Judith SINDELL, Plaintiff and Appellant, v. ABBOTT LABORATORIES et al., Defendants and Respondents.
Maureen ROGERS, Plaintiff and Appellant, v. REXALL DRUG COMPANY et al., Defendants and Respondents.
These appeals are from dismissals and judgments entered after the sustaining of defendants' demurrers to actions brought by Judith Sindell (hereinafter Sindell) and Maureen Rogers (hereinafter Rogers) for personal injuries allegedly resulting from prenatal exposure to diethylstilbestrol (DES). Although arising out of actions in the Los Angeles County and Ventura County Superior Courts, the appeals are consolidated because of common issues of fact and law.
In both actions, defendant drug manufacturers demurred on the ground that the complaints failed to state a cause of action in that there was no identification of the particular defendant which manufactured the DES that allegedly caused harm to plaintiffs; it appears that it was on this premise only that the demurrers were sustained without leave to amend. For the reasons discussed below, we reverse the judgments of dismissal.
STATEMENT OF THE CASE
Both Sindell and Rogers sue on their own behalf and as representatives of all women residing in California who are similarly situated, although Sindell limits her representative status to the portion of her complaint seeking certain equitable relief. The complaints, which are substantially identical, allege that the prerequisites for maintaining plaintiff and defendant class actions are satisfied.1 Both actions are for money damages and equitable relief and seek to hold defendants individually and jointly liable for unlawfully manufacturing, marketing, and promoting DES. The complaints allege that DES, which was ingested by plaintiffs' mothers as a miscarriage preventative, has caused plaintiffs to develop precancerous and cancerous tumors and lesions.
In her complaint, Sindell alleges that she has developed precancerous lesions or tumors of the vagina, cervix, and breast and a cancerous bladder tumor which has been surgically removed. Her complaint sets forth ten causes of action, each of which is alleged to arise from the individual and concerted action of the defendants in the manufacture and marketing of DES. The causes of action charge express and implied agreements among defendants and collaboration in, reliance upon, and adoption of each other's testing and marketing methods with respect to the subject drug.
In her first seven causes of action, Sindell seeks to hold defendants liable on the following theories: negligence, strict products liability, lack of informed consent, breach of express warranties, breach of implied warranties, fraud, and violations of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. s 301 et seq.).
In what is denominated an eighth cause of action, Sindell alleges that all activities engaged in by the defendants were the result of joint and concerted enterprise, that there existed a common and mutually agreed upon formula for the drug, that the various brands of DES were marketed by the defendants as being fungible and interchangeable with all other brands of the drug, and that there was a pharmaceutical practice of filling prescriptions of DES with a brand other than that prescribed.
The ninth cause of action sounds in conspiracy, and the tenth relates to the class aspects of the action. Nowhere in Sindell's complaint does she identify the specific manufacturer of the DES ingested by her mother.
The general demurrers of defendants Rexall Drug Company, E. R. Squibb & Sons, Inc., and Upjohn Company were sustained without leave to amend, all on the ground that Sindell had failed in her complaint to identify the specific manufacturer of the DES which allegedly injured her. Defendant Abbott Laboratories' general demurrer was sustained with 30 days leave to amend, the court noting the absence of an “allegation that any product manufactured by demurring defendant caused any harm to plaintiff.” Sindell, however, failed to thereafter amend her complaint. Defendant Eli Lilly and Company's motion for summary judgment was treated as a demurrer and sustained without leave to amend on the same ground as stated previously that Sindell could not name an individual defendant.
Sindell appeals from the orders of dismissal which were subsequently entered in favor of the above named defendants.2
Rogers alleges that she has developed cervical cancer and precancerous lesions or tumors of the vagina and cervix. She also alleges that defendant manufacturers of DES have acted both individually and jointly, their “joint and concerted” actions including, but not limited to, joint testing, marketing, and promotional activity, as well as mutual exploitation of the common formula for the drug, which in turn led to the pharmaceutical practice of treating the various brands of DES as being interchangeable with one another.
Rogers' first amended complaint contains the following six causes of action: negligence, strict products liability, breach of express warranties, breach of implied warranties, false representations, and violations of the Federal Food, Drug, and Cosmetic Act.
By amendment to her first amended complaint, Rogers has identified defendant Eli Lilly and Company as the manufacturer of the DES ingested by her mother.
