. Procedural History: Plaintiffs appeal in the context of summary judgment motions dismissed because the plaintiffs could not identify the manufacturer of the drug that allegedly injured them. Defendants argue that the revival of barred DES claims was unconstitutional as a denial of both due process and equal protection, under the State and Federal Constitutions. Parallel behavior, the major justification for visiting liability caused by the product of one manufacturer upon the head of another under this analysis, is a common occurrence in industry generally. . In 1941, the Food and Drug Administration (FDA) approved the new drug applications (NDA) of 12 manufacturers to market DES for the treatment of various maladies, not directly involving pregnancy. A narrower basis for liability, tailored more closely to the varying culpableness of individual DES producers, is the market share concept. To establish its contours requires a brief recounting of … In DES cases, where it is impossible to determine which D manufacturer's DES caused any given P's injuries, any D manufacturer that participated in marketing DES may be held liable proportional to its market share of the national DES market. Moreover, because defendants allege no impairment of a fundamental right, the Legislature has substantial leeway in making classifications in this area of "'economics and social welfare.'". After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. On the Statute of Limitations issue, the trial court also granted plaintiffs' cross motions, dismissing defendants' affirmative defenses that the actions were time barred. The court answered yes, modification of the existing common law regarding logistical causation was required to find liability. Four years after Sindell v Abbott Labs, the Wisconsin Supreme Court followed with Collins v Lilly & Co. . In Summers, plaintiff and the two defendants were hunting, and defendants carried identical shotguns and ammunition. Sorry, your blog cannot share posts by email. When faced with the novel identification problem posed by DES cases, it is preferable to adopt a new theory that apportions fault rationally, rather than to contort extant doctrines beyond the point at which they provide a sound premise for determining liability. Nevertheless, because liability here is based on the over-all risk produced, and not causation in a single case, there should be no exculpation of a defendant who, although a member of the market producing DES for pregnancy use, appears not to have caused a particular plaintiff's injury. The dissenter misapprehends the basis for liability here. If the market share of the absent defendant cannot be shown, the remaining defendants who cannot prove their market shares have their shares inflated to provide plaintiff with full recovery. The trial court denied all motions and allowed cross motions dismissing defenses that … Read Full Brief | Leave … We have not by the backdoor adopted a theory of concerted action. From Cal.2d, … The paradigm of alternative liability is found in the case of Summers v Tice . Various defendants argue here that although they produced DES, it was not sold for pregnancy use. Instead, we choose to apportion 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. As we noted in Bichler v Lilly & Co . We understand that, as a practical matter, this will prevent some plaintiffs from recovering 100% of their damages. While not class actions, these cases are representative of nearly 500 similar actions pending in the courts in this State; the rules articulated by the court here, therefore, must do justice and be administratively feasible in the context of this mass litigation. Thus the pregnant women who took DES generally never knew who produced the drug they took, and there was no reason to attempt to discover this fact until many years after ingestion, at which time the information is not available. We also hold that the Legislature's revival for one year of actions for injuries caused by DES that were previously barred by the Statute of Limitations is constitutional under the State and Federal Constitutions. ... “In those cases where the released offender poses a predictable threat of harm to a named or readily identifiable victim, a … Parallel activity, without more, is insufficient to establish the agreement element necessary to maintain a concerted action claim. ... Hymowitz v. Eli Lilly & Co. Posted on November 18, 2016 | Torts | Tags: Torts, … Rule of Law and Holding This is not a novel conclusion; in the last decade a number of courts in other jurisdictions also have concluded that present theories do not support a cause of action in DES cases. The present appeals are before the court in the context of summary judgment motions. Tag Archives: Torts Case Briefs. Thus our market share theory cannot be founded upon the belief that, over the run of cases, liability will approximate causation in this State. We have heeded the practical lessons learned by other jurisdictions, resulting in our adoption of a national market theory with full knowledge that it concedes the lack of a logical link between liability and causation in a single case. 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