Most of the Federal courts which have addressed the issue of applying market share liability in a DES case have declined to adopt such a radical departure from the common law of the State in which each sits without a clearer direction from that State's supreme court. 637, 639 (there is no indication that the New Jersey Supreme Court would deviate from the causation requirement), aff'd (3d Cir.1982), 696 F.2d 984; Ryan v. Eli Lilly & Co. (D.S.C.1981), 514 F. Supp. Many of those defendants who have been named are no longer in business or have filed motions challenging jurisdiction and for these companies especially it is unlikely that records will be available to establish their share of any market. (Hymowitz, 73 N.Y.2d at 512, 539 N.E.2d at 1078, 541 N.Y.S.2d at 950.) at 150-51 (Richardson, J., dissenting).) Le siège social est situé à Indianapolis, dans l'Indiana aux États-Unis.La compagnie a été créée en 1876 par le colonel Eli Lilly, pharmacien et vétéran de la guerre de Sécession, décédé en 1898 et qui lui a donné son nom. (See Prosser, The Assault Upon the Citadel, 69 Yale L.J. The plaintiff, Sandra Smith, was born on July 13, 1953, in Chicago, Illinois. Many of these companies are no longer in existence, having merged with other concerns or gone into liquidation. In its opinion, the appellate court concluded that the pharmaceutical drug companies were in solid financial condition and would be able to insure against drug-related costs. The appellate court supported its conclusion that market share liability should be adopted based in part on analogies to two other causation exceptions. Rptr. (Shackil v. Lederle Laboratories (1989), 116 N. J. The plaintiff contends that by not recognizing a market share liability theory we will be abdicating our responsibility in the development of Illinois common law. For instance, in this case part of the problem in identification may be attributed to the Field Clinic for its labeling of the drug as only "Tab 98" and to the laws which require maintenance of records for only a short period of time. In reaching this conclusion, the court reasoned that in a contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer. She seeks relief against defendant DES manufacturers. Consequently, plaintiffs would still have a strong incentive to identify specific manufacturers. One of the bases relied upon in adopting the theory is that the drug companies are better able to insure against liability and to pass the costs on. (Sindell, 26 Cal. at 145-46 ("We are not unmindful of the practical problems involved in defining the market and determining market share, but these are largely matters of proof which properly cannot be determined at the pleading stage of these proceedings").) 412, the California Supreme Court resolved some of the ambiguities. First, the majority notes that market share theories which variously inflate liability to account for those manufacturers that are not before the court, impose joint and several liability, or impose liability on a pro rata basis, may cause manufacturers to incur liability in excess of their market shares. Perhaps, as a number of other courts and commentators have suggested, this change is most appropriate for the legislature to develop, with its added ability to hold hearings and determine public policy. Sandra SMITH, Appellee, 1623, 1628-29 (1981). This would also create a tremendous cost, both monetarily and in terms of the workload, on the court system and litigants in an attempt to establish percentages based on unreliable or insufficient data. at 35, 560 N.E.2d at 337.) ELI LILLY AND COMPANY Claimant v. GOVERNMENT OF CANADA Respondent CLAIMANT’S MEMORIAL Richard G. Dearden Wendy J. Wagner Anca M. Sattler GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 Canada +1-613-233-1781 (telephone) +1-613-563-9869 (facsimile) Marney L. Cheek John K. Veroneau Alexander A. Berengaut 132, the California Supreme Court rejected the plaintiff's three bases for her cause of action and instead modified the alternative liability theory, thus fashioning its form of market share liability. 137 Ill.2d 222 - SMITH v. ELI LILLY & CO., Supreme Court of Illinois. 150 (1989); but see Twerski, Market ShareA Tale of Two Centuries, 55 Brooklyn L.Rev. However, where manufacturers can escape liability because it is impossible for a plaintiff to prove causation in fact, traditional tort laws do not provide any incentive to produce safe drugs. 