Legal question 2: another undetermined defendant

redkow97 · #1 12-22-2009, 03:34 PM

(another real case with fake names). Betty Smith is pregnant, and takes prescription drug DES.

Betty's daughter Marge experiences birth defects from the drug 20+ years later, after her mother has died.

Marge sues 5 drug companies for her damages. It is an undisputed fact that DES was definitely the cause of her injuries, but she has no way of proving which drug company actually produced the pill that her mother took.

a total of 20 companies produced DES, but the 5 defendants produced 90% of the DES sold in the United States. Of those 5, only 3 remain in business.

Who pays?

(i'll say up front that this is kind of a trick question, because it takes the Summers v. Tice ruling, and outlines 2 other possible applications of 'justice' with multiple negligent defendants)

max power · #2 12-22-2009, 03:40 PM

Uh, I'm guessing we all do. Do I win?

JRMMiii · #3 12-22-2009, 03:45 PM

Invoking the 'blood from a turnip' argument. The 3 remaining companies. You can name all 5 in the lawsuit, but obviously any award from a defunct entity isn't going to yield any monetary compensation. The awards can be proportional to the amount of product they had in the marketplace.

The origin of the drug isn't relevant so much as the drug itself caused the issue, therefore any makers of the drug are liable.

The case is mentioned in my Summers v. Tice link in the other thread. S*****l vs. A***** Labs (redacted to give other people a legit chance to weigh in)

redkow97 · #4 12-22-2009, 03:54 PM

I would contend that NOT all of the drug makers are liable. they are all NEGLIGENT, but only one of tehm produced the pills that injured the plaintiff.

If i drive drunk, and you're hit by someone else who is also driving drunk, I'm negligent (in the same manner as the party who harmed you) and you're injured, but I'm not liable for your injury.

civil law demands an ACTUAL injury. Criminal law defines behaviors that are so potentially dangerous, they're deemed intolerable even without an injury. The latter is irrelevant here.

Isaac's Papa · #5 12-22-2009, 03:57 PM

Hmmm.. I'd be inclined to sue the FDA, but that's just me being Anti-American.

redkow97 · #6 12-22-2009, 03:57 PM

to speak to the insolvent parties, the question is really "how much can the plaintiff recover?"

(if we get into that, we start to answer the question of who is really being held responsible, etc.)

JRMMiii · #7 12-22-2009, 04:25 PM

Quote:

Originally Posted by redkow97

I would contend that NOT all of the drug makers are liable. they are all NEGLIGENT, but only one of tehm produced the pills that injured the plaintiff.

All the drugs are identical in manufacture. And through no fault of her own, cannot identify the specific source, but again that's irrelevant because all pills were identical and it was happenstance whether her prescription was from source A, B, C, D, or E. This is why I mentioned the market-share, but you can statistically say that if A,B,C sources had produced 90% of the market, then D,E should be only 10% liable. You can split the liability based on the records of how much each source produced.

Quote:

Originally Posted by redkow97

If i drive drunk, and you're hit by someone else who is also driving drunk, I'm negligent (in the same manner as the party who harmed you) and you're injured, but I'm not liable for your injury.

I understand the analogy, but it's not equivalent. Drugs are regulated differently from alcohol, and you don't need a prescription (meaning she consulted with her physician on this) to get alcohol. The effects of alcohol are more or less widely known. This is usually not the case with drugs, which is a risk in itself - but that's another separate sidebar for another time.

wrillo · #8 12-22-2009, 04:48 PM

If you hired an engineer to design something for you, and then after it was built it failed, why would you go after the guy that built it and not the engineer?

Only one company is liable for the development and testing of the drug for FDA approval. Then the FDA is liable for approving it. I don't think the manufacturers of the drug should be held accountable.

jbot · #9 12-22-2009, 05:03 PM

i'd guess that the three remaining companies are ordered by the court/jury (assuming it lasted to the decision and it wasn't settled) to pay some amount.

but then maybe you're being tricksy, and the court found the plaintiff just plain wetodded

Isaac's Papa · #10 12-22-2009, 05:15 PM

Quote:

Originally Posted by wrillo

If you hired an engineer to design something for you, and then after it was built it failed, why would you go after the guy that built it and not the engineer?

Only one company is liable for the development and testing of the drug for FDA approval. Then the FDA is liable for approving it. I don't think the manufacturers of the drug should be held accountable.

Bingo! We pay taxes to ensure our safety via our glorious government departments. So, isn't it only logical to assume they are the final say in what we can/cannot, should/should not have?