The general demurrer of defendant Rexall Drug Company was sustained without leave to amend “because Rexall is nowhere in the pleadings shown to have provided or purveyed the particular drug which affected plaintiff (Rogers) . . . .” The joint demurrer of defendants E. R. Squibb & Sons, Inc. and Upjohn Company was sustained without leave to amend on the stated ground that Rogers' first amended complaint failed to allege facts sufficient to sustain a cause of action.3 Rogers appeals from the orders of dismissal subsequently entered in favor of these defendants. Since Rogers identified Eli Lilly and Company as the producer of the DES taken by her mother, it remains a defendant in her case.4
Preliminary to our discussion, we note that since these appeals are before us on general demurrers, we must assume all allegations of fact set forth in the complaints to be true. (Landeros v. Flood (1976) 17 Cal.3d 399, 407, 131 Cal.Rptr. 69, 551 P.2d 389; Bayer v. Suttle (1972) 23 Cal.App.3d 361, 363, 100 Cal.Rptr. 212.) The question of plaintiffs' ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court. (Landeros v. Flood, supra; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) Furthermore, “A general demurrer admits not only the facts expressly alleged but also facts essential to a cause of action which the facts alleged supply by implication or inference.” (Harvey v. City of Holtville (1969) 271 Cal.App.2d 816, 819, 76 Cal.Rptr. 795, 797.)
Being thus directed by the case law noted, we observe that both the Sindell and Rogers complaints contain factual allegations which, if proven, would establish that defendants are both individually and jointly responsible for plaintiffs' injuries in that they acted in both their individual capacities and in concert in the doing of the wrongful acts which caused those injuries. This is the state of the record before us as the reviewing court. As such, the doctrines of concerted action and alternative liability enable these complaints to stand at this stage of the proceedings.
Defendants' parade of horribles and fears of “collectivized liability” or “enterprise liability” are groundless in the light of our narrow holding embracing these two California doctrines.5
The Concerted Action Theory
Section 876 of the Restatement of Torts, which is entitled “Persons Acting in Concert,” provides in pertinent part as follows:
“For harm resulting to a third person from the tortious conduct of another, a person is liable if he
“. . .rm
“(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
“(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”
It has been noted that the rule as stated in the above section of the Restatement is clearly the law of California. (Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 113, 140 Cal.Rptr. 41, citing Loeb v. Kimmerle (1932) 215 Cal. 143, 150, 9 P.2d 199.)
Witkin states that the Restatement's definition of “joint tortfeasors” applies not only to those who act in concert to accomplish some common goal or plan and thereby cause injury, but also to “those who order, direct or permit others to do the act, And who give assistance or encouragement.” (Italics added.) (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, s 30, pp. 2329-2330.)
Harper and James cite section 876 of the Restatement of Torts as universal authority for the proposition that wrongdoers who act in concert are jointly and severally liable. (1 Harper & James, Law of Torts (1956) s 10.1, p. 698.)
In commenting on the doctrine of concerted action, Prosser states that “All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him. (P) Express agreement is not necessary, and all that is required is that there be a tacit understanding . . . .” (Fns. omitted.) (Prosser, Law of Torts (4th ed. 1971) s 46, p. 292; see also Prosser, Joint Torts and Several Liability (1937) 25 Cal.L.Rev. 413, 429-430.) But Prosser further notes that in pleading a cause of action based on concerted action, “It is . . . essential that each particular defendant who is to be charged with responsibility shall be proceeding tortiously, which is to say with intent to commit a tort, or with negligence. One who innocently, and carefully, does an act which furthers the tortious purpose of another is not acting in concert with him.” (Fn. omitted.) (Prosser, Law of Torts, Supra, at p. 292; see also Rest., Torts, Supra, s 875, com. a.)
This court recognizes more than a half-dozen California cases which have applied, in a variety of factual situations, the doctrine of concerted action. Most notable among these are: Loeb v. Kimmerle, supra, 215 Cal. 143, 150-151, 9 P.2d 199 (a personal injuries action); Weinberg Co. v. Bixby (1921) 185 Cal. 87, 93, 106-107, 196 P. 25 (action for wrongful diversion of flood waters); Orser v. George (1967) 252 Cal.App.2d 660, 666-669, 60 Cal.Rptr. 708 (wrongful death action); Agovino v. Kunze (1960) 181 Cal.App.2d 591, 5 Cal.Rptr. 534 (action for personal injuries); and Meyer v. Thomas (1937) 18 Cal.App.2d 299, 306, 63 P.2d 1176 (action for conversion of a promissory note).