173 Ill. App.3d at 18, 122 Ill. Dec. 835, 527 N.E.2d 333; McCormack v. Abbott Laboratories (D.Mass.1985), 617 F. Supp. Let us assume that there were only three manufacturers of DES: manufacturer X, who manufactured 50% of the DES market, and manufacturers Y and Z, who each manufactured 25% of the DES market. The majority's rejection of the Hymowitz theory of market share liability is apparently based upon a number of specific criticisms which have been made of the market share theories previously developed by courts in this country, and upon other more general criticisms of the overall *348 concept of market share liability. at 23, 560 N.E.2d at 325.) 1984).) The doctor gave Mrs. Smith a prescription to be filled at the clinic pharmacy for "Tab 98." at 145.) However, the court denied the motion with respect to count X, the strict liability action, and adopted market share liability, based on the theory that the California Supreme Court articulated in Sindell v. Abbott Laboratories (1980), 26 Cal. 2d 80, 199 P.2d 1.) (See Sindell, 26 Cal. The plaintiff has not cross-appealed from the dismissal of the other counts. Mrs. Smith obtained her DES prescription from the Field Clinic pharmacy. The theory of strict liability is that one who sells a defective product unreasonably dangerous to the user is liable for the resulting injury. (Restatement (Second) of Torts §§ 876(a), (b), at 315 (1979).) Warner-Jenkinson Co. Inc. v Hilton Davis Chemical Co., 520 U.S. 17 (1997), which elaborated on the statement of the principle in Graver Tank & Manufacturing Co Inc v Linde Air Products Co 339 US 605, 607 (1950) 3. It's free! Justice CALVO joins in this partial concurrence and partial dissent. 155, 561 A.2d 511, became severely retarded as a result of a diphtheria, pertussis and tetanus (DPT) vaccine. (Emphasis added.) 137 Ill. 2d at 261-62, 148 Ill.Dec. Keenan v. McGuane (1958), 13 Ill. 2d 520, 535, 150 N.E.2d 168 (the common law is "a system of law whose outstanding characteristic is its adaptability and capacity for growth").) 1623, 1657 (1981) ("The legal fees and administrative costs arising from litigation of this magnitude easily could rival the cost of the plaintiff's judgment"); Comment, Market Share Liability for Defective Products: An Ill-Advised Remedy for the Problem of Identification, 76 Nw. (See 137 Ill. 2d at 256-57, 148 Ill.Dec. On July 13, 1953, plaintiff was delivered by cesarean section. The court rejected unalloyed market share liability, concluding that it "does not constitute the most desirable course to follow in DES cases because the theory, while conceptually attractive, is limited in practical applicability." U.L.Rev. We agree with his conclusion that such a solution is an unreasonable over-reaction in attempting to achieve what is perceived as a socially satisfying result. V. }} Jury Trial Demanded ELI LILLY AND COMPANY, SIDNE Y TAIJREL, CHARLES GOLDEN, and} f~ ALAN B IE , M.D. If a defendant fails to meet this burden, the court fashions a market share theory to apportion damages according to the likelihood that any of defendants supplied the product by holding each defendant liable for the proportion of the judgment represented by its *331 share of that market. It is likely that the defendant who actually sold the product is not before the court. Kurt M. Zitzer & Marc D. Ginsberg, Illinois Rejects Market Share Liability: A Policy Based Analysis of Smith v. Eli Lilly & Co., 79 Ky. L.J. 222, 560 N.E.2d 324 (1990). 3d 588, 611-13, 607 P.2d 924, 936-37, 163 Cal. Accordingly, we reverse the judgments of the appellate and circuit courts, and remand this cause to the circuit court of Cook County for further proceedings consistent with this opinion. (Restatement (Second) of Torts § 433B(3), at 441-42 (1965); Summers v. Tice (1948), 33 Cal. Strict liability is not the equivalent of absolute liability." The court concluded that "[m]arket share represents a radical departure from the body of products liability law that has been developed in South Carolina" and has the potential for placing liability on defendants who bear no responsibility for the defective product. Rptr. (See George v. Parke-Davis, 107 Wash. 2d at 597, 733 P.2d at 514 (in order to inhibit defendants from randomly impleading insolvent corporations to reduce their share of presumptive liability, defendants are required to establish the actual market share of impleaded defendants).) In 1978, she was admitted to the Ravenswood Hospital in Chicago, where she underwent a dilation and curettage, cervical biopsy, and an excisional biopsy of the vaginal wall. 183; see also Cummins v. Firestone Tire & Rubber Co. (1985), 344 Pa. Super. Furthermore, it is possible that liability will far exceed the probability that a defendant caused the injuries. 