Facts
- Rita Rene Martin developed clear cell adenocarcinoma of the vagina at age 17 after in utero exposure to diethylstilbestrol (DES).
- Rita’s mother, Shirley Ann Martin, was prescribed and ingested DES during pregnancy from about May 1962 until Rita’s birth on October 4, 1962.
- DES for pregnancy use was produced and sold by many manufacturers as a chemically identical product; prescriptions could be filled with any available manufacturer’s supply, and the pills were not traceable to a particular producer after distribution.
- By the early 1970s, studies linked prenatal DES exposure to clear cell adenocarcinoma and related injuries in daughters.
- Shirley Martin knew the dosage and general characteristics of the DES she took but could not identify the manufacturer of the specific DES ingested.
- The plaintiffs sued numerous DES manufacturers (and related entities), alleging negligent manufacture and marketing and asserting that industry conduct contributed to Rita’s injuries.
Issues
- Whether DES plaintiffs who cannot identify the specific manufacturer may recover under alternative liability, concert of action, or enterprise liability.
- Whether Washington should recognize a market share (risk-contribution) theory for DES cases with unidentifiable manufacturers.
- Whether a company that acquired a DES manufacturer’s business may be liable as a corporate successor for DES-related injuries.
Decision
- The court rejected alternative liability as a basis for DES recovery because the doctrine’s prerequisites were not satisfied in this context.
- The court declined to impose liability on the asserted record under concert of action or enterprise liability theories.
- The court recognized a market share liability cause of action for DES cases where product identification is not possible.
- Under this theory, a plaintiff may proceed without identifying the specific manufacturer if the plaintiff sues manufacturers who produced and marketed DES for pregnancy use in the relevant time and geographic market and makes a threshold showing that the mother ingested DES.
- Each defendant’s liability is several and limited to its proven percentage share of the relevant market; a defendant may avoid liability by proving it could not have made the DES that caused the plaintiff’s injury (e.g., no sales in the market, or no production of the relevant form/dosage/time).
- The court imposed corporate successor liability on an acquiring company for DES injuries tied to the predecessor’s DES business (with a dissent on this point).
- The judgment was affirmed in part and reversed in part, and the matter was remanded for further proceedings consistent with the market share framework.
Legal Principles
- Traditional identification-based causation may be relaxed in a narrow class of cases involving a fungible product, long latency injuries, and practical inability to identify the responsible manufacturer.
- Alternative liability does not apply where it is not shown that all responsible actors are before the court and that one of the joined defendants necessarily caused the harm.
- Market share liability (as adopted) permits recovery for DES-related injuries by allocating responsibility according to each defendant’s contribution to the risk of harm, measured by its market share in the relevant time and place.
- A plaintiff must establish (i) an injury consistent with in utero DES exposure and (ii) that the mother ingested DES; the plaintiff must also join appropriate manufacturers who marketed DES for pregnancy use in the relevant market.
- A defendant may exculpate itself by showing it did not manufacture or market DES in a manner that could have caused the plaintiff’s injury, and any remaining liability is apportioned in proportion to market share; the plaintiff’s recovery is limited to the aggregate market shares of defendants actually joined.
- Corporate successor liability may attach to an acquiring company for claims arising from a predecessor’s DES business where otherwise the risk-spreading and remedial aims of the doctrine would be defeated.
Conclusion
The Washington Supreme Court created a limited market share liability rule for DES cases to allow recovery when manufacturer identification is impossible, rejected alternative liability and other broad collective theories on the record, apportioned damages by market share with an exculpation opportunity, and recognized successor liability for a corporate acquirer connected to a predecessor’s DES production.