By Donald Zuhn -- In anticipation of the upcoming oral argument in the rehearing en banc of Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., scheduled for December 7th, we have been reviewing a number of the briefs submitted by various amici. Other courts have looked to these underlying principles when reaching their conclusion of whether or not to recognize market share liability. Another underlying principle of products liability law is to enhance safer production of goods. (Miller & Hancock, Perspectives on Market Share Liability: Time for a Reassessment?, 88 W.Va.L.Rev. … She was then transferred to the University of Illinois Hospital, where she underwent extensive surgery. (emphasis in orginal.) v. 81, 103-04 (1985).) It noted that a trial court in Ferrigno v. Eli Lilly & Co. (1980), 175 N.J.Super. I therefore dissent from the majority's outright rejection of market share liability. (116 Wis.2d at 189, 342 N.W.2d at 48.) ELI LILLY & CO., Leagle, 1988174173IllApp3d1_1174, May 25, 1988. As illustrated in this case, the majority of plausible defendants have not been or cannot be brought before the court. But see Dyback v. Weber (1986) 114 Ill. 2d 232, 239, 102 Ill. Dec. 386, 500 N.E.2d 8 (in light of comparative negligence, plaintiff's freedom from contributory negligence is no longer a requirement in order to make out a prima facie case under res ipsa loquitur).) 963, 994 (1978). (386 N.W.2d at 76, quoting F. Pollock, The Law of Torts 455 (11th *335 ed. Moreover, Sindell failed to specify how the market for DES can be allocated fairly when DES has been prescribed for uses other than as a miscarriage preventative. In March 1953, he prescribed DES, which Mrs. Smith took throughout the remainder of her pregnancy. 195, 210 (1985). Thus, as the majority notes, where necessary to avoid injustice, courts have relaxed the requirement that a plaintiff prove causation in fact by adopting doctrines such as res ipsa loquitur and alternative liability. (Martin, 102 Wash. 2d at 601-02, 689 P.2d at 380-81; but see Brown v. Superior Court, 44 Cal. Just as the previous theories have not been embraced by subsequent courts, it is unlikely that New York's theory will receive broad acceptance. Shackil v. Lederle Laboratories (1989), 116 N. J. Therefore, this theory can be substantially unfair to any company that is unable to prove its market share, especially if that company is small. The trial court granted the drug companies’ joint motion for summary judgment as to counts I through IX of plaintiff’s second-amended complaint, but denied the motion as to count X alleging a strict liability cause of action based upon the market share theory. Plaintiff also argues that the drug manufacturers are liable for their breach of duty to a foreseeable plaintiff. The result would likely be that, even though common sense dictates that other companies are responsible, market share liability makes those companies which are unable to establish their market share liable for a wholly speculative and disproportionate amount of the damages. Cooney & Conway, Chicago (Kathy Byrne and Kevin J. Conway, of counsel), for amicus curiae Illinois Trial Lawyers Ass'n. They further argue that the expansions in tort law are having the perverted results of eliminating production of certain useful and necessary drugs, and dramatically increasing insurance costs such that some companies either can no longer obtain insurance or cannot pass the costs on to consumers. Du Pont De Nemours & Co. (E.D.N.Y. (Sindell, 26 Cal. (See Washington *344 v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108-09, 5 Ill. Dec. 143, 361 N.E.2d 282; Palsgraf v. Long Island R.R. Plaintiffs who are able to identify the manufacturer of the DES that caused their injuries, on the other hand, will be able to recover 100% of their damages under traditional tort law. This information was derived from medical and pharmaceutical industry references. It concluded that the injustice resulting from delays in recoveries and inconsistent results militated against adoption of the theory. No tags have been applied so far. (See generally Note, A Question of Competence: The Judicial Role in the Regulation of Pharmaceuticals, 103 Harv. They may rebut this presumption by proving their actual market share and are then only liable for that percentage of the damages. (137 Ill. 2d at 263-64, 148 Ill.Dec. (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. New York also criticized and rejected the California and Washington versions of market share liability, noting the difficulty of determining market share. It was upon the request of the FDA that the small group convened to present a master file of data on behalf of the rest of the industry. As is clearly demonstrated in these DES cases, the manufacturers are in no better position than the plaintiffs to identify the culpable party. View Case; Cited Cases; Citing Case ; Citing Cases . A defendant can exculpate itself only through proof that it did not participate in the marketing of DES for pregnancy use. (67 Ill. 2d at 358, 10 Ill. Dec. 484, 367 N.E.2d 1250.) The appellate court accepted plaintiff's notion of duty, reasoning in part that drug manufacturers "owe a special duty of care to the public." 