BROWN v. 68 (1986)

This petition for writ of mandate and/or prohibition, brought by plaintiffs in “complex litigation,” challenges several pretrial rulings which will affect the trials of all San Francisco cases involving injury from the drug diethylstilbestrol (DES).   We issued the alternative writ in order to consider these significant rulings.   Having now concluded that the trial court ruled correctly in all respects, we discharge the alternative writ and deny the petition for a peremptory writ.

Under section 19 of the California Standards of Judicial Administration recommended by the Judicial Council, the presiding judge of the San Francisco Superior Court has designated the DES cases (some 69 cases to date) “complex litigation” and has assigned one judge to hear all pretrial motions.   One of this judge's first acts was to assign the complex litigation a separate case number.   Thus, while each plaintiff's action has its own case number and independent existence, all the law and motion rulings are made in the complex litigation case.   These rulings are then binding on the individual cases (both those on file and those to be filed, according to the court's general orders) unless the judge, “upon good cause shown,” specifically excludes individual cases from the orders.

A typical complaint in the complex litigation names over 170 different defendant drug companies who are alleged to have been engaged in manufacturing and distributing the synthetic estrogen commonly referred to as DES, a substance used by the plaintiff's mother for the purpose of preventing miscarriage, but which caused injury to the plaintiff after exposure in utero to the drug.   A typical complaint alleges that the various defendants produced DES from the same formula and seeks to hold liable those defendants who manufactured a substantial share of the appropriate market for the drug if the plaintiff is unable to identify the specific manufacturer of the brand of DES which caused the plaintiff's injuries.   The complaint alleges that each defendant knew that DES was extremely dangerous and unsafe for use in the prevention of miscarriages because it was known to be cancer-causing.   The complaint contains causes of action for strict liability/defective product, negligent manufacture, breach of express and implied warranty, and fraud.

Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 established that a DES plaintiff unable to identify the manufacturer of the DES ingested by his or her mother may join as defendants the manufacturers of a “substantial percentage” of the DES available to the mother and may seek to hold each defendant liable for the portion of the judgment represented by that defendant's share of the market in the product.   Most or all of the lawsuits in the complex litigation are brought under the Sindell theory by plaintiffs who do not expect to prove which defendants manufactured the DES their mothers ingested.

The pretrial order in issue in this writ proceeding (general order No. 11) resolves issues affecting trial of a “Sindell ” case and governing application of strict liability principles to suits involving prescription drugs.   Plaintiffs, represented by “liaison counsel” appointed by the trial court to represent them in the complex litigation, challenge the court's rulings on these issues.   They contend that, unless corrected, fundamental errors of law made by the court will infect all the trials and require reversal of any judgments not favorable to plaintiffs.   We now consider their assignments of error.

(1) Design Defect

 Plaintiffs seek to hold the manufacturers strictly liable in tort for injuries caused by design defects in DES.   The trial court has ruled, however, that the design defect theory is not available for injury alleged to have been caused by a prescription drug.   Applying comment k of the Restatement Second of Torts section 402A,¹ the court has ruled that manufacturers of DES may be held strictly liable only for a failure to warn of known or reasonably knowable defects.   Plaintiffs challenge this ruling, claiming that it conflicts with the California Supreme Court's decision in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 and that it interjects negligence considerations into a strict liability cause of action.

In Barker, the plaintiff was injured when he jumped from a high-lift front end loader as it started to tip.   He appealed a defense verdict, challenging the court's use of an instruction stating “ ‘that strict liability for a defect in design of a product is based on a finding that the product was unreasonably dangerous for its intended use․’ ”  (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 422, 143 Cal.Rptr. 225, 573 P.2d 443, fn. omitted.)   The Barker court reversed, establishing the following definition of a design defect:  “․ a product is defective in design either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if, in light of the relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design.”  (Id., at pp. 418, 435, 143 Cal.Rptr. 225, 573 P.2d 443.)   The court explained:  “This dual standard for design defect assures an injured plaintiff protection from products that either fall below ordinary consumer expectations as to safety, or that, on balance, are not as safely designed as they should be.   At the same time, the standard permits a manufacturer who has marketed a product which satisfies ordinary consumer expectations to demonstrate the relative complexity of design decisions and the trade-offs that are frequently required in the adoption of alternative designs.   Finally, this test reflects our continued adherence to the principle that, in a product liability action, the trier of fact must focus on the product, not on the manufacturer's conduct, and that the plaintiff need not prove that the manufacturer acted unreasonably or negligently in order to prevail in such an action.”  (Id., at p. 418, 143 Cal.Rptr. 225, 573 P.2d 443, original emphasis.)