Orser v. George, supra, 252 Cal.App.2d 660, 60 Cal.Rptr. 708, summarizes California case law regarding the doctrine of concerted action and explains the rationale of the use of that theory to satisfy the element of causation in a situation where a plaintiff cannot identify the culpable defendant. Orser was a wrongful death action in which the trial court had granted a summary judgment in favor of two of three potentially liable defendants.6 The three defendants were hunters who were alleged to have engaged in the tortious conduct of firing their guns at mudhens in the direction of the decedent. Two of the three defendants were alleged to have been alternately firing the same gun, a pistol, the bullet from which was subsequently determined to have killed the decedent. The third defendant could not have fired the fatal bullet, but he was alleged to have been shooting with a rifle in the same line of fire as the other two defendants. (Id. at pp. 664-666, 60 Cal.Rptr. 708.) As there was a triable issue of fact as to which of the two defendants using the pistol had fired the fatal shot, the appellate court reversed the summary judgment which had been granted as to one of them. (Id. at p. 668, 60 Cal.Rptr. 708.) In addition, the court reversed, on a theory of concert, a summary judgment which had been entered in favor of the third, rifle-shooting defendant. The reasoning of the appellate court (which emphasized that it was concerned only with possibilities and not actual proof) was that triable issues remained as to whether the third defendant knew that his companions' conduct constituted a breach of duty owed the decedent and, further, whether his own tortious conduct in firing the rifle in the direction of the decedent had provided the other defendants “substantial ‘assistance or encouragement.’ ” (Id. at p. 668, 60 Cal.Rptr. 708, paraphrasing Rest., Torts, Supra, s 876, subds. (b) and (c).)
We note that, in so holding, the court in Orser indicated that Prosser's definition of concerted action (quoted above) is in line with both the Restatement's rule regarding joint action by tortfeasors and our Supreme Court's explication of that rule in a similar case, Summers v. Tice (1948) 33 Cal.2d 80, 85, 199 P.2d 1 (see discussion thereof, Infra ). (Orser v. George, supra, 252 Cal.App.2d 660, 667-668, 60 Cal.Rptr. 708.)
The cases before us present a situation analogous to the one in Orser. Both the Sindell and Rogers complaints contain the identical allegation that the defendant drug manufacturers, “acting individually And in concert, promoted, approved, authorized, acquiesced in, and reaped profits from sales” of DES. (Italics ours.) In addition, similar language appears in both complaints to the effect that express and implied agreements existed between the defendants regarding the manufacture and marketing of DES and that the defendants collaborated in, relied upon, acquiesced in, ratified, adopted, and exploited each other's testing (or lack thereof), marketing techniques, and promotional campaigns. The culmination of the defendants' concerted action is seen in the allegation, again common to both complaints, that there existed a common and mutually agreed upon formula for DES which permitted defendants to promote the drug as a fungible commodity, resulting in the pharmaceutical practice which permitted the filling of prescriptions for DES with a brand other than that prescribed.
These allegations, together with others not here mentioned, satisfy the pleading requirements necessary to hold defendants jointly liable on a concerted action theory. The fact that every defendant named herein may not have manufactured the DES actually ingested by plaintiffs' mothers is not determinative since, as in Orser, the allegations indicate that each defendant gave “substantial ‘assistance or encouragement’ ” to the tortious conduct of the others. (Orser v. George, supra, 252 Cal.App.2d 660, 668, 60 Cal.Rptr. 708; see also Rest., Torts, Supra, s 876, subds. (b) and (c).)
We reiterate that at this stage of the proceedings we are not concerned with the truth of plaintiffs' allegations or their ability to prove them. (Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216; cf. Orser v. George, supra, 252 Cal.App.2d at pp. 668-669, 60 Cal.Rptr. 708.) Whether each defendant's conduct Actually was a substantial factor in causing plaintiffs' injuries will be a question for the trier of fact. (Prosser, Law of Torts, Supra, s 41, p. 240.)
Defendants cite numerous authorities7 for the proposition that in a products liability action it must be shown that the defendant actually manufactured or sold the product which caused the plaintiff's injuries. This rule, however, is only one specific illustration of the general legal principle requiring a defendant to be the cause-in-fact of a plaintiff's harm. The doctrine of concerted action embodied in section 876 of the Restatement of Torts satisfies the requisite cause-in-fact element. As Prosser states, “The defendant's conduct is a cause of the event if it was a material element and a substantial factor in bringing it about.” (Prosser, Law of Torts, Supra, s 41, p. 240.) Thus, where concerted action is pled it is irrelevant whether the actual manufacturer of the product which caused the injury is identified. Indeed, in Hall v. E. I. Du Pont De Nemours & Co., Inc. (E.D.N.Y.1972) 345 F.Supp. 353, 372, the court noted that “the issue of who ‘caused’ the injury is distinctly secondary to the fact that the group engaged in joint hazardous conduct.”
By alleging concerted action by defendants in the production and marketing of DES, the pleadings before us conform to the requirement stated in 1 Hursh & Bailey, American Law of Products Liability, Supra, section 1:41, page 125, “that the product in question was one for whose condition the defendant was In some way responsible.” (Italics added.)
Further, since our holding here is grounded upon plaintiffs' allegations of cooperation and joint control among the defendant manufacturers of DES, there is no basis to defendants' expressed fears that henceforth all manufacturers of similar products will be held liable when one has been found to have produced a defective product. To the contrary, it is the law of this state that a defendant will not be held liable if it did not produce a defective product. Here, however, defendants are alleged to have acted jointly and in concert in the testing, marketing, and promoting of DES; if plaintiffs' allegations can be proven, it will be established that each defendant did, in fact, produce a defective product.