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. By Donald Zuhn -- In anticipation of the upcoming oral argument in the rehearing en banc of Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., scheduled for December 7th, we have been reviewing a number of the briefs submitted by various amici. The court's decision was further influenced by the fact that Congress had already established legislation to compensate vaccine-injured plaintiffs. (Shackil v. Lederle Laboratories (1989), 116 N. J. 593, 599 ("market share theory unquestionably represe from the traditional concept of causation" and there was no indication that Florida would abandon such a fundamental principle); Pipon v. Burroughs-Wellcome Co. (D.N.J.1982), 532 F. Supp. The court was wary "of setting loose, for application in the hundreds of cases pending in this State, a theory which requires the fact finder's individualized and open-ended assessment of the relative liabilities of scores of defendants in every case." However, liability under the Hymowitz theory is not inflated to account for absent manufacturers, is several only, and is not imposed on a pro rata basis. 300, 321-23 (1981) (increasing liability has prompted insurers to dramatically *342 increase premiums and they are reluctant to insure particularly risky industries; this in turn has resulted in higher prices).) To hold a manufacturer liable for failure to warn of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer the virtual insurer of the product, a position rejected by this court in Suvada. The information utilized at that time was also influential in securing approval in 1947 for use of DES to prevent miscarriages. 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. (See 137 Ill. 2d at 256-57, 148 Ill.Dec. The record establishes that Tab 98 designated 25 milligram tablets of DES. Though it is too early to determine how Hymowitz will be received, it certainly is the most radical in its departure from established tort principles and it is admittedly flawed in that it cannot equate liability to actual harm caused. (Sindell, 26 Cal. 939 (1987); Comment, Market Share Liability: A New Method of Recovery for D.E.S. The intended result of the rule is that each manufacturer's liability for an injury is approximately equivalent to the damages caused by the DES it manufactured. Other than the overall concept of market share liability, which will be addressed later in this opinion, the rule as specifically developed in Sindell has been extensively criticized, and as of this date only one Federal district court has adopted it in the same form. Diethylstilbestrol is a synthetic substance which duplicates the activity of estrogen, a female sex hormone crucial to sexual development and fertility. The court-developed exception was codified in Restatement (Second) of Torts, section 433B, and reads as follows: As noted, every court which has addressed the issue has held, for a number of reasons, that alternative liability does not apply to DES cases. 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. at 150 (Richardson, J., dissenting) (incidence of cancer is estimated at one-tenth of one percent to four-tenths of one percent), though the plaintiff contests these assertions). Click the citation to see the full text of the cited case. Standard procedure at the FDA required the filing of a new drug application (NDA), which included clinical data establishing the drug's safety, its chemical composition, methods of manufacture, the proposed uses of the drug and proposed labeling. 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. (See, e.g., Alvis, 85 Ill. 2d at 24-25, 52 Ill. Dec. 23, 421 N.E.2d 886 (replacing contributory negligence with comparative negligence); Suvada, 32 Ill. 2d at 623, 210 N.E.2d 182 (abolishing requirements of privity in contract and negligence in products liability actions).) Counts VII and VIII sound in conspiracy and pray for assessment of damages on various bases of concerted action, joint and several liability and joint enterprise liability. 3d at 611, 607 P.2d at 936, 163 Cal. at 36, 560 N.E.2d at 338.) The majority apparently believes that market share liability will increase liability exposure in three ways. App. Court Description: ORDER denying 57 Defendant's Motion for Summary Judgment - For the reasons explained herein, the Court DENIES Lilly's Motion for Summary Judgment on Mr. Smiths claim for disparate pay based on his 2005 performance. Case 1:06-cv-02405-JBW Document 4 Filed 05/30/2006 Page 1 of 2 Smith v. Eli Lilly & Co. Doc. 