The first part of the Barker test reflects the warranty heritage upon which California product liability doctrine rests in part.   Implicit in a product's presence on the market is a representation that it will safely do the jobs for which it was built, and when the product fails to satisfy ordinary consumer expectations as to safety in its intended or reasonably foreseeable operation, a manufacturer is strictly liable for resulting injuries.  (Barker v. Lull Engineering Co., supra, 20 Cal.3d at pp. 429–430, 143 Cal.Rptr. 225, 573 P.2d 443.)

The second part of the test is used because in many situations the consumer would not know what to expect because he or she would have no idea of how safe the product could be made.   Under the second test, “․ a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.  [Citations.]”  (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443, fn. omitted.)   In applying that standard, the jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.  (Id., 20 Cal.3d at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443.)

Plaintiffs contend that Barker, as the California Supreme Court's most recent formulation of the law on design defect, applies to prescription drugs such as DES.   They argue that either prong of the design defect test could easily accommodate an action for design defect in DES.

Defendants assert that the trial court has correctly ruled that the Barker standards cannot be applied to allegations of defective design of prescription drugs and correctly found that California has adopted comment k of the Restatement Second of Torts section 402A.

Comment k addresses the problem of “[u]navoidably unsafe products,” such as the vaccine for the Pasteur treatment of rabies, “which not uncommonly leads to very serious and damaging consequences when it is injected.”   The comment states, in substantial part:  “․ Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve.   Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.   The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician.   It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk.   The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because [it] has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

Several Court of Appeal decisions have applied comment k as a standard for assessing liability for injuries caused by prescription drugs.  (See, e.g., McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 86–87, 150 Cal.Rptr. 730;  Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 987–989, 95 Cal.Rptr. 381;  Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 708–711, 60 Cal.Rptr. 398.)   Relying upon these decisions, the trial court here concluded that comment k and closely related comment j ² of the Restatement Second of Torts section 402A should be applied to DES actions.   The court rejected the Barker test, finding that the first prong of the test, the “consumer expectation” prong, did not fit because DES was not “within the common experience of ordinary consumers.”  (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 127, 184 Cal.Rptr. 891, 649 P.2d 224.)   The court found that Barker's second prong, the “risk-benefit” analysis, was equally inappropriate because the weighing process involves consideration of possible alternative designs, whereas the formula for DES is a scientific constant, and the product could not be designed differently.   The court below finally concluded that adoption of the Barker test in cases involving prescription drugs would require an abandonment of the policy considerations underlying comments j and k, which are a part of the strict liability law of this state.   Having so concluded, the court determined that strict liability would apply only if the plaintiff in each case could establish a product defect based on a failure to warn.

The trial court's application of comment k and rejection of Barker was correct under then-existing law.   The two cannot be completely reconciled, and at the time of the trial court's ruling appellate authority had uniformly embraced comment k.  (But see Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 705–725, 200 Cal.Rptr. 870, 677 P.2d 1147 (dis. opn. of Bird, C.J.).)   However, shortly after the trial court ruled here, Division Four of this court attempted to strike a balance between comment k and Barker.  (See Kearl v. Lederle Laboratories (1985) 172 Cal.App.3d 812, 218 Cal.Rptr. 453.)   Whereas comment k suggests design immunity for all prescription drugs, and Barker would test a product only under the “consumer expectation” and “risk-benefit” analyses, Kearl advocated a variant of the risk-benefit weighing process, the result of which would determine whether comment k immunity should be accorded.

In Kearl the plaintiff was rendered paralyzed by the Sabin polio vaccine.   The Kearl court discussed extensively the authorities in California and elsewhere, focusing upon the tension between the goal of protecting the public from risks from improperly designed products and the need to foster development of beneficial prescription drugs.   Before announcing its approach to the problem, the Kearl court summarized and criticized existing law:  “Although, as we have shown, the rule against subjecting some special products to strict liability design defect analysis is well established, its application has not often been well explained.   Instead, the rule is frequently stated in conclusory fashion accompanied by little more than a reference or citation to Restatement Second of Torts section 402A, comment k, which sets out the basic rule.   Because comment k itself refers to prescription drugs and vaccines as examples of products that are ‘unavoidably unsafe’ and hence not ‘unreasonably dangerous' as long as they are properly manufactured and a proper warning is given, defendant suggests we need inquire no further before we brand the design defect evidence and instruction here [which followed the Barker model] as error.   We prefer, however, to proceed with more caution before we confer such special protection on a product.

