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Thomas v. Mallett7/15/2005
rove that the defendant drug company produced or marketed the drug DES for use in preventing miscarriages during pregnancy." Id. at 194. If these elements could be proven, the plaintiff could recover all damages from the named defendant. Id.
This court concluded that the plaintiff could also proceed on a strict products liability theory by proving:
(1) that the DES was defective when it left the possession or control of the drug company; (2) that it was unreasonably dangerous to the user or consumer; (3) that the defect was a cause of the plaintiff's injuries or damages; (4) that the drug company engaged in the business of producing or marketing DES or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the drug company; and (5) that the product was one which the company expected to reach the user or consumer without substantial change in the condition it was when sold.
Id. at 195.
However, this court was concerned that only those defendant drug companies that "reasonably could have contributed in some way to the actual injury" be held accountable. Id. at 191 n.10 (emphasis added). Thus, after the plaintiff made a prima facie case under either negligence or strict products liability theory, a defendant could escape liability if it proved by a preponderance of evidence that the DES it produced or marketed could not have reached the plaintiff's mother. Id. at 197-98. A defendant could accomplish this by establishing "that it did not produce or market the subject DES either during the time period the plaintiff was exposed to DES or in the relevant geographical market area in which the plaintiff's mother acquired the DES." Id. at 198.
Providing defendants the ability to prove their way out of liability "will result in a pool of defendants which it can reasonably be assumed could have caused the plaintiff's injuries." Id. This procedure, however, was imprecise, as it could mean that some of the remaining defendants may still be innocent. Nevertheless, this court accepted that possibility "as the price the defendants, and perhaps ultimately society, must pay to provide the plaintiff an adequate remedy under the law." Id. at 198.
For those defendants that could not exculpate themselves, this court concluded that the application of comparative negligence "provide the most equitable means to assign liability and apportion damages among the liable defendants." Id. at 199. In assigning liability among the defendants, this court determined that the jury may consider the following nonexhaustive list of factors:
hether the drug company conducted tests on DES for safety and efficacy in use for pregnancies; to what degree the company took a role in gaining FDA approval of DES for use in pregnancies; whether the company had a small or large market share in the relevant area; whether the company took the lead or merely followed the lead of others in producing or marketing DES; whether the company issued warnings about the dangers of DES; whether the company produced or marketed DES after it knew or should have known of the possible hazards DES presented to the public; and whether the company took any affirmative steps to reduce the risk of injury to the public.
Id. at 200. Through the trial court's exercise of discretion, the jury could be permitted to consider other relevant factors to apportioning liability. Id.
A.
At the outset, the parties dispute whether this court should recognize the risk-contribution theory for Thomas's claim. The Pigment Manufacturers contend that the Collins court was concerned with modifying the common
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