Dissent in Sindell v. Abbott Laboratories
26 Cal. 3d 588, 607 P.2d 924 (1980) (1980) · Supreme Court of California
Sindell established the groundbreaking market share liability theory, allowing plaintiffs to recover from multiple manufacturers of a fungible product in proportion to each manufacturer's market share, even when the plaintiff cannot identify which specific manufacturer produced the product that caused her injury. This was a creative solution to the identification problem in mass tort litigation.
What was the dissent in Sindell v. Abbott Laboratories?
Justice Richardson dissented, arguing that the majority abandoned the fundamental tort requirement of causation. He contended that market share liability imposes liability on defendants who may not have caused the plaintiff's injury and that the judicial branch should not create such radical new theories of liability. He argued this was properly a matter for legislative action.
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Case Overview
Facts
Judith Sindell and other plaintiffs alleged that they developed cancer as a result of their mothers' ingestion of diethylstilbestrol (DES) during pregnancy. DES was a synthetic estrogen prescribed to prevent miscarriages and was manufactured by hundreds of pharmaceutical companies using an identical formula. Because DES was a fungible product and decades had passed, the plaintiffs could not identify which specific manufacturer produced the DES their mothers had taken.
Majority Holding
The court held that when a plaintiff cannot identify the specific manufacturer of a product that caused injury, each manufacturer of a substantial share of the market may be held liable for its proportionate share of the judgment. Each defendant's liability corresponds to the likelihood that it produced the particular product that caused the plaintiff's injury, as measured by its share of the relevant market.
Majority Reasoning
The court reasoned that the traditional requirement of identifying the specific tortfeasor would leave plaintiffs without any remedy, despite clear evidence that one of the defendants caused the injury. The court adapted the Summers v. Tice alternative liability theory to the mass tort context, shifting the burden to each defendant to prove that it did not cause the plaintiff's injury. Because DES was manufactured from an identical formula, each manufacturer's market share served as a reasonable approximation of the probability that it produced the product that harmed the plaintiff. The court emphasized the injustice of allowing manufacturers to escape liability simply because their product was fungible.
The Dissenting Opinion
Justice Richardson dissented, arguing that the majority abandoned the fundamental tort requirement of causation. He contended that market share liability imposes liability on defendants who may not have caused the plaintiff's injury and that the judicial branch should not create such radical new theories of liability. He argued this was properly a matter for legislative action.
Key Quotes
“Each defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiff's injuries.”
“From a broader policy standpoint, defendants are better able to bear the cost of injury resulting from the manufacture of a defective product.”
“The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects; thus, holding it liable for defects and failures to warn of harmful effects will provide an incentive to product safety.”
Impact and Legacy
Sindell created the market share liability theory, which was subsequently adopted or modified by courts in several other jurisdictions. The theory has been primarily applied in DES cases but has been proposed for other fungible products. The case significantly influenced mass tort litigation and the development of proportional liability theories. It remains controversial, with critics arguing it abandons the causation requirement and supporters arguing it provides essential justice for mass tort victims.
Exam Relevance
Market share liability is a favorite exam topic. Students should be prepared to explain when market share liability applies, distinguish it from alternative liability (Summers v. Tice), and discuss its requirements, including the fungibility of the product and the joinder of a substantial share of the market.
Study Tips
- Know the requirements for market share liability: fungible product, inability to identify the specific manufacturer, and joinder of defendants representing a substantial share of the market.
- Distinguish market share liability from Summers v. Tice alternative liability — in Summers, all possible tortfeasors were before the court; in Sindell, they were not.
- Understand that market share liability is proportional — each defendant pays only its market share, not joint and several liability.
- Be prepared to discuss the policy trade-off between compensating victims and imposing liability on potentially innocent defendants.
Read the Full Case Analysis
View the complete brief for Sindell v. Abbott Laboratories including full reasoning, doctrine, and study resources.
More Torts Dissents
Palsgraf v. Long Island Railroad Co.
248 N.Y. 339, 162 N.E. 99 (1928) (1928)
Judge Andrews wrote a vigorous dissent arguing that negligence is not relative to the individual but rather is a matter of whether the defendant's conduct was unreasonable. He advocated a broader proximate cause analysis, arguing that everyone owes a duty of care to the world at large and that liability should extend to all injuries that are the proximate result of negligent conduct, not just those to foreseeable plaintiffs.
Tarasoff v. Regents of the University of California
17 Cal. 3d 425, 551 P.2d 334 (1976) (1976)
Justice Clark dissented, arguing that the duty to warn would undermine the therapeutic relationship, deter patients from seeking treatment, and discourage therapists from treating potentially dangerous patients. He contended that the duty was unworkable because therapists cannot reliably predict violent behavior and that the majority's ruling would ultimately cause more harm than it prevented.
BMW of North America, Inc. v. Gore
517 U.S. 559 (1996) (1996)
Justice Scalia, joined by Justice Thomas, dissented, arguing that the Due Process Clause does not provide a substantive right to a particular standard of punitive damages and that the three-guidepost test was unworkable and lacked foundation in the Constitution's text or history. Justice Ginsburg also dissented, arguing that the Court should defer to state procedures for controlling excessive verdicts.
Katko v. Briney
183 N.W.2d 657 (Iowa 1971) (1971)
Justice Larson dissented, arguing that the majority's rule allowed trespassers and thieves to sue property owners who attempted to protect their property. He contended that property owners should have broader rights to defend their homes and possessions, particularly when they have been repeatedly victimized by break-ins.
Vincent v. Lake Erie Transportation Co.
109 Minn. 456, 124 N.W. 221 (1910) (1910)
Justice Lewis dissented, arguing that the damage was caused by the storm, not by the defendant's conduct, and that the defendant should not be liable for an act of God. He contended that the defendant had no realistic alternative and should not be penalized for acting reasonably in an emergency.
Thing v. La Chusa
48 Cal. 3d 644, 771 P.2d 814 (1989) (1989)
Justice Broussard dissented, arguing that the majority's strict rules were arbitrary and that a mother who arrives at the scene moments after the accident and sees her injured child suffers the same type of emotional distress as one who witnesses the accident itself. He argued that the flexible Dillon approach better served the interests of justice.