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Facts[]

Sindell's mother was issued the drug DES during pregnancy in an attempt to limit the risk of miscarriage. However, it resulted in Sindell developing cancer. This happened to many women and their daughters throughout the United States at this time, as the drug was found to be carcinogenic. Sindell cannot identify the exact company that produced the drug that her mother was given, as more than 200 companies produced the same drug. She is suing five of the biggest producers.

Issue[]

  1. If it is clear that a group of defendants were negligent, but not clear that any of them caused harm to the plaintiff are they liable and if so to what extent?

Decision[]

Judgment for the plaintiff.

Reasons[]

Mosk, writing for the majority, adopts radically new reasoning. He states that in cases like this where the plaintiff cannot possibly prove which specific company caused the harm, it is not fair that the defendants can get off merely because proof is impossible. They state that when there is an innocent plaintiff and negligent defendants, the latter must bear the cost of the injury – particularly here where the companies have deep pockets. Therefore they hold that the defendants are liable for the injury, and they assess damages based on the percentage of the total market of DES that each individual defendant produces. The court reasons that although the companies might not have harmed Sindell in particular, these damages are fair as they are approximate measures that they have caused by their production of DES. They also say that the defendants can turn around and sue other producers for their share. Finally, they say that if companies that can prove on a balance of probabilities that they did not cause the harm to the particular plaintiff then they would be excluded from liability.

Richardson, in the dissent, vehemently disagrees. He says that this is a large departure from the common law, and that the probability that any one of these five companies caused the injury is miniscule. This sidesteps the essential element of tort law – connecting the plaintiff and the defendant. Instead, this "sprinkles the rain of liability" over all who maybe tortfeasors. He also says that the "deep pockets" argument is against public policy, because it effectively creates a two tiered system of law – one for the rich, and one for the rest. Finally, he argues that a decision which so obviously departs from the common law like this must be given by the legislature.

Ratio[]

When a particular class of defendants can be identified as being responsible for an injury, but the specific party that caused the injury cannot be determined, then all of the defendants must share liability for the damages proportionally to the probability that they caused the injury.

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