AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
Sandra SMITH, Appellee,
v.
ELI LILLY & COMPANY et al., Appellants.
Supreme Court of Illinois.
*325 Richard C. Bartelt, of Wildman, Harrold, Allen & Dixon, Chicago, and Stephen E. Scheve and Laura D. Stith, of Shook, Hardy & Bacon, Kansas City, Mo., for appellant Eli Lilly & Co.
Hugh L. Moore, of Lord, Bissell & Brook, Chicago, for appellant Abbott Laboratories.
Perry L. Fuller, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for appellant William H. Rorer, Inc.
Chadwell & Kayser, Ltd., and Connelly, Mustes, Palmer & Schroeder (Bruce C. Howard, of counsel), Chicago, for appellant Premo Pharmaceutical Labs.
James T. Ferrini and Lisa Marco Kouba, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, for appellant C.D. Smith Pharmacal.
Burditt, Bowles & Radzius, Chtd., Chicago (Robert G. Epsteen and Richard E. Favoriti, of counsel), for appellant Boyle & Co.
Grotefeld & Associates, Chtd., Chicago (William Stewart Grotefeld, of counsel), for appellant S.E. Massengill Co.
Hayes & Power, Chicago (John D. Hayes, Joseph A. Power, Jr., and David A. Novoselsky, of counsel), for appellee.
James C. Murray, Jr., Kirk T. Hartley and Marcy K. Weaver, of Katten, Muchin & Zavis, Chicago, for amicus curiae Illinois Mfrs' Ass'n.
Cooney & Conway, Chicago (Kathy Byrne and Kevin J. Conway, of counsel), for amicus curiae Illinois Trial Lawyers Ass'n.
Justice RYAN delivered the opinion of the court:
The plaintiff in this appeal alleges that she was injured by the drug diethylstilbestrol (DES), which her mother ingested during pregnancy. She seeks relief against defendant DES manufacturers. The issue is whether, in a negligence and strict liability cause of action, Illinois should substitute for the element of causation in fact a theory of market share liability when identification of the manufacturer of the drug that injured the plaintiff is not possible. The trial court granted defendants' motion for summary judgment as to various counts of the complaint, including a negligence count, but denied the defendants' motion as to the strict products liability count and adopted the market share liability theory developed in Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132. The appellate court affirmed the trial court's holding as to the products liability count, but reversed the trial court's holding as to the negligence count, holding that the market share theory should apply to both the plaintiff's negligence and strict liability counts. (173 Ill. App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333.) 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. The appellate court affirmed the trial court's entry of summary judgment for defendants on the other counts. We granted defendants' petition for leave to appeal (107 Ill.2d R. 315).
*326 I. FACTS
The plaintiff, Sandra Smith, was born on July 13, 1953, in Chicago, Illinois. In 1978, she was admitted to the Ravenswood Hospital in Chicago, where she underwent a dilation and curettage, cervical biopsy, and an excisional biopsy of the vaginal wall. The biopsy revealed that plaintiff had a form of cancer known as clear cell adenocarcinoma of the vagina. She was then transferred to the University of Illinois Hospital, where she underwent extensive surgery. Plaintiff alleges that the DES prescribed for her mother while plaintiff was in utero caused the cancer.
Elizabeth Smith, plaintiff's mother, had a history of difficulty with pregnancy before she gave birth to Sandra. Therefore, in early 1953, when she learned of her pregnancy, she went to the Field Clinic in Chicago and consulted with Dr. Jack E. Davis regarding her condition. The doctor gave Mrs. Smith a prescription to be filled at the clinic pharmacy for "Tab 98." The practice at the Field Clinic was to store and dispense drugs by number, rather than by name. The record establishes that Tab 98 designated 25 milligram tablets of DES. Mrs. Smith continued to take DES tablets daily up until the time she gave birth to Sandra. Dr. Davis attended Mrs. Smith throughout her pregnancy but at the time this suit was filed he was deceased.