The factors cited above distinguish our cases from Wetzel v. Eaton Corporation, supra, 62 F.R.D. 22, heavily relied upon by defendants. In Wetzel, the court granted a summary judgment to one of two manufacturers alleged to have supplied a defective tractor component for lack of evidentiary support showing that that manufacturer had supplied the part which allegedly caused the plaintiff's accident. (Id. at pp. 28-29.) Since there was nothing to indicate that the manufacturer seeking the summary judgment had behaved tortiously toward the plaintiff, the court refused to apply California law pertaining to the concerted action or alternative liability doctrines. (Id. at pp. 29-30.) Here, in contrast, it is alleged that Each named defendant has engaged in tortious conduct toward each and every plaintiff. (See fn. 10, Infra.)
Defendants assert that they did not owe any duty to plaintiffs because of the “unavoidably unsafe products” exception to the general rules pertaining to strict liability in tort. That exception is applicable to products which, “in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.” (Rest., 2d Torts, s 402A, com. k, p. 353.) “Such a product, properly prepared, and Accompanied by proper directions and warning, is not defective . . . .” (Id. at pp. 353-354, italics added.) But whether the product in question here was “incapable of being made safe” is a matter of proof which cannot be resolved by inspection of the pleadings before us. We also note that both complaints contain allegations that DES was marketed without warning of the hazards apparently inherent in its use. Moreover, the rationale given for the “unavoidably unsafe products” exception is that the benefits attaching to certain potentially harmful products outweigh the risks they pose. (Id. at p. 353.) In the cases at bench, it is alleged not only that defendants engaged in inadequate testing of DES, but also that whatever testing was done showed the drug to be totally ineffective as a miscarriage preventative.
Furthermore, we find unpersuasive defendants' assertions that drug manufacturers must receive more lenient treatment than other manufacturers in the area of products liability. Indeed, Justice Jackson specifically included the drug industry as subject to the duty to make adequate tests and give proper warnings in this passage from his oft-cited dissent in Dalehite v. United States (1953) 346 U.S. 15, 51-52, 73 S.Ct. 956, 976, 97 L.Ed. 1427: “(T)o an ever-increasing extent our population is dependent upon mass producers for its food and drink, its cures and complexions . . . . Such a dependent society . . . must require from manufacturers or producers increased integrity and caution as the only protection of its safety and well-being. Purchasers cannot try out drugs to determine whether they kill or cure. . . . Where experiment or research is necessary to determine the presence or the degree of danger, the product must not be tried out on the public, nor must the public be expected to possess the facilities or the technical knowledge to learn for itself of inherent but latent dangers. The claim that a hazard was not foreseen is not available to one who did not use foresight appropriate to his enterprise.”
The Alternative Liability Theory
In the landmark case of Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, two hunters negligently fired their guns in the direction of the plaintiff at the same time. It was impossible to ascertain which of the defendants fired the shot which injured the plaintiff. (Id. at p. 84, 199 P.2d 1.) Under these circumstances, the court held that the defendants were jointly and severally liable unless they could absolve themselves, stating:
“When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless.” (Id. at p. 86, 199 P.2d at p. 4.)
Justice Traynor characterized the Summers burden of proof rule as “based on the policy that it is preferable to hold liable a negligent defendant who did not in fact cause the injury than to deny an innocent plaintiff any remedy when it cannot be determined which of the defendants is responsible for the harm but it appears that one of them was.” (Vasquez v. Alameda (1958) 49 Cal.2d 674, 682-683, fn. 2, 321 P.2d 1, 7 n.2 (Traynor, J., dissenting); see also Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 774, fn. 19, 91 Cal.Rptr. 745, 478 P.2d 465.)
] Further, although Sindell did not specifically allege in her complaint that she in incapable of identifying the particular manufacturer of the DES which caused her harm, her counsel apparently did represent to the court at the hearings on the demurrers that she lacks the knowledge requisite to such an identification. FN10. That Sindell is unable to name an individual defendant appears reasonably likely in view of the lapse of time occurring between the use of DES and the manifestation of its alledgedly carcinogenic effects, as well as the tracing problems engendered by the treatment of the drug as a fungible product. On remand, however, Sindell should amend her pleading to indicate with more particularity what her abilities are with respect to the identification of the manufacturer of the DES ingested by her mother. (See Summers v. Tice, supra, 33 Cal.2d 80, 88, 199 P.2d 1.)
Assuming that Sindell can amend her complaint to allege lack of knowledge as to which producer of DES caused her injuries, then the doctrine of alternate liability mandates that each defendant here bear the burden of proving its nonresponsibility. The mere fact that there were only two defendants in Summers does not, we believe, preclude the principle of law enunciated therein from being applied to the greater number of defendants named here.
