cases is considerably less than in DES cases. The drug was not patented by Professor Dodds, but was left available for general production by pharmaceutical companies. 3d at 620-21, 607 P.2d at 942, 163 Cal. To impose liability when it is quite possible that the defendant is not before the court is too speculative. Whether or not there is a correlation sufficient to establish a cause of action is an issue properly for the finder of fact. Four of those courts have sought to remedy the injustice arising from gaps in their common law by replacing the element of causation in fact with some form of market share liability. (Kreitz v. Behrensmeyer (1894), 149 Ill. 496, 502, 36 N.E. The fact that causation in fact has been around a long time similarly fails to address the question. Plaintiff further attempts to support her position by contending that market share liability should be applied because she has maintained a "sufficient connection" between each of the named defendants and the form of the DES which caused her condition. 173 Ill.App.3d at 26, 122 Ill. Dec. 835, 527 N.E.2d 333. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 442-43, 137 Ill. Dec. 635, 546 N.E.2d 580; Stallman v. Youngquist (1988), 125 Ill. 2d 267, 277, 126 Ill. Dec. 60, 531 N.E.2d 355; Note, Market Share Liability: A Plea for Legislative Alternatives, 1982 U.Ill.L.Rev. Thus, market share liability insures that the incentive to produce safe products provided by traditional tort laws will remain effective in situations where identification of a particular wrongdoer is impossible. The appellate court affirmed the trial court's holding as to the products liability count, but reversed the trial court's holding as to the negligence count, holding that the market share theory should apply to both the plaintiff's negligence and strict liability counts. They may rebut this presumption by proving their actual market share and are then only liable for that percentage of the damages. A third reason for the majority's decision is that the majority is not convinced that adoption of market share liability will either provide incentive for production of safe drugs, or encourage drug manufacturers to adopt procedures which would enable plaintiffs to identify culpable parties. Docket for Smith v. Eli Lilly & Company, 3:06-cv-01009-JSW — Brought to you by the RECAP Initiative and Free Law Project, a non-profit dedicated to creating high quality open legal information. 1004 (civil conspiracy, concert of action, alternative liability and enterprise liability rejected); Burnside v. Abbott Laboratories (1985), 351 Pa. Super. If we were to allow courts and juries to apportion damages when reliable information is not available, the clear result would be that the determinations will be arbitrary and there will be wide variances between judgments, without sufficient explanation as to these differences. 132; Lyons v. Premo Pharmaceutical Labs, Inc. (App.Div.1979), 170 N.J.Super. at 41, 560 N.E.2d at 343). Rptr. 1004, 1007, 1018. (83 Ill. 2d at 394, 47 Ill. Dec. 392, 415 N.E.2d 397, 47 Ill. Dec. 392, 415 N.E.2d 397. 1623, 1654 (1981) (adoption of a market share theory will dramatically increase liability exposure and it may discourage development of new products); Comment, Market Share Liability for Defective Products: An Ill-Advised Remedy for the Problem of Identification, 76 Nw. It's free! M. Polelle & B. Ottley, Illinois Tort Law 389 (1985); see also Montgomery Ward & Co. v. United Retail, Wholesale & Department Store *330 Employees of America (1948), 400 Ill. 38, 52, 79 N.E.2d 46. However, though there exist some similarities, the analogy is too tenuous to rely on res ipsa loquitur and alternative liability as a sound basis for adopting the theory. The market share liability theory disregards these precedents and turns manufacturers into insurers of their own products and products made by others in the industry. 19, 427 A.2d 1121, which refused to adopt alternative liability or enterprise liability in a DES action. The defendants who do appear will have a difficult enough time to establish their market shares. For example, if any of the defendants in this case had taken precautions to insure that their DES was not defective, those defendants would have altered their DES to correct the defects before marketing it. 305 Or. (See 137 Ill. 2d at 256-57, 148 Ill.Dec. (173 Ill. App.3d 1, 122 Ill. Dec. 835, 527 N.E.2d 333.) View Ben Smith’s full profile. If those plaintiffs prevailed in their suits, X would be liable for all the damages in those cases. Following completion of discovery, 14 defendants filed a joint motion for summary judgment. Many of those defendants who have been named are no longer in business or have filed motions challenging jurisdiction and for these companies especially it is unlikely that records will be available to establish their share of any market. Later that year the FDA banned the marketing of DES for use by pregnant women. 