## Facts

- DES (diethylstilbestrol) is a synthetic estrogen widely used beginning in the 1940s, including for certain pregnancy-related complications.
- Researchers later associated in utero DES exposure with serious reproductive harms, including a rare cancer and other reproductive disorders; DES use during pregnancy ceased thereafter.
- Sutowski alleged injury from in utero DES exposure and sued Eli Lilly & Co. and other DES manufacturers.
- More than 200 companies manufactured DES, and the product was fungible; due to the passage of time, Sutowski could not identify the specific manufacturer of the DES ingested by her mother.
- Sutowski sought to proceed under a market-share liability theory that would allocate liability among manufacturers based on their market shares.

## Issues

1. Whether Ohio recognizes market-share liability as a viable theory of recovery in a DES products-liability action when the plaintiff cannot identify the manufacturer of the injurious product.

## Decision

- The Supreme Court of Ohio answered the certified question in the negative.
- The court held that market-share liability is not available in Ohio products-liability actions.
- The matter was returned to the certifying federal district court for further proceedings consistent with that answer.

## Legal Principles

- In Ohio products-liability actions, a plaintiff must prove causation in fact, including identifying the defendant as the manufacturer of the product that caused the injury.
- Ohio does not permit liability to be imposed based solely on a defendant’s participation in the market for a fungible product, without proof linking that defendant’s product to the plaintiff’s injury.
- Adoption of a collective, market-based apportionment scheme is treated as a major policy change more appropriately addressed by the legislature than by judicial decisionmaking.
- Concerns about fairness and speculative administration (e.g., defining the relevant market and calculating historical market shares) support retaining traditional causation requirements even when they may bar recovery.

## Conclusion

Ohio rejects market-share liability in DES and other products-liability cases; plaintiffs who cannot identify the manufacturer responsible for their injury cannot use market participation as a substitute for proof of causation.


Sutowski v. Eli Lilly & Co., 82 Ohio St. 3d 347, 696 N.E.2d 187 (Ohio 1998)