44 Cal.3d 1049, 751 P.2d 470, 245 Cal.Rptr. 412 (1988)
Plaintiffs in these consolidated actions were exposed to the drug diethylstilbestrol, known as DES, while in utero after their mothers ingested the drug during pregnancy to prevent miscarriage.1 Because multiple manufacturers produced DES according to the same formula, the plaintiffs could not identify the specific manufacturer responsible for the particular DES taken by their mothers.2
The plaintiffs filed suit in the San Francisco Superior Court against numerous drug manufacturers, with typical complaints naming 170 or more defendants.3 These cases were designated as complex litigation, with pretrial rulings issued in a lead case numbered 830-109 that would apply to at least 69 related actions.4 The complaints alleged that the defendants manufactured DES from the same formula, that the drug was unsafe for use in preventing miscarriage, and that the manufacturers knew it contained a cancer-causing substance yet failed to provide warnings to users or their physicians.5
In addition to claims for negligence, the plaintiffs asserted causes of action for strict liability based on design defects in DES, as well as breach of express and implied warranty and fraud.6 Where they could not identify the specific manufacturer, the plaintiffs sought to hold liable those defendants who had manufactured a substantial share of the DES market.7 The trial court sustained demurrers to the strict liability design defect claims.8 It ruled that breach of warranty and fraud claims could not be pursued under the market share theory, while also determining that any liability would be several rather than joint.9
The Court of Appeal reviewed the trial court's pretrial rulings through writ proceedings and affirmed those determinations.10 The Supreme Court of California granted review to consider the questions presented by the litigation.11
Whether a manufacturer of a prescription drug may be held strictly liable for injuries caused by a design defect in the drug?12
A manufacturer is not strictly liable for a design defect in a prescription drug unless the drug is so unsafe that it should not have been marketed at all.13 The consumer expectations test and the risk-benefit test from Barker do not apply to prescription drugs.14 The ordinary consumer is not in a position to decide whether the drug is safe.15 The public interest in the development and marketing of new drugs precludes application of strict liability for design defects.16
No. Plaintiffs in these consolidated actions were exposed to the drug diethylstilbestrol known as DES while in utero after their mothers ingested the drug during pregnancy to prevent miscarriage.17 Because multiple manufacturers produced DES according to the same formula, the plaintiffs could not identify the specific manufacturer responsible for the particular DES taken by their mothers.
The plaintiffs filed suit in the San Francisco Superior Court against numerous drug manufacturers, with typical complaints naming 170 or more defendants. These cases were designated as complex litigation, with pretrial rulings issued in a lead case numbered 830-109 that would apply to at least 69 related actions. The complaints alleged that the defendants manufactured DES from the same formula, that the drug was unsafe for use in preventing miscarriage, and that the manufacturers knew it contained a cancer-causing substance yet failed to provide warnings to users or their physicians. The plaintiffs alleged that DES was defective in design.18
Since the court has concluded that strict liability for design defect does not apply to prescription drugs, the demurrers were properly sustained as to those causes of action.19 Because DES is a prescription drug, the consumer expectations test is inappropriate because the ordinary consumer is not in a position to decide whether the drug is safe.20 The risk-benefit test is not appropriate because of the important public interest in the development and marketing of new drugs.21
The demurrers to the strict liability design defect claims were properly sustained because prescription drugs are not subject to strict liability for design defects.22
Whether a plaintiff who proceeds under the market share theory of liability may base her action on fraud or breach of warranty?23
A plaintiff who proceeds on a market share theory may not prosecute a cause of action for fraud or breach of warranty.24 These claims are inconsistent with the determination that a manufacturer of prescription drugs is not strictly liable for injuries caused by a design defect that is neither known nor knowable at the time the drug is distributed.25
No. The plaintiffs sought to hold the manufacturers liable on theories of strict liability, breach of express and implied warranty, fraud, and negligence under the market share doctrine.2627 Plaintiff's breach of warranty claims are inconsistent with our determination on the issue of strict liability for design defects.
For fraud, the plaintiff would be required to show that misrepresentations were made to her and that she relied on them to her detriment.28 This presents formidable problems of proof under the market share theory because the state of mind of a particular manufacturer cannot be demonstrated without reference to a specific defendant.29 The plaintiffs could not identify the specific manufacturer and therefore sought to proceed under the market share theory.30 The court ruled that fraud and warranty claims could not be maintained under that theory.31
A plaintiff who proceeds on a market share theory may not prosecute a cause of action for fraud or breach of warranty.
Whether manufacturers joined in a market share action are jointly and severally liable for any damages awarded or liable only in proportion to their share of the DES market?32
Defendants in a market share action are not jointly and severally liable for damages.33 Each defendant is liable only for the proportion of the judgment represented by its market share.34 Joint liability would be inconsistent with the rationale of the market share doctrine which seeks to achieve a reasonable approximation of each manufacturer's responsibility for injuries caused by the DES it produced.35
No. The court held that the imposition of joint liability on defendants in a market share action would be inconsistent with the rationale of the market share doctrine.36 This doctrine seeks to achieve a reasonable approximation of each manufacturer's responsibility for injuries caused by the DES it produced.37
Under the established facts the plaintiffs sought to hold liable those defendants who had manufactured a substantial share of the DES market.38 The court determined that each defendant would be held liable for the proportion of the judgment represented by its market share.39 The trial court ruled that defendants could be held only severally liable in a market share action.40 The Supreme Court affirmed that determination.41
Defendants in a market share action are liable only in proportion to their share of the DES market.42