1 5 jveroneau@cov.com aberengaut@cov.com jmsmith@cov.com All correspondence and documents in this arbitration will be delivered to the addresses of counsel for the Claimant. However, to ameliorate any disproportionate allocation of liability that could occur from so-called "double liability," I would allow a manufacturer who has been held liable in a "cause in fact" case a right to recover contribution from other DES manufacturers. Due to the fungible nature of the product, after it leaves the control of the manufacturers they have very little ability to keep track of in what market and by whom the drug will ultimately be used. Each of the four courts which have adopted some form of market share liability has criticized and ultimately rejected in whole or in part the theory as developed in the other jurisdictions. The thrust of these causes of action is that the drug companies failed to properly test DES and to adequately warn of its dangers. at 144; Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. The court also failed to define what constitutes a "substantial share" of the market, one which is sufficient to shift the burden of proof to the defendant. Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 246-47, 560 N.E.2d 324, 334-35 (1990) (market share theory unworkable and against public policy); Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986) (market share theory is contrary to Iowa public policy); Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. Concert of action applies when a tortious act is done in concert with another or pursuant to a common design, or a party gives substantial assistance to another knowing that the other's conduct constitutes a breach of duty. We do not believe that this or the supposed safety incentives provided are sufficient to adopt the theory. This court explained: The plaintiff in this case has alleged that all of the DES manufactured by the defendants was identical and shared a common defect, and that plaintiff developed cancer as a result of this defect in the DES. She was then transferred to the University of Illinois Hospital, where she underwent extensive surgery. 1988 DES Case: Shirkey v. Eli Lilly & Co. Anabolic steroids in meat and premature telarche, The case of diethylstilbestrol treated veal contained in homogenized baby-foods in Italy, Age at onset of puberty and on postpubertal hormone levels in DES Sons, Sex-dimorphic behaviour development in the human, Drug contamination with diethylstilbestrol, Pseudoprecocious Puberty in Girls as a Result of Estrogen Ingestion, Signs of Sexual Precocity in a Male Infant due to Estrogenic Ointment, Gynecomastia with pigmentation in a four year old male following stilbestrol exposure. Citations are also linked in the body of the Featured Case. (See Schmidt, 44 Ill. 2d at 405, 256 N.E.2d 6; Tiffin v. Great Atlantic & Pacific Tea Co. (1959), 18 Ill. 2d 48, 60, 162 N.E.2d 406.) The plaintiff before us alleges that after extensive discovery she has been unable to identify the manufacturer of the DES her mother ingested. Eli Lilly. In res ipsa loquitur and alternative liability situations, all parties who could have *340 been the cause of the plaintiff's injuries are joined as defendants. However, we are not convinced that utilization of market share liability in suits against manufacturers of DES will have such an effect, though we recognize some courts and commentators believe market share liability is necessary for promotion of this safety goal. I therefore dissent from the majority's outright rejection of market share liability. Neither of these pieces of "evidence" convince me that it would be impossible to accurately establish a manufacturer's national market share as required by the Hymowitz theory of market share liability. As is clearly demonstrated in these DES cases, the manufacturers are in no better position than the plaintiffs to identify the culpable party. U.L.Rev. Massengill Co. Hayes & Power, Chicago (John D. Hayes, Joseph A. (Sindell, 26 Cal. 983; see also Torres v. Walsh (1983), 98 Ill. 2d 338, 347, 74 Ill. Dec. 880, 456 N.E.2d 601; People ex rel. 137 Ill.2d 222 - SMITH v. ELI LILLY & CO., Supreme Court of Illinois. Better Buy: GlaxoSmithKline vs. Eli Lilly These two big drugmakers are in very different positions right now. Justice CLARK, concurring in part and dissenting in part: I agree with the majority that the appellate court should not have adopted the theory of market share liability set forth by the Washington Supreme Court in Martin v. Abbott Laboratories (1984), 102 Wash. 2d 581, 689 P.2d 368. For instance, in this case part of the problem in identification may be attributed to the Field Clinic for its labeling of the drug as only "Tab 98" and to the laws which require maintenance of records for only a short period of time. In 1952, the FDA declared that DES was no longer a new drug within the meaning of the Federal Food, Drug, and Cosmetic Act, and was therefore considered safe for general use. Smith denied McCalment's protest without explanation. That data doesn't exist").) However, where manufacturers can escape liability because it is impossible for a plaintiff to prove causation in fact, traditional tort laws do not provide any incentive to produce safe drugs. The plaintiff, Sandra Smith, was born on July 13, 1953, in Chicago, Illinois. (See also Miller & Hancock, Perspectives on Market Share Liability: Time for a Reassessment?, 88 W.Va.L.Rev. The question at issue in this case is "whether, in a negligence and strict liability cause of action, Illinois should substitute for the element of causation in fact a theory of market share liability when identification of the manufacturer of the drug that injured the plaintiff is not possible." Twelve defendants were able to exculpate themselves on the basis that they could not have manufactured the DES that plaintiff's mother took because their product either was not of the same dosage, color or type, or was not sold to the Field Clinic. The presumptive share of the defendants that are unable to establish their actual market share is adjusted upward so that 100% of the market is accounted for. Thus by our adopting market share liability, the goal of warning manufacturers to produce safer products likely will not reach a wide array of producers. The doctor gave Mrs. Smith a prescription to be filled at the clinic pharmacy for "Tab 98." Accordingly, a working committee of four companies was formed which collected all the data, prepared the master file and submitted it to the FDA. (386 N.W.2d at 76, quoting F. Pollock, The Law of Torts 455 (11th *335 ed. 99, 101 (negligence in the air is not a basis for imposing liability).) The principle of causation in fact, like the principles of contributory negligence, privity of contract and negligence in products liability cases, "is not an end of the legal system, but rather the means by which the legal system achieves its purposes" (Shackil v. Lederle Laboratories (1989), 116 N. J. 3d 588, 607 P.2d 924, 163 Cal. of Supreme Court of Illinois opinions. After joining the manufacturers, the burden of proof shifts to defendants to demonstrate that they could not have manufactured the DES that caused plaintiff's injuries. Mrs. Smith obtained her DES prescription from the Field Clinic pharmacy. at 149 (Richardson, J., dissenting) (imposition based on defendant's perceived wealth is an unsound principle and creates a two-tiered system of justice); Kroll, Intra-Industry Joint Liability: The Era of Absolute Products Liability, 687 Ins.L.J. 195, 210 (1985). 3. Similarly, Y and Z would each be liable for 100% of the damages in 25% of the DES daughter cases. In addition to market share liability, most plaintiffs in the DES cases have argued that enterprise liability or alternative liability, as well as a concert of action and a conspiracy theory, should apply to extend liability to a group of defendants. 3d 588, 607 P.2d 924, 163 Cal. Plaintiff here argues that the difficulty the trial judge in Los Angeles experienced could be attributed to the uncooperativeness of the defendants. As noted above, the appellate court likewise adopted a theory of market share liability, although different from that applied by the trial court, and extended its application to the negligence count. Minority Business coordinator, manager of investor relations and director of corporate communications share theory which Supreme... First, as between an innocent plaintiff and a federal District court, number... ( negligence in the body of the litigants defendant will be unable to identify the culpable is. Plaintiffs have pursued the application of that theory. Ill. 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