Defendants argue that they may be in no better position than the daughters of DES users to identify the manufacturer of the particular DES ingested by their mothers. As between the present plaintiffs and defendants, however, it seems reasonable to conclude that defendants may have the greater access to some of the pertinent records and information necessary to such an identification. In any event, the insurmountable difficulties faced by the hunters in Summers in showing which one of them actually shot the plaintiff did not deter our Supreme Court in that case from shifting the burden of proof on the issue of causation; in practical effect, the court's holding necessarily resulted in joint liability. (4 Witkin, Summary of Cal.Law, Supra, Torts, s 625, p. 2907.)
We additionally note in this regard that the court in Summers found that the case of Ybarra v. Spangard (1944) 25 Cal.2d 486, 154 P.2d 687 presented “a quite analogous situation . . . .” (Summers v. Tice, supra, 33 Cal.2d 80, 86, 199 P.2d 1.) In Ybarra, the plaintiff awoke from an operation to discover that he had somehow been injured during the course of it. (25 Cal.2d at p. 488, 154 P.2d 687.) Since the plaintiff could not identify who or what instrumentalities caused his injuries, the Supreme Court found it appropriate to apply the doctrine of res ipsa loquitur to all hospital personnel involved in the surgery. (25 Cal.2d at pp. 490-493, 154 P.2d 687.) By thus allowing an inference of negligence to be raised as to all defendants, the court in Ybarra may actually have shifted the burden of proof to an entirely innocent, non- negligent party. Here, shifting the burden of proof would be less onerous since it is alleged that each defendant did, in fact, engage in the tortious conduct of producing and marketing DES.
The policy considerations expressed in Summers and Ybarra are apparent in another case from our Supreme Court, Haft v. Lone Palm Hotel, supra, 3 Cal.3d 756, 91 Cal.Rptr. 745, 478 P.2d 465. In that case, plaintiff-survivors sued for the wrongful death of two members of the Haft family who drowned in defendants' unattended motel pool. The defendants' unlawful failure to provide a lifeguard resulted in the plaintiffs' inability to establish the proximate cause of the drownings. (Id. at p. 771, 91 Cal.Rptr. 745, 478 P.2d 465.) Finding that “(t)he relative culpability of the parties and the burden facing plaintiffs” to be “comparable to the circumstances disclosed in Summers and Ybarra,” the court held that “considerations of ‘policy and justice,’ . . . shift the burden to ‘defendants to absolve (themselves) if (they) can.’ (Citation.)” (Haft v. Lone Palm Hotel, supra, 3 Cal.3d at p. 773, 91 Cal.Rptr. at p. 756, 478 P.2d at p. 476, brackets in original.) In so holding, the Haft court drew additional support from cases wherein “several negligent automobile drivers, not acting in concert, successively collide with a plaintiff's person or his property, and the resulting damage is not capable of apportionment”; the court noted that under such circumstances, “the burden ‘shifts to Any defendant who might have contributed to the injuries to prove his own Innocence or limited liability by showing that such injuries or some particular injury did not result from his negligent conduct.’ ” (Haft, supra, at p. 774, 91 Cal.Rptr. at p. 756, 478 P.2d at p. 476, italics in original.)
In the recent case of Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 183, 134 Cal.Rptr. 895, 902, the appellate court referred to Summers, Ybarra, and Haft in noting that “the law has stood ready to come to the aid of a hapless plaintiff who, through no fault of his own, is unable to provide direct evidence that defendant's breach of duty was a proximate cause of his injuries.” The court affirmed that the solution adopted in those cases is a shift in the burden of proof on the issue of causation to the defendant. (Ibid.)
Furthermore, the California courts have long recognized the policy objectives of insuring that the costs of injuries resulting from defective products be borne by the manufacturers that put such products on the market rather than by injured persons who are powerless to protect themselves. (Ray v. Alad Corp. (1977) 19 Cal.3d 22, 30, 136 Cal.Rptr. 574, 560 P.2d 3; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897.) The risk of injury can generally be insured by the manufacturer and distributed among the public as a cost of doing business. (Seely v. White Motor Co. (1965) 63 Cal.2d 9, 18-19, 45 Cal.Rptr. 17, 403 P.2d 145.) One commentator has noted that the twin goals of accident reduction and risk distribution, first urged by Justice Traynor in his classic concurring opinion in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 462, 150 P.2d 436, “have replaced a perceived need to insulate business enterprise from tort liability.” (Ursin, Strict Liability for Defective Business Premises One Step Beyond Rowland And Greenman (1975) 22 UCLA L.Rev. 820, 824, 846.)
We additionally note that the alternative liability doctrine has been incorporated in Restatement Second of Torts section 433B, subsection (3), wherein it is stated: “Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.” The rationale for this rule is stated to be “the injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and resulting harm has made it difficult or impossible to prove which of them has caused the harm.” (Rest., 2d Torts, Supra, s 433B, com. f, at p. 446.)