The records recovered from the Field Clinic identify numerous companies which supplied drugs to the clinic, some of which were also suppliers of DES, but these are insufficient to match the company with the drug dispensed to the plaintiff's mother. The person responsible for purchasing the pharmaceutical products stocked at the clinic's pharmacy had also died by the time this suit was filed. 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.
In 1980, plaintiff filed her initial complaint naming as defendants 138 drug companies. According to an affidavit of John Kraas, an employee of defendant Eli Lilly & Company, there were 81 companies which marketed DES in 25 milligram tablets between 1952 and 1953. This information was derived from medical and pharmaceutical industry references. Of the 81 potential manufacturers of the DES taken by plaintiff's mother, 63 were not named in the complaint. Of the 138 companies named, 70 filed appearances. Motions were filed by a number of named defendants attacking jurisdiction, asserting changes in corporate structure or ownership that would bar successor liability, or charging error of identity. Twenty companies remained in the suit after these motions were resolved.
In November 1982, plaintiff filed a second amended complaint consisting of 11 counts. Counts I through VI sound in negligence, strict liability, breach of express warranty, fraud, breach of implied warranty, and violation of the Federal Food, Drug, and Cosmetic Act. 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. Counts IX and X allege theories of negligence and strict liability, respectively, and invoke market share as the means for apportioning damages. The thrust of these causes of action is that the drug companies failed to properly test DES and to adequately warn of its dangers. The last count is a tort action against the Field Clinic. There are apparently no motions pending on this count.
Following completion of discovery, 14 defendants filed a joint motion for summary judgment. Some of these defendants and a number of others filed individual motions for summary judgment on the ground that the plaintiff's mother did not use their products. Twelve defendants were able to exculpate themselves on the basis that they could not have manufactured the DES that plaintiff's mother took because their product either was not of the same dosage, color or type, or was not sold to the Field Clinic. 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. Massengill Company, Harvey Laboratories, Inc., and Boyle & Company.
The trial court granted the joint motion for summary judgment on counts I through IX of the second amended complaint. However, the court denied the motion with respect to count X, the strict liability action, and adopted market share liability, based on the theory that the California Supreme Court articulated in Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132. The defendants appealed the denial of their motion for summary judgment as to count X and plaintiff cross-appealed the trial court's grant of summary judgment as to counts I through IX. As noted above, the appellate court likewise adopted a theory of market share liability, although different from that applied by the trial court, and extended its application to the negligence count. The appellate court affirmed the dismissals of the other counts. The defendants filed a petition for leave to appeal to this court based on the denial of their motion for summary judgment on counts IX and X, and we granted leave to appeal (107 Ill.2d R. 315). The plaintiff has not cross-appealed from the dismissal of the other counts.
II. HISTORY OF DES
The history of the development of DES and its marketing in this country has been repeatedly chronicled, especially in cases which address the issues of conspiracy and concert of action. (See Ryan v. Eli Lilly & Co. (D.S.C.1981), 514 F.Supp. 1004; Martin, 102 Wash.2d 581, 689 P.2d 368; Sindell, 26 Cal.3d 588, 607 P.2d 924, 163 Cal. Rptr. 132; Lyons v. Premo Pharmaceutical Labs, Inc. (App.Div.1979), 170 N.J.Super. 183, 406 A.2d 185; Note, The DES Causation Conundrum: A Functional Analysis, 32 N.Y.L.Sch.L.Rev. 939 (1987); Comment, Market Share Liability: A New Method of Recovery for D.E.S. Litigants, 30 Cath.U.L.Rev. 551 (1981).) Nevertheless, before getting into the market share issue, we believe that a brief account of the drug's history will be helpful.
Diethylstilbestrol is a synthetic substance which duplicates the activity of estrogen, a female sex hormone crucial to sexual development and fertility. Professor E.C. Dodds and his associates first synthesized the drug in England in 1937. The drug was not patented by Professor Dodds, but was left available for general production by pharmaceutical companies. In 1940, a number of pharmaceutical companies in the United States sought the approval of the Food and Drug Administration (FDA) to market DES in up to 5 milligram doses to treat vaginitis, engorgement of the breasts, excessive menstrual bleeding and symptoms of menopause. 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. 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. Accordingly, a working committee of four companies was formed which collected all the data, prepared the master file and submitted it to the FDA. In September 1941, the FDA approved the production and marketing of DES for the requested uses, none of which were for problems related to pregnancy.