“Although we agree in principle with the unavoidably dangerous products exemption—i.e., we agree that some special highly beneficial and yet inherently risky products may be deemed unavoidably dangerous and hence exempt from strict products liability design defect analysis as a matter of law—we are uncomfortable with the rather routine and mechanical fashion by which many appellate courts have concluded that certain products, particularly drugs, are entitled to such special treatment.   Indeed, ‘[t]he statement that drugs are unavoidably [dangerous], and therefore within the protection of Comment k, has become almost tautological.’  (Comment, [Can a Prescription Drug be Defectively Designed?—Brochu v. Ortho Pharmaceutical Corp. (1981) ] 31 De Paul L.Rev. [247] at 254.)”  (Kearl v. Lederle Laboratories, supra, 172 Cal.App.3d at pp. 828–829, fn. omitted, 218 Cal.Rptr. 453.)

The Kearl court concluded that the decision “as to whether a drug, vaccine, or any other product triggers unavoidably dangerous product exemption from strict liability design defect analysis, poses a mixed question of law and fact and can be made only after evidence is first taken, out of the jury's presence, on the relevant factors to be considered.  [Citations.]  A trial court should take evidence as to:  (1) whether, when distributed, the product was intended to confer an exceptionally important benefit that made its availability highly desirable;  (2) whether the then-existing risk posed by the product both was ‘substantial’ and ‘unavoidable’;  and (3) whether the interest in availability (again measured as of the time of distribution) outweighs the interest in promoting enhanced accountability through strict liability design defect review.”  (Kearl v. Lederle Laboratories, supra, 172 Cal.App.3d at pp. 829–830, fns. omitted, 218 Cal.Rptr. 453.)

With all due respect to the Kearl court, we are unable to adopt its “mini-trial” approach.   We see no reason to impose such a condition on comment k immunity and find the Kearl mini-trial unworkable.³

Prior to Kearl, comment k, adopted and promulgated by the American Law Institute in 1963 and 1964 and first published in 1965, had been followed unflinchingly in California almost since the advent of strict liability in tort.   Indeed, the Kearl court discovered only one reported decision sanctioning strict product liability design defect recovery on a prescription drug, that decision from the First Circuit of the United States Court of Appeals.  (See Brochu v. Ortho Pharmaceutical Corp. (1st Cir.1981) 642 F.2d 652.)   Even the result in that case could have been achieved on a design defect theory based on negligence.  (Kearl v. Lederle Laboratories, supra, 172 Cal.App.3d at p. 827, 218 Cal.Rptr. 453.)   The Kearl mini-trial approach to strict liability law appears to be novel.

Novelty alone is not a ground for rejection.   But we must exercise extreme caution before adopting a new approach to problems studied extensively and solved differently for decades.   Solutions for perceived problems (in this case the prior “routine” application of comment k immunity) often interject more serious problems than they solve.

Our most serious (for us, decisive) objection to the Kearl mini-trial approach is to its requirement that the trial judge hear and resolve mixed questions of law and fact.   It is generally the duty of the court to state the law precisely (in instructions to the jury), and the duty of the trier of fact to resolve factual questions within the framework of the law.  (See Evid.Code, §§ 310, 312;  Weiner, The Civil Jury Trial and the Law-Fact Distinction (1966) 54 Cal.L.Rev.1867.)   When an appellate court characterizes an issue as “a mixed question of law and fact” without explaining the applicable law, we consider it appropriate to ask whether the court has merely deferred resolution of legal issues to a later day and deputized trial courts to take a first step in resolving the outstanding legal issues.

Of the three questions the Kearl court identified as the focus of the mini-trial, two—whether the product was intended to confer an exceptionally important benefit, and whether there was a substantial and unavoidable risk posed by the product—raise only questions of fact.   Properly instructed about the meaning of the terminology in the questions, a trier of fact could determine the existence of risks and benefits.   The final question—whether the interest in availability outweighed the interest in promoting enhanced accountability—is an open-ended question of public policy.   The Kearl court failed to articulate standards for how these interests would be balanced by the trial court.   What degree of benefit should outweigh what level of risk?   How far must the scales tip in order to provide design immunity for a particular drug?

The Kearl court has left the immunity question to be decided ad hoc by various trial judges according to standards to be set by those judges, subject to an unspecified form of review by the appellate courts.   This could lead to widely disparate treatment of the same drugs by different courts and different judges of the same court.   Perhaps at the review stage the appellate courts would harmonize the cases and establish legal guidelines satisfying the Kearl objective.   But if the lower courts were still permitted to weigh the pros and cons of immunity on a case-to-case basis (as opposed to the appellate courts ruling as a matter of law that particular drugs are immune from design defect strict liability recovery), no uniformity could be expected in the treatment of a particular drug.   This could mean that two different judges (not the triers of fact in their cases) could hear the same evidence about risks and benefits of the same drug, and one could properly instruct the jury on design defect and the other properly bar the cause of action because of comment k immunity.