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. See Fischer, Products Liability An Analysis of Market Share Liability, 34 Vand.L.Rev. Between 1947 and 1952, approximately 85 companies manufactured DES. The manufacturers were only required by law to maintain records for five years and many manufacturers have either gone out of business or destroyed their records or have only partial records available. In Sindell, Justice Richardson, joined by two other justices, dissented, arguing that the majority was abandoning a traditional tort requirement for the creation of a new, modified, industry-wide tort. Those who cannot meet this task but desire to reduce their potential liability will have the difficult burden of establishing the shares of manufacturers not before the court. A number of circumstances contribute to the barrier in establishing causation in fact in DES cases. 132. 609, 632-33 (1982) (arguing further that the theory exposes defendants to double liability, first to plaintiffs who can identify them as the causal party, and again to plaintiffs who cannot); Comment, The Application of a Due Diligence Requirement to Market Share Theory in DES Litigation, 19 J.L. Rptr. 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. Let us assume that there were only three manufacturers of DES: manufacturer X, who manufactured 50% of the DES market, and manufacturers Y and Z, who each manufactured 25% of the DES market. Acceptance of market share liability and the concomitant burden placed on the courts and the parties will imprudently bog down the judiciary in an almost futile endeavor. 00:23 This declaration meant that any manufacturer could market the drug without submitting additional data to the FDA concerning its safety and effectiveness. at 23, 560 N.E.2d at 325.) 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. The success rate in these cases is considerably less than in DES cases. Post was not sent - check your email addresses! Therefore, although the plaintiff knows the color, size and dosage of the drug her mother took, she is unable to identify the specific manufacturer of the product. ELI LILLY & COMPANY et al., Appellants. Many of these companies are no longer in existence, having merged with other concerns or gone into liquidation. Further exacerbating the problem is the fact that during the 25 years that DES was used to treat pregnancy-related problems, as many as 300 companies manufactured the drug. 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. The remaining eight defendant manufacturers included Abbott Laboratories, Eli Lilly & Company, Premo Pharmaceutical Laboratories, Inc., Carroll Dunham Smith Pharmacal Company, William H. *327 Rorer, Inc., S.E. 32; Nutt v. A.C. & S. Co. (Del.Super. In late 1941, the FDA approved the production and marketing of DES *10 for purposes unrelated to pregnancy. However, it rejected the Sindell rule which the trial court had adopted and instead adopted the market share liability theory as it was recognized in Martin v. Abbott Laboratories (1984), 102 Wash. 2d 581, 689 P.2d 368. And while Eli Lilly's trailing annual dividend yield is less than GlaxoSmithKline's at 1.62%, the former's dividend has grown steadily since 2018, whereas the latter's has ebbed. 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. For the reasons set forth below, we affirm in part and reverse in part and remand the cause for further proceedings. (Zafft v. Eli Lilly & Co. (Mo.1984), 676 S.W.2d 241, 246.) at 37, 560 N.E.2d at 339.) SMITH v. ELI LILLY & CO. Email | Print | Comments (0) Nos. The plaintiff need only sue one drug company and that company need not constitute a substantial share of the market. Cir. … continue reading the full paper SMITH v. ELI LILLY & CO., on Leagle. The defendants who took precautions and modified their DES, therefore, could not be held liable under market share liability. (See Sindell, 26 Cal. (Hymowitz, 73 N.Y.2d at 512, 539 N.E.2d at 1078, 541 N.Y.S.2d at 950.) Later that year the FDA banned the marketing of DES for use by pregnant women. The court also addressed the plaintiff's argument that there was a trend in New Jersey to relax the causation requirement. 173 Ill. App.3d at 18, 122 Ill. Dec. 835, 527 N.E.2d 333; McCormack v. Abbott Laboratories (D.Mass.1985), 617 F. Supp. SmithKline Corp. v. Eli Lilly and Co., 575 F.2d 1056 (3d Cir. Did not outrightly reject the market share as the following hypothetical illustrates, this assumption is not! For Sandra Smith was not unusual against two DPT manufacturers in the earlier exceptions the burden of to... Then went on to give three policy reasons for developing market share adequate is. 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