The first supplemental NDAs seeking FDA approval for DES as a miscarriage preventative were filed in 1947. These NDAs were filed separately and relied on clinical studies published in medical journals which attested to the safety and effectiveness of DES for this purpose. The FDA subsequently approved these applications. In 1952, the FDA declared that DES was no longer a new drug within the meaning of the Federal Food, Drug, and Cosmetic Act, and was therefore considered safe for general use. This declaration meant that any manufacturer could market the drug without submitting additional data to the FDA concerning its safety and effectiveness. Between 1947 and 1952, approximately 85 companies manufactured DES. *328 By the end of 1952 up to 191 companies were manufacturing and distributing DES.
In 1971, two medical studies suggested that there was a statistically significant association between the outbreak in young women of clear cell adenocarcinoma, a form of cancer, with the maternal ingestion of DES during pregnancy. Later that year the FDA banned the marketing of DES for use by pregnant women. It has been estimated that at the time of this ban as many as 300 companies had produced DES for sale. Many of these companies are no longer in existence, having merged with other concerns or gone into liquidation. Although DES is no longer used during pregnancy, it is still prescribed as an estrogen replacement in cases of hormone deficiency, for treatment of unusual menopausal symptoms, and for treatment of certain kinds of cancers of the breast and prostate, and is a major ingredient in the "morning after" pill, a post-coital contraceptive.
Beginning in the 1970s, hundreds of lawsuits were filed against manufacturers of DES by the daughters of women who took the drug while pregnant. These plaintiffs are commonly referred to as the "DES daughters." The seriousness of the injuries they suffer cannot be questioned and the hysterectomy required for Sandra Smith was not unusual. (See Bichler v. Eli Lilly & Co. (1982), 55 N.Y.2d 571, 577, 436 N.E.2d 182, 184, 450 N.Y.S.2d 776, 778; Namm v. Charles E. Frosst & Co. (App. Div.1981), 178 N.J.Super. 19, 25-26, 427 A.2d 1121, 1124; Lyons v. Premo Pharmaceutical Labs, Inc. (App.Div.1979), 170 N.J. Super. 183, 189, 406 A.2d 185, 188; see also Enright v. Eli Lilly & Co. (Supp.1988), 141 Misc.2d 194, 195, 533 N.Y.S.2d 224, 226.) The defendants before us, however, point out that statistics regarding DES daughters have not shown a high incidence of cancer and that it is not widely accepted that the injuries suffered are the consequence of the maternal ingestion of DES (see, e.g., Sindell, 26 Cal.3d at 620-21, 607 P.2d at 942, 163 Cal.Rptr. 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). Whether or not there is a correlation sufficient to establish a cause of action is an issue properly for the finder of fact. We have before us only the legal issue of the viability of the causes of action.
III. SUBSTANTIVE TORT PRINCIPLES
A fundamental principle of tort law is that the plaintiff has the burden of proving by a preponderance of the evidence that the defendant caused the complained-of harm or injury; mere conjecture or speculation is insufficient proof. (Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill.2d 401, 405-06, 256 N.E.2d 6; M. Polelle & B. Ottley, Illinois Tort Law 422-23 (1985); Annot., 51 A.L.R.3d 1344, 1349 (1973) ("it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product").) In a negligence action this causation-in-fact requirement entails a reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered. (See Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 79, 117 N.E.2d 74; W. Keeton, Prosser & Keeton on Torts § 41, at 262 (5th ed. 1984).) The theory of strict liability is that one who sells a defective product unreasonably dangerous to the user is liable for the resulting injury. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 621, 623, 210 N.E.2d 182; Restatement (Second) of Torts § 402A (1965).) Likewise, to recover under strict liability the plaintiff must establish some causal relationship between the defendant and the injury-producing agent. See M. Polelle & B. Ottley, Illinois Tort Law 581 (1985).
In Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill.2d 401, 256 N.E.2d 6, a defective pin used to attach a metal chute to a construction tower failed, allowing the chute to fall and strike the plaintiff. Plaintiff sued Archer and evidence established that the defective pin was similar in color to the pins manufactured by defendant, but several other manufacturers produced similar *329 pins. We affirmed the trial court's grant of summary judgment, reasoning that:
"The plaintiffs' evidence failed to establish sufficient connection between the admittedly defective pin and Archer. * * * [The] evidence shows no more than that Archer was one of several possible manufacturers which could have supplied the pin." (44 Ill.2d at 405-06, 256 N.E.2d 6.)
The identification element of causation in fact serves an important function in tort law. Besides assigning blame-worthiness to culpable parties, it also limits the scope of potential liability and thereby encourages useful activity that would otherwise be deterred if there were excessive exposure to liability. Fischer, Products LiabilityAn Analysis of Market Share Liability, 34 Vand.L.Rev. 1623, 1628-29 (1981).
The plaintiff before us alleges that after extensive discovery she has been unable to identify the manufacturer of the DES her mother ingested. A number of circumstances contribute to the barrier in establishing causation in fact in DES cases. The effects caused by prenatal exposure to DES usually do not manifest themselves until at least after the child reaches puberty, and more years may pass before the cancer is linked to DES. During this long lapse, whatever records the doctor, pharmacy or manufacturer maintained have often been lost or destroyed and the memories of the persons involved have faded. 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. 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.
Although proof of causation in fact is ordinarily an indispensable ingredient of a prima facie case, the plaintiff points out that competing tort interests have compelled courts to create exceptions to the causation requirement. These exceptions to the rule have allowed a plaintiff to shift to a defendant or a group of defendants the burden of proof on the causation issue. Included within the exceptions are "enterprise liability," "alternative liability" and "market share liability."
In addition to market share liability, most plaintiffs in the DES cases have argued that enterprise liability or alternative liability, as well as a concert of action and a conspiracy theory, should apply to extend liability to a group of defendants.
The criteria necessary for a cause of action based on enterprise liability have been summarized to include: "(1) The injury-causing product was manufactured by one of a small number of defendants in an industry; (2) the defendants had joint knowledge of the risks inherent in the product and possessed a joint capacity to reduce those risks; and (3) each of them failed to take steps to reduce the risk but, rather, delegated this responsibility to a trade association." (Burnside v. Abbott Laboratories (1985), 351 Pa.Super. 264, 285, 505 A.2d 973, 984; see also Hall v. E.I. Du Pont De Nemours & Co. (E.D.N.Y. 1972), 345 F.Supp. 353.) Alternative liability may apply when two or more defendants act tortiously toward a plaintiff who, through no fault of her own, cannot identify which one of the joined defendants caused the injury. The burden of proof shifts to each defendant to prove his innocence. (Restatement (Second) of Torts § 433B(3), at 441-42 (1965); Summers v. Tice (1948), 33 Cal.2d 80, 199 P.2d 1.) Concert of action applies when a tortious act is done in concert with another or pursuant to a common design, or a party gives substantial assistance to another knowing that the other's conduct constitutes a breach of duty. (Restatement (Second) of Torts §§ 876(a), (b), at 315 (1979).) A civil conspiracy involves two or more persons who combine for the purpose of accomplishing by concerted action either (1) a lawful purpose by unlawful means, or (2) an unlawful purpose by lawful means. M. Polelle & B. Ottley, Illinois Tort Law 389 (1985); see also Montgomery Ward & Co. v. United Retail, Wholesale & Department Store *330 Employees of America (1948), 400 Ill. 38, 52, 79 N.E.2d 46.