Judges are often asked to make determinations of fact which will influence the conduct of the jury trials over which they preside.   But these decisions are typically related to the admissibility of evidence at trial.  (Evid.Code, §§ 310, subd. (a), 400–406.)   Here, the Kearl decision proposes that the court be required to rule on factual questions and weigh and balance evidence central to a plaintiff's case.   We cannot follow this unprecedented approach.   We approve the trial court's decision to follow comment k.⁴

(2) Failure to Warn

 Applying comment k, the trial court here concluded that “whether strict liability will apply in the DES cases before the Court will depend on whether a plaintiff can establish a product defect based on a failure to warn.”   It then addressed the question of whether the defense could introduce “state of the art” evidence to prove that any dangers of which the defendants failed to warn the public were not known or reasonably knowable at the time the drug was manufactured or marketed.   Relying on statements in Toole v. Richardson-Merrell Inc., supra, 251 Cal.App.2d 689, 710–711, 60 Cal.Rptr. 398, repeated in Carmichael v. Reitz, supra, 17 Cal.App.3d 958, 988–989, 95 Cal.Rptr. 381, the court concluded that “state of the art” evidence was relevant because strict liability depended upon the facts surrounding manufacture and sale of the product.

Plaintiffs contend that by requiring a manufacturer to warn of only known or reasonably knowable dangers, the court has introduced a negligence standard into a strict liability cause of action.   They cite the dissent of the Chief Justice of the California Supreme Court in Finn v. G.D. Searle & Co., supra, 35 Cal.3d 691, 723–724, 200 Cal.Rptr. 870, 677 P.2d 1147, for the proposition that Toole and Carmichael do not reflect the current state of the law.

In Finn, the majority of the court mentioned two lines of authority:  “one imposes strict liability for a failure to warn regardless of defendant's knowledge or ability to know of the side-effect-causing injury [citation], and one focuses first on the manufacturer's actual or constructive knowledge.  [Citations.]”  (Finn v. G.D. Searle & Co., supra, 35 Cal.3d at p. 699, 200 Cal.Rptr. 870, 677 P.2d 1147.)   The majority concluded that it “need not favor one position over the other because both plaintiff's theory and proposed instructions were based on the premise that Searle's duty to warn extended only to effects which were or should have been known at the time plaintiff took Diodoquin.”  (Ibid.)

In dissent, the Chief Justice acknowledged that the plaintiff's theory accurately reflected the state of the case law at the time of the trial (as articulated in Toole v. Richardson-Merrell Inc., supra, 251 Cal.App.2d 689, 60 Cal.Rptr. 398, and Carmichael v. Reitz, supra, 17 Cal.App.3d 958, 95 Cal.Rptr. 381), but proposed that California follow the “better rule” that “liability should not be conditioned upon the manufacturer's having knowledge or reason to know of the danger.”  (Finn v. G.D. Searle & Co., supra, 35 Cal.3d at p. 723, 200 Cal.Rptr. 870, 677 P.2d 1147 (dis. opn. of Bird, C.J.).)   The Chief Justice's view is distinctly the minority view, and even though other courts purport to apply strict liability theory to failure-to-warn cases, “the tests actually applied condition imposition of liability on the defendant's having actually or constructively known of the risk that triggers the warning.  [Citations.]”  (Kearl v. Lederle Laboratories, supra, 172 Cal.App.3d at p. 832, fn. omitted, 218 Cal.Rptr. 453.)

In our view, adoption of comment k immunity for prescription drugs would be a meaningless act without also embracing comment j's negligence-like standard for warnings:  “․ the seller is required to give warning against [a danger not generally known], if [the seller] has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger․”  (Rest.2d Torts, supra, § 402A, com. j.)   The policy reasons for providing design defect immunity for prescription drugs also counsel against imposing strict liability upon manufacturers for failure to warn of risks not known or reasonably knowable.

In Kearl, the court recited the several dangers from imposing strict liability upon manufacturers of prescription drugs:  “․ the enhanced prospect of liability posed by strict liability analysis might, in some cases, substantially affect a product's availability.   In addition to the problem of delayed release (or nonrelease) mentioned above, we can easily conceive of situations in which a manufacturer's cost of insuring against strict liability for injuries resulting from product design would ‘place the cost of research development and eventual marketing of new [products] beyond that which manufacturers, especially smaller manufacturers, are willing to risk․’  [