20.86. Jordan Smith | 日本 兵庫県 神戸 | Eli Lilly and Company - Finance Director - Lilly Japan | 500+人のつながり | Jordanさんのホームページ、プロフィール、アクティビティ、記事を表示 By contrast, market share liability merely requires the plaintiff to name as defendants either a substantial share of those in the market or, in some theories, only one manufacturer who was in the market. And while Eli Lilly's trailing annual dividend yield is less than GlaxoSmithKline's at 1.62%, the former's dividend has grown steadily since 2018, whereas the latter's has ebbed. (McElhaney v. Eli Lilly & Co. (D.S.D.1983), 564 F. Supp. Third, in the earlier exceptions the burden is shifted to parties who bear some culpability for causing plaintiff's injury. But with market share liability the named defendant need not have been directly connected with the activity or instrumentality that caused the harm. San Francisco County), No. This court long ago described the common law as "a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions and the exigencies and usages of the country." It reasoned that each defendant contributed to the risk of injury to the public and consequently to the risk of injury to the plaintiff. Instead, manufacturers under the Hymowitz theory can only be held liable for their market share. (137 Ill. 2d at 255, 148 Ill.Dec. Rptr. In an effort to avoid duplication of time and effort in determining the sufficiency of the documentation presented, the FDA requested that the drug companies withdraw their NDAs and submit their data jointly in a master file. Co. (S.D.Ga.1982), 533 F. Supp. If that sole defendant is a small contributor to the DES market, such as Boyle and Massengill, it possibly could shoulder complete liability without proof of *333 its being the cause in fact for the injury. The plaintiff before us alleges that after extensive discovery she has been unable to identify the manufacturer of the DES her mother ingested. A number of circumstances contribute to the barrier in establishing causation in fact in DES cases. In 1971, two medical studies suggested that there was a statistically significant association between the outbreak in young women of clear cell adenocarcinoma, a form of cancer, with the maternal ingestion of DES during pregnancy. See M. Polelle & B. Ottley, Illinois Tort Law 581 (1985). However, it rejected the Sindell rule which the trial court had adopted and instead adopted the market share liability theory as it was recognized in Martin v. Abbott Laboratories (1984), 102 Wash. 2d 581, 689 P.2d 368. L.J. Furthermore, because market share liability "is only being applied to manufacturers of DES or similar products * * * the goal of warning manufacturers to produce safer products likely will not reach a wide array of producers." at 428.) C 344407). Similarly, we find unavailing the appellate court's conclusion that market share liability will encourage manufacturers to maintain more detailed records which will enable plaintiffs to identify the culpable party. Rptr. Instead, market share liability can only be imposed upon those manufacturers within a particular industry who manufacture an identical product, and only if that product shares a common defect which caused a plaintiff's injuries. (83 Ill. 2d at 394, 47 Ill. Dec. 392, 415 N.E.2d 397, 47 Ill. Dec. 392, 415 N.E.2d 397. Criticisms include that the court failed to identify the relevant market for purposes of determining a particular defendant's market share, i.e., local, countrywide, statewide or national, and a manufacturer's liability will vary widely depending on which market is used. Therefore, this theory can be substantially unfair to any company that is unable to prove its market share, especially if that company is small. Rptr. Having had a history of difficulty with pregnancy, Mrs. Smith consulted with her physician, Dr. Jack E. Davis of the Field Clinic in Chicago, Illinois. The record establishes that Tab 98 designated 25 milligram tablets of DES. Plaintiff contends she has brought before the court "virtually all" of the companies which comprised the small committee, thus she has all the parties responsible for making DES available for use as a miscarriage preventative. Moreover, Dr. Davis and the purchaser of the products stocked by the pharmacy are deceased. 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