In Martin v. Abbott Laboratories, the Washington Supreme Court became the second state court to adopt a form of market share liability to apply against pharmaceutical companies that produced and marketed diethylstilbestrol (DES) for use by pregnant women. In Martin, the court was confronted with a problem common to many of the DES cases-the inability of the plaintiff to identify the specific manufacturer of the DES taken by her mother. While courts have not responded uniformly, the majority of courts have dismissed a plaintiff’s cause of action when she could not identify the brand of DES taken by her mother. However, as Naomi Sheiner stated:
“The DES cases are only the tip of an iceberg. As technology and science advance, there will be more products liability and analogous cases in which the injured party will be unable to identify the specific cause of his injury. Society faces a choice in these cases: it can either leave the injury where it falls as the price of modern technology; provide sporadic compensation through the application of current tort theories; or adopt a new legal theory which enables it to compensate uniformly.”
Recently, some courts have permitted the plaintiffs’ suits to continue either by straining to fit their cases into already accepted tort doctrine or by modifying that doctrine to accommodate the unusual circumstances created by DES.
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