Though the market share liability theory has received some acceptance, in nearly every instance, the other theories have been soundly rejected. (See, e.g., Ryan v. Eli Lilly & Co. (D.S.C.1981), 514 F.Supp. 1004 (civil conspiracy, concert of action, alternative liability and enterprise liability rejected); Burnside v. Abbott Laboratories (1985), 351 Pa.Super. 264, 505 A.2d 973 (no conspiracy, concert of action or enterprise liability): Collins v. Eli Lilly & Co. (1984), 116 Wis.2d 166, 342 N.W.2d 37 (no conspiracy, concerted action, enterprise liability or alternative liability); Martin, 102 Wash.2d 581, 689 P.2d 368 (concerted action, alternative liability and enterprise liability properly dismissed); Zafft v. Eli Lilly & Co. (Mo.1984), 676 S.W.2d 241 (no alternative liability, concert of action or enterprise liability); Sindell, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132 (concert of action, enterprise liability and alternative liability rejected); Bichler v. Eli Lilly & Co. (1982), 55 N.Y.2d 571, 436 N.E.2d 182, 450 N.Y.S.2d 776 (because DES manufacturer made no motion to dismiss the complaint for failure to state a cause of action, concerted action theory became controlling law of case), overruled, Hymowitz v. Eli Lilly & Co. (1989), 73 N.Y.2d 487, 508, 539 N.E.2d 1069, 1076, 541 N.Y.S.2d 941, 948; contra Abel v. Eli Lilly & Co. (1984), 418 Mich. 311, 343 N.W.2d 164 (allowed concert of action).) Plaintiff in our case either included these causes of action in her amended complaint or argued them in her briefs. The circuit court dismissed all but the market share liability theory, and the appellate court affirmed application of that theory. In this appeal, plaintiff has chosen not to cross-appeal the dismissal of the claims based on concert of action, civil conspiracy, enterprise liability and alternative liability. Instead, we have before us only the narrow legal issue of whether to adopt market share liability in negligence and strict liability actions filed by a DES daughter. Currently, four States have adopted some form of this theory when confronted with the issue of imposing liability on drug manufacturers for injuries caused to women whose mothers ingested DES while pregnant. However, none of these States agree on the remedy or its application.
IV. JUDICIALLY PROMULGATED MARKET SHARE THEORIES
A. California
In Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, the California Supreme Court rejected the plaintiff's three bases for her cause of action and instead modified the alternative liability theory, thus fashioning its form of market share liability. In reaching this conclusion, the court reasoned that in a contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer. It then went on to give three policy reasons for developing market share liability. First, as between an innocent plaintiff and a manufacturer of a defective product, the manufacturer should bear the cost of the injury. Second, it believed that the manufacturer was in a better position to bear the cost involved in an injury. Third, because the manufacturer is in the best position to recognize defects in products and to guard against them, holding the producer liable for these defects would provide an incentive to product safety.
Under the remedy as fashioned in Sindell, the plaintiff must first join as defendants the manufacturers of a "substantial share" of the DES which her mother may have taken, and must prove a prima facie case on every element except identification of the direct tortfeasor. After joining the manufacturers, the burden of proof shifts to defendants to demonstrate that they could not have manufactured the DES that caused plaintiff's injuries. If a defendant fails to meet this burden, the court fashions a market share theory to apportion damages according to the likelihood that any of defendants supplied the product by holding each defendant liable for the proportion of the judgment represented by its *331 share of that market. 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.
The Sindell court realized that the rule was not flawless and, in Brown v. Superior Court (1988), 44 Cal.3d 1049, 751 P.2d 470, 245 Cal.Rptr. 412, the California Supreme Court resolved some of the ambiguities. Brown held that liability in the market share theory is not joint and several, rather it is only several. Furthermore, in cases in which all manufacturers in the market are not joined, liability will be limited to the market share represented, resulting in a less than 100% recovery for a plaintiff.