Absent a contrary statute or decision in this state, the Restatements are accorded the status of persuasive authority. (See Canfield v. Security-First Nat. Bank (1939) 13 Cal.2d 1, 30-31, 87 P.2d 830; Standard Oil Co. v. Oil, Chemical etc. Internat. Union (1972) 23 Cal.App.3d 585, 589, 100 Cal.Rptr. 354.)
Defendants maintain that subsection (3) of section 433B should not be applied here since not all manufacturers of DES are before the court. One of the comments to that subsection does indicate that thus far all actors have been joined as defendants in cases in which the subsection has been found applicable, and further recognizes that cases may arise where adjustments to the rule might be necessary because of the complications involved in joining all defendants, such as those resulting from the effect of time lapses. (Rest., 2d Torts, Supra, s 433B, com. h, at p. 446.) We, however, like the Restatement, do not purport to deal with all the possible problems which may arise from the application of the alternative liability doctrine to the situation before us; the difficulties to be faced at trial are no doubt great. We hold only that at this pleading stage of the litigation we see no logical impediment to the application of that doctrine. Moreover, defendants have ignored the possibility of bringing in the remaining DES manufacturers as cross-defendants pursuant to Code of Civil Procedure section 428.10, subdivision (b). (See American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 604-607, 146 Cal.Rptr. 182, 578 P.2d 899.)
Other Possible Grounds for the Sustaining of These Demurrers
Several of the defendants assert that even if their demurrers were improperly sustained on the ground of plaintiffs' failure to specify an individual defendant, the rulings of the courts below should nevertheless be upheld by reference to the other grounds stated in the demurrers.
While we are cognizant that a reviewing court is not limited to the reasons specified by the trial court when it is asked to determine whether a general demurrer was properly sustained (Altman v. Morris Plan Co. (1976)58 Cal.App.3d 951, 962, 130 Cal.Rptr. 397; Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 598, fn. 2, 108 Cal.Rptr. 219) we conclude that it would be inappropriate at this time to attempt to deal with all of the alleged insufficiencies in the pleadings before us. A review of the documents related to the demurrers reveals that the question regarding the necessity of specifying which defendant manufactured the DES ingested by each plaintiff's mother has been so pervasive in the proceedings up to this point that it is unlikely the other possible bases for sustaining the demurrers have received the treatment in the trial courts they deserve. The fact that, with one exception, each of the demurrers was sustained without leave to amend reflects the lack of opportunity the parties have had to refine the pleadings at the trial court level. Our holding herein does not, of course, prohibit the respective superior courts from now giving consideration to the other grounds stated in the demurrers should defendants choose to reassert them upon remand.11
Expedience, however, mandates that we address at least the limitations question raised by the instant demurrers since a determination adverse to plaintiffs on that issue would completely dispose of these cases. We note preliminarily in this regard that the demurrers would only be sustainable on the ground of the bar of the statute of limitations if the faces of the complaints Affirmatively disclose facts showing the availability of that defense. (Valvo v. University of Southern California (1977) 67 Cal.App.3d 887, 895, 136 Cal.Rptr. 865; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, s 797, p. 2410.)
Defendants' limitations argument is premised on the assumption that the applicable period is governed by Civil Code section 29, which provides:
“A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth; but any action by or on behalf of a minor for personal injuries sustained prior to or in the course of his birth must be brought within six years from the date of the birth of the minor, and the time such minor is under any disability mentioned in Section 352 of the Code of Civil Procedure shall not be excluded in computing the time limited for the commencement of the action.”
That section, however, appears not to be directed toward situations like those before us, namely, where the tortious conduct occurred prior to birth but the injury did not manifest itself until long after infancy.12 (Cf. G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25, 122 Cal.Rptr. 218.)
In view of the unusual circumstances present here, we conclude that these actions are governed by the one-year limitations period prescribed in Code of Civil Procedure section 340, subdivision 3, which, in cases involving injury from drug ingestion, does not begin to run until the time the plaintiff discovers or in the exercise of reasonable care should have discovered that he or she has been damaged by the defendant's product. (Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564, 566-567, 80 Cal.Rptr. 130.)
Turning to the pleadings before us, we note that Rogers appears to have filed her original action on July 15, 1976. In her first amended complaint, filed December 17, 1976, it is alleged that in August of 1975 Rogers' mother received a letter from the Chicago Lying-In Hospital, dated July 15, 1975,13 indicating that the hospital was conducting tests to determine a possible link between DES and abnormalities in the offspring of women who were prescribed the drug during their pregnancies. Thereafter, in October 1975, Rogers was examined and found to have cervical cancer. She further alleges that “Prior to this time plaintiff was completely unaware of this condition, having experienced no noticable (Sic ) symptoms and having been advised of no abnormal growths in any of her previous annual gynocological (Sic ) examinations.” Rogers' age is not stated in her pleadings. Under these alleged facts, it is clear that Rogers' original complaint was filed within one year of the earliest reasonable opportunity she had to discover that she may have been injured by exposure to DES.
