Legal question 2: another undetermined defendant

[redkow97]

(another real case with fake names). Betty Smith is pregnant, and takes prescription drug DES.

Betty's daughter Marge experiences birth defects from the drug 20+ years later, after her mother has died.

Marge sues 5 drug companies for her damages. It is an undisputed fact that DES was definitely the cause of her injuries, but she has no way of proving which drug company actually produced the pill that her mother took.

a total of 20 companies produced DES, but the 5 defendants produced 90% of the DES sold in the United States. Of those 5, only 3 remain in business.

Who pays?

(i'll say up front that this is kind of a trick question, because it takes the Summers v. Tice ruling, and outlines 2 other possible applications of 'justice' with multiple negligent defendants)

[max power]

Uh, I'm guessing we all do. Do I win?

[Disclaimer]

Invoking the 'blood from a turnip' argument. The 3 remaining companies. You can name all 5 in the lawsuit, but obviously any award from a defunct entity isn't going to yield any monetary compensation. The awards can be proportional to the amount of product they had in the marketplace.

The origin of the drug isn't relevant so much as the drug itself caused the issue, therefore any makers of the drug are liable.

The case is mentioned in my Summers v. Tice link in the other thread. S*****l vs. A***** Labs (redacted to give other people a legit chance to weigh in)

[redkow97]

I would contend that NOT all of the drug makers are liable. they are all NEGLIGENT, but only one of tehm produced the pills that injured the plaintiff.

If i drive drunk, and you're hit by someone else who is also driving drunk, I'm negligent (in the same manner as the party who harmed you) and you're injured, but I'm not liable for your injury.

civil law demands an ACTUAL injury. Criminal law defines behaviors that are so potentially dangerous, they're deemed intolerable even without an injury. The latter is irrelevant here.

[redkow97]

to speak to the insolvent parties, the question is really "how much can the plaintiff recover?"

(if we get into that, we start to answer the question of who is really being held responsible, etc.)

[Disclaimer]

I would contend that NOT all of the drug makers are liable. they are all NEGLIGENT, but only one of tehm produced the pills that injured the plaintiff.

All the drugs are identical in manufacture. And through no fault of her own, cannot identify the specific source, but again that's irrelevant because all pills were identical and it was happenstance whether her prescription was from source A, B, C, D, or E. This is why I mentioned the market-share, but you can statistically say that if A,B,C sources had produced 90% of the market, then D,E should be only 10% liable. You can split the liability based on the records of how much each source produced.

If i drive drunk, and you're hit by someone else who is also driving drunk, I'm negligent (in the same manner as the party who harmed you) and you're injured, but I'm not liable for your injury.

I understand the analogy, but it's not equivalent. Drugs are regulated differently from alcohol, and you don't need a prescription (meaning she consulted with her physician on this) to get alcohol. The effects of alcohol are more or less widely known. This is usually not the case with drugs, which is a risk in itself - but that's another separate sidebar for another time.

[wrillo]

If you hired an engineer to design something for you, and then after it was built it failed, why would you go after the guy that built it and not the engineer?

Only one company is liable for the development and testing of the drug for FDA approval. Then the FDA is liable for approving it. I don't think the manufacturers of the drug should be held accountable.

[jbot]

i'd guess that the three remaining companies are ordered by the court/jury (assuming it lasted to the decision and it wasn't settled) to pay some amount.

but then maybe you're being tricksy, and the court found the plaintiff just plain wetodded

[wrillo]

Bingo! We pay taxes to ensure our safety via our glorious government departments. So' date=' isn't it only logical to assume they are the final say in what we can/cannot, should/should not have?[/quote']

Government without accountability FTL

[redkow97]

I don't disagree that the FDA should be held responsible, but they're not being sued in the fact pattern presented.

[chachi1189]

Yea, obviously the government was most likely not held responsible.

I believe the original company/creator of the drug should be held liable, not the companies that actually produced it. All those companies really did was just assembly line those drugs, to their best knowledge the drugs were safe.

In terms of who actually had to pay, I believe it was ruled in the fact that assuming certain preconditions were met, that all companies had to pay depending on their market share at the time the mother took the pill.

[redkow97]

Honestly, i'd have to look it up to see how his particular case was decided, but I believe a 'market share' liability theory WAS used.

So in this case, there were 90% of the producers sued, so the Plaintiff could only collect a maximum of 90% of her damages. In the case of the drug companies who were out of business, the remaining defendants DO NOT have to pay their share. So in this case, the client likely collected significantly LESS than 90% of her damages.

In an Enterprise liability application, the Plaintiff collects 100% of her damages, because the entire 'enterprise' is negligent. The remaining defendants have to pick up the slack for those who have gone out of business, which I think is BS, but some courts disagree.

Therein lies the debate - "market share" stands to leave the Plaintiff somewhat un-compensated, and "enterprise" makes successful companies more accountable than their failed counter-parts.

With the pharmacy industry as huge as it is today, there's less of an issue now than there used to be, but market-share can be unpopular if there's a fear that it will prevent companies from trying to create new drugs.

Enterprise is also easier to apply when there's some kind of independent certifying body. In the Sindell case, the drug companies had worked together to create the drug.

Without making it a separate question, DES grand-children are NOT able to recover. The court has consistently ruled that while Grandma A directly ingested the drug, and Mother B was directly affected in-utero, Grandchild C may legitimately be damaged, but had no direct interaction with the drug company. Therefore, no recovery is allowable. That's mostly a policy ruling so the same family can't continue to sue for generation after generation - again, it keeps pharmacy co's from being terrified to introduce new drugs.

[redkow97]

in a civil case, the FDA will only have to show that it was 'reasonably prudent' in its actions or inactions.

the fact that the FDA creates regulations that amount to criminal violations muddies the waters a little bit, but anyone would be hard-pressed to show that the FDA was negligent.

The fact is that the FDA doesn't actually TEST the drugs, they merely created the standards by which drug companies must test the drugs.

If the FDA created a regulation that said "any and all new drugs must be tested for multiple generations so we can gauge their effect on pregnant women and their resulting children," that would pretty much halt new drug production for the next 40-60 years. You're telling me people would be happy with THAT result?