From its inception Sindell has not been widely accepted. 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. Justice Richardson argued that the theory will result in imposition of liability on pure conjecture and that it rewards the plaintiff who, unlike the ordinary plaintiff, no longer has to take the chance that the responsible defendant cannot be reached or is unable to respond financially. Therefore, "it is readily apparent that `market share' liability will fall unevenly and disproportionately upon those manufacturers who are amenable to suit in [those few jurisdictions which adopt some form of the theory]." (Sindell, 26 Cal.3d at 617, 607 P.2d at 940, 163 Cal.Rptr. at 148 (Richardson, J., dissenting).) The dissent stressed that the opinion has the effect of making pharmaceutical companies insurers of their industry and that because of the sweeping effect of market share liability, the policy decision to introduce and define it should rest not with the court but with the legislature.
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. (McElhaney v. Eli Lilly & Co. (D.S.D.1983), 564 F.Supp. 265, 270-71 (applying what it thought would be South Dakota law).) Criticisms include that the court failed to identify the relevant market for purposes of determining a particular defendant's market share, i.e., local, countrywide, statewide or national, and a manufacturer's liability will vary widely depending on which market is used. This uncertainty undermines the court's claim that market share liability approximates each defendant's responsibility for the injuries caused by its own products. (Fischer, Products LiabilityAn Analysis of Market Share Liability, 34 Vand.L.Rev. 1623, 1643-44 (1981).) The court also failed to define what constitutes a "substantial share" of the market, one which is sufficient to shift the burden of proof to the defendant. A law review article that influenced the court suggested that plaintiff join 75% to 80% of the manufacturers (Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963, 995-96 (1978)), but the court rejected this as too high and held that only a substantial percentage is required (Sindell, 26 Cal.3d at 612, 607 P.2d at 937, 163 Cal. Rptr. at 145). 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. (See also Miller & Hancock, Perspectives on Market Share Liability: Time for a Reassessment?, 88 W.Va.L.Rev. 81, 88-91 (1985); Note, The DES Causation Conundrum: A Functional Analysis, 32 N.Y.L.Sch.L.Rev. 939, 959-61 (1987).) Further attestation to the flaws in the specifically developed procedure in California is the fact that it was rejected by the three other State supreme courts which have recognized some form of market share liability, as well as by our own appellate court in the case now before us. 173 Ill.App.3d 1, 18, 122 Ill.Dec. 835, 527 N.E.2d 333; Hymowitz v. Eli Lilly & Co. (1989), 73 N.Y.2d 487, 511, 539 N.E.2d 1069, 1077-78, 541 N.Y.S.2d 941, 949-50; Collins v. Eli Lilly Co. (1984), 116 Wis.2d 166, 188-192, 342 N.W.2d 37, 48-49; Martin *332 v. Abbott Laboratories (1984), 102 Wash.2d 581, 600, 689 P.2d 368, 380.
B. Washington
The theory most closely paralleling the Sindell rule is the "market share alternate liability" theory which the Washington Supreme Court adopted in Martin v. Abbott Laboratories (1984), 102 Wash.2d 581, 689 P.2d 368. As in Sindell, Martin found unavailing the enterprise and alternative liability, concert of action and civil conspiracy theories. It further believed that the California approach was insufficient because the court failed to define what constituted a "substantial" share of the market and, the Martin court mistakenly believed, it distorted liability by providing that the "substantial market share" bears joint responsibility for 100% of plaintiff's injuries. The Washington court nonetheless did not outrightly reject the market share theory. It reasoned that each defendant contributed to the risk of injury to the public and consequently to the risk of injury to the plaintiff. Thus, each defendant shares in some measure a degree of culpability in producing or marketing DES.
The market share alternate liability theory that the Washington court formulated allows the plaintiff to bring suit against only one defendant. The plaintiff must prove that her mother took DES; the DES caused subsequent injuries; the defendant produced or marketed the type of DES taken by plaintiff's mother; and the production and marketing of DES breached a legally recognized duty to the plaintiff. The burden then shifts to the defendant to prove by a preponderance of evidence that it did not produce or market the type of DES taken by the mother; did not produce or market DES in that geographical