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Thomas v. Mallett7/15/2005
e precise producer or marketer of the DES taken by her mother due to the generic status of some DES, the number of producers or marketers, the lack of pertinent records, and the passage of time." Id. at 177. Based on common law, the plaintiff had to prove not only duty, breach of duty, and injury, but also legal causation between a defendant's conduct and a plaintiff's injury. Id. at 182. This court recognized that the plaintiff had to prove a particular drug company produced or marketed the DES that her mother took while pregnant in order to recover on her claim. Id. Obviously, this posed an insurmountable obstacle for her. See id. at 177, 182.
Thus, this court was faced "with a choice of either fashioning a method of recovery for the DES case which will deviate from traditional notions of tort law, or permitting possibly negligent defendants to escape liability to an innocent, injured plaintiff." Id. at 181. "In the interests of justice and fundamental fairness," this court chose the former. Id.
This court observed that Article I, Section 9 of the Wisconsin Constitution conferred on the court the ability to create an adequate remedy when one did not exist. Id. at 182 (citing D.H. v. State, 76 Wis. 2d 286, 294, 251 N.W.2d 196 (1977)). Similarly, this court noted that:
nherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.
Id. (quoting Bielski v. Schulze, 16 Wis. 2d 1, 11, 114 N.W.2d 105 (1962)). Thus, this court adopted the risk-contribution theory, which relaxed the plaintiff's burden of proof in establishing causation in her negligence and product liability claims, for three reasons.
First, " ach defendant contributed to the risk of injury to the public and, consequently, the risk of injury to individual plaintiffs. . . . " Id. at 191 (emphasis in original, footnote omitted). In this sense, each shared some measure of culpability in producing or marketing the drug. Id. at 191-92. Second, because the drug companies were in a better position to absorb the cost of the injury (through either insurance, incorporation of the damage awards, or by passing the cost along to the public as "a cost of doing business," id. at 192), this court concluded that "it is better to have drug companies or consumers share the cost of the injury than to place the burden solely on the innocent plaintiff." Id. Third, the court recognized that "the cost of damages awards will act as an incentive for drug companies to test adequately the drugs they place on the market for general medical use." Id.
Under the risk-contribution theory as stated in Collins, a plaintiff need commence an action against only one defendant, but the plaintiff will have to allege the following elements and prove each to the satisfaction of the trier of fact:
hat the plaintiff's mother took DES; that DES caused the plaintiff's subsequent injuries; that the defendant produced or marketed the type of DES taken by the plaintiff's mother;[ ] and that the defendant's conduct in producing or marketing the DES constituted a breach of a legally recognized duty to the plaintiff.
Id. at 193. It was not fatal to a plaintiff's claim if he or she could not identify the type of DES taken by the mother. The Collins court held that " n the situation where the plaintiff cannot allege and prove what type of DES the mother took, as to the third element the plaintiff need only allege and p
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