Someone (we don’t remember who) once said that the mark of a cultured person is the ability to discuss the work of Marcel Proust without ever having read a word of it. Okay, here goes.
Proust wrote A la Recherche du Temps Perdu, which properly translates into In Search of Lost Time, though it traditionally has been called Remembrance of Things Past. Proust offered a theory of voluntary and involuntary memory. (Proust’s father, by the way, was an epidemiologist). A voluntary memory is retrieved via conscious effort. Quick: who was your third-grade teacher? By contrast, an involuntary memory hits us unexpectedly. The most famous example of the latter is Proust’s recollection of childhood after sniffing some fresh-baked Madeleines. That reminds us of our Evidence professor who said you could refresh a witness’s recollection with anything, including a plate of spaghetti.
As we get older, we are getting way worse at voluntary memory, and way more susceptible to involuntary memory.
The other day we saw a very short opinion out of New York called Gianvito v. Premo Laboratories, (N.Y. App. Div., 1st Dept. March 20, 2012). The plaintiffs “allege that they suffered injury due to in utero exposure to the estrogen drug Diethylstilbestrol (DES), and they urge application of the ‘market share’ theory of liability.” In about a page and a half, the Gianvito court decided that New Jersey law applies, that “New Jersey has not formally adopted a market share theory of liability in DES or similar cases,” that “such a theory cannot be found based on dicta” from New Jersey cases, and that “to the extent New Jersey law is unsettled on this issue, we decline to expand the law therein to allow plaintiffs to allege a market share theory.” It is the right result.
It also brought back memories of our Torts class in law school. These are not necessarily happy memories. Suspicion is provoked when we hear somebody look back with fondness at first year in law school. Still, we learned a couple of things that are worth holding onto besides the lyrics to “Rock the Casbah”. For instance, we will always remember how the case of Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980), introduced us to the fact that the law, especially in California, could be utterly crazy. It was not quite a loss of innocence, but it helped prepare us for a couple of decades of batty rulings.
The plaintiff in Sindell was a woman who had developed cancer as a result of her mother’s use of DES during pregnancy. Because approximately 200 different companies had manufactured DES, and because so much time had passed, the plaintiff could not identify the manufacturer of the particular DES her mother had taken. She sued the five biggest DES manufacturers, which sold 90% of the DES during the relevant time. What to do? In a 4-3 opinion authored by Justice Mosk, the California Supreme Court held that the plaintiff could proceed on a market share theory of liability. The rule was that if all the defendants are potential tortfeasors, the product is fungible, the plaintiff is legitimately unable to identify the product that harmed her, and a substantial share of the manufacturers who produced the product during the relevant time period are named as defendants, then a rebuttable presumption arises in favor of the plaintiff and she can collect from each defendant a percentage of her damages equal to that defendant’s market share at the time the product was used. A manufacturer may rebut the presumption by showing that its product could not possibly have injured the plaintiff.
The Sindell opinion was considered a Very Big Deal in the 1980s. It continued a trend in California law of treating the tort system as a form of social insurance. The plaintiff was absolutely innocent, whereas the defendants had made and sold a dangerous drug. The manufacturers were in a better position than the plaintiff to bear the costs and guard against future harm. Arguably, deterrence would be undermined if all manufacturers of a dangerous product eluded liability. Sindell was judicial policy-making plain and simple. You could debate whether it was good or bad policy, but you could not pretend it was not policy.
Sindell was also a pretty long walk down the road of collective responsibility. Sure, there have been other cases involving joint tortfeasors where it was hard to discern the specific culprit, such as a pair of quail hunters negligently discharging their shotguns toward a fellow hunter (Summers v. Tice, 33 Cal. 2d 80 (1948)) or one member of a hospital operating room screwing up (Ybarra v. Spangard, 25 Cal. 2d 486 (1944)), but the Sindell opinion puts a defendant on the hook merely for being in the marketplace. The opinion repeatedly cites a Fordham Law Review article, and in an oral memoir Justice Mosk stated that the article is what gave him the idea. Let that serve as proof of the pernicious influence of law review articles. Surely, we cannot be the only practitioner who regards law review articles as being somewhat useful to the extent they collect and categorize cases, but invariably useless when they go on to propose some new ‘solution’.
The question back in the 1980s was whether Sindell was blazing a new trail or whether it was an aberration, a dead-end. We think it was mostly the latter. Gianvito is the latest example of a court refusing to buy the Sindell burden-and-cost-shifting theory. And courts have usually refused to extend Sindell beyond DES. True, the resolution of asbestos and Agent Orange litigation had some Sindell-stink. But they are isolated, regrettable exceptions. Most products are not perfectly fungible. Not all manufacturers act in the same way. Thus, in Skipworth v. Lead Industries Ass’n, 690 A.2d 169 (Pa. 1997), the court declined to apply market share liability to manufacturers of lead-based paint. Lead-based paint is not fungible. Plus, the house in question had been around for a century.
We are not comfortable with collective responsibility. We want evidence that a particular defendant did something wrong and harmed this particular plaintiff. If we remember correctly, in A Civil Action (the book, not the movie) there is a discussion of a hypothetical involving a plaintiff who was hit by a school bus. The plaintiff could not identify the particular school bus. There were two school bus companies in town — call them A and B. Assume that A has 80 percent of the buses in town, and 80 percent of the business. Is that 80 percent share enough to prove by a preponderance of the evidence that A was liable? Or should the plaintiff recover 80 percent of her damages from A and 20 percent from B? Don’t these approaches, while making sense on some sort of macro-epidemiological-social-insurance level, offend one’s sense of justice?
On the whole, it seems to us that the judiciary has retreated from activism. Most judges are content to interpret law rather than engage in social engineering. Judicial activism is perilous. If you are going to act like a policy maker, then you will be treated like one. That is why SCOTUS confirmation hearings turned so ugly. If judges will make policy, they need to answer questions about their policy predilections. So the logic goes, anyway. Mind you, we write this hot on the heels of the Affordable Care Act oral arguments. It’s heady stuff when we are thrust back on thoughts of Wickard and Lochner.
This is not to say that we are completely out of the woods. Sindell has mostly been relegated to the ash-heap of legal history. But its notion of assigning liability to defendants that did not manufacture the product in question has not completely vanished. Not surprisingly, it was a California court that issued the execrable Conte opinion, permitting a brand manufacturer to be held liable to a plaintiff who took the generic product. As we explained here, Conte is even worse than Sindell because the allegedly limiting factors in Sindell were absent in Conte. In Conte, the manufacturer of the product at issue was known, and there was no long-delayed injury. We look forward to the day when the Conte doctrine is only a bad memory.