Sindell's complaint was filed on August 2, 1976. It alleges that Sindell was alerted “in the past year by newspaper reports” of the possible connection between DES and the development of cancerous and precancerous growths in women exposed to the drug before birth. It is further alleged that a subsequent gynecological examination revealed that Sindell had developed vaginal and cervical adenosis and that she thereafter suffered surgery in May 1976 for the removal of a cancerous bladder tumor. Sindell's age is not alleged. While her complaint is less than a model pleading in this regard, we conclude that nothing on the face of it affirmatively discloses that Sindell is barred by the one-year limitations period from pursuing her action.
The judgments (orders of dismissal) entered in favor of defendants Abbott Laboratories, Eli Lilly and Company, Rexall Drug Company, E. R. Squibb & Sons, Inc., and Upjohn Company in No. 51845 and in favor of defendants Rexall Drug Company, E. R. Squibb & Sons, Inc., and Upjohn Company in No. 51875 are reversed and the causes remanded for further proceedings not inconsistent with the views herein expressed.
1. We do not address the complicated class action issues raised by the complaints as such a discussion is not necessary to our opinion.
2. The record on appeal reflects that Sindell also appealed from an order dismissing defendant Warner Lambert/Parke Davis Company following the sustaining of its demurrer without leave to amend. The parties, however, have since stipulated to a dismissal of this defendant from the action.
3. Although defendants E. R. Squibb & Sons, Inc. and Upjohn Company jointly demurred on a number of grounds, including bar of the statute of limitations, their supporting papers stated that “the bottom line of this Demurrer, indeed of this case, is whether a plaintiff can maintain a cause of action against a product manufacturer and distributor without alleging that it actually used that manufacturer's product!” Thus, while the trial court was not specific as to its reasons for sustaining these defendants' demurrer, we assume for the purposes of this discussion that its ruling was based on the same ground as the other defendants prevailed on, i. e., failure of the plaintiff to limit herself to an individual defendant. For the reasons discussed later in this opinion, we deem it inappropriate at this point in the litigations to discuss the other possible bases for the sustaining of any of these demurrers, except insofar as they raise the limitations question.
4. Rogers also appealed from a summary judgment which was granted to Miles Laboratories, Incorporated on the basis of an affidavit establishing that it never produced DES as a miscarriage preventative. Subsequent to filing her notice of appeal, however, Rogers stipulated in the superior court to a dismissal of Miles from the action.
5. As we find adequate support for our holding in existing California law, we reject plaintiffs' invitation that we adopt for this state the so-called “enterprise liability” theory. However, for an excellent discussion of the possible application of that theory to DES cases, see Note, DES and a Proposed Theory of Enterprise Liability (1978) 46 Fordham L.Rev. 963.
6. There were actually several additional defendants named in Orser, but their involvement is not relevant to the issues before us.
7. See, e. g., Sell v. Volkswagen of America, Inc. (6th Cir. 1974) 505 F.2d 953, 955; Wetzel v. Eaton Corporation (D.Minn.1973) 62 F.R.D. 22, 28; Thompson-Hayward Chem. Co. v. Childress (1964) 277 Ala. 285, 169 So.2d 305, 309; Annotation, Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury (1973) 51 A.L.R.3d 1344, 1349; 63 American Jurisprudence Second, Products Liability, section 5, page 12; 1 Hursh & Bailey, American Law of Products Liability (2d ed. 1974) section 1:41, pages 125-126.
FN8. Should Rogers succeed in proving her allegation that Eli Lilly and Company manufactured the particular brand of DES ingested by her mother, she will arguably be unable to rely on the alternative liability theory since, as is apparent, it requires that a plaintiff be ignorant of the source of his or her injury. Proof that Eli Lilly and Company produced the DES taken by Rogers' mother would not, however, prevent her from having recourse to the concerted action theory discussed above. The distinction is that the alternative liability concept contemplates a situation where two or more defendants have behaved tortiously but fewer than all have actually caused the injury, whereas the theory of concerted action is that all joined defendants have in some manner brought harm to the plaintiff. (See Note, Supra, 46 Fordham L.Rev. 963, 985.). FN8. Should Rogers succeed in proving her allegation that Eli Lilly and Company manufactured the particular brand of DES ingested by her mother, she will arguably be unable to rely on the alternative liability theory since, as is apparent, it requires that a plaintiff be ignorant of the source of his or her injury. Proof that Eli Lilly and Company produced the DES taken by Rogers' mother would not, however, prevent her from having recourse to the concerted action theory discussed above. The distinction is that the alternative liability concept contemplates a situation where two or more defendants have behaved tortiously but fewer than all have actually caused the injury, whereas the theory of concerted action is that all joined defendants have in some manner brought harm to the plaintiff. (See Note, Supra, 46 Fordham L.Rev. 963, 985.)
FN9. The assertion that each defendant here has engaged in the tortious conduct of producing DES distinguishes our cases from a recent decision of Division Two of this court, Garcia v. Joseph Vince Co. (Sept. 15, 1978, 2 Civ. 51614) —- Cal.App.3d —-, 148 Cal.Rptr. 843. In that case, the plaintiff was injured in a fencing match by a sabre which was alleged to have been defectively manufactured by one of two fencing equipment suppliers. Because the allegedly defective sabre was either lost or mixed in with other sabres subsequent to the accident, the plaintiff could not establish the identity of the particular supplier who manufactured it. In affirming a judgment of nonsuit, the appellate court, relying on Wetzel v. Eaton Corporation, supra, 62 F.R.D. 22 (see discussion, Ante ) held that the alternative liability theory of Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, was inapplicable since the plaintiff could not show, other than by conjecture, which of the two suppliers had violated a duty to him by manufacturing the defective blade. (Garcia v. Joseph Vince Co., supra, 84 Cal.App.3d at pp. 843 - —-, 148 Cal.Rptr. at pp. 846-847.) Before so holding, the court had framed the issue as follows: “(W) here a plaintiff's evidence establishes that one, But not both, of two defendants produced a defective product, but the evidence does not disclose which one, is that sufficient evidence to permit a jury to determine liability of either defendant?” (Garcia, supra, at p. —-, 148 Cal.Rptr. at p. 845, italics added.) Here, in contrast, it is alleged that Each of the defendants has produced a defective product for the unwary public. Thus, like the hunters in Summers who negligently fired their guns, each of the defendant manufacturers of DES is alleged to have engaged in identical, risk-creating conduct.. FN9. The assertion that each defendant here has engaged in the tortious conduct of producing DES distinguishes our cases from a recent decision of Division Two of this court, Garcia v. Joseph Vince Co. (Sept. 15, 1978, 2 Civ. 51614) —- Cal.App.3d —-, 148 Cal.Rptr. 843. In that case, the plaintiff was injured in a fencing match by a sabre which was alleged to have been defectively manufactured by one of two fencing equipment suppliers. Because the allegedly defective sabre was either lost or mixed in with other sabres subsequent to the accident, the plaintiff could not establish the identity of the particular supplier who manufactured it. In affirming a judgment of nonsuit, the appellate court, relying on Wetzel v. Eaton Corporation, supra, 62 F.R.D. 22 (see discussion, Ante ) held that the alternative liability theory of Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, was inapplicable since the plaintiff could not show, other than by conjecture, which of the two suppliers had violated a duty to him by manufacturing the defective blade. (Garcia v. Joseph Vince Co., supra, 84 Cal.App.3d at pp. 843 - —-, 148 Cal.Rptr. at pp. 846-847.) Before so holding, the court had framed the issue as follows: “(W) here a plaintiff's evidence establishes that one, But not both, of two defendants produced a defective product, but the evidence does not disclose which one, is that sufficient evidence to permit a jury to determine liability of either defendant?” (Garcia, supra, at p. —-, 148 Cal.Rptr. at p. 845, italics added.) Here, in contrast, it is alleged that Each of the defendants has produced a defective product for the unwary public. Thus, like the hunters in Summers who negligently fired their guns, each of the defendant manufacturers of DES is alleged to have engaged in identical, risk-creating conduct.
11. We note that except for the proximate cause question raised by plaintiffs' failure to identify the manufacturer(s) of the drug taken by their mothers and the possible bar of the statute of limitations, both of which issues are discussed herein, the objections raised by defendants' general demurrers went to individual causes of action, rather than to the complaints as a whole. Defendants also supplemented their general demurrers by interposing numerous special demurrers for uncertainty.In Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 425, 282 P.2d 890, 895, our Supreme Court stated:“When a demurrer based upon both general and special grounds is sustained and the order mentions only the general ground, impliedly the ruling was made either without consideration of the special grounds or upon a determination that they are not well taken. If the general demurrer was sustained erroneously, the trial judge should be directed to consider the special grounds.” (See also Briscoe v. Reader's Digest Assoc., Inc. (1971) 4 Cal.3d 529, 544, 93 Cal.Rptr. 866, 483 P.2d 34.)
12. It is alleged in both complaints that the cancer caused by DES exposure is believed to strike after a minimum latent period of ten to twelve years.
13. Rogers' first amended complaint actually states that the hospital's letter was dated July 15, 1976, an obvious typographical error.
KLEIN, Presiding Justice.
ALLPORT and POTTER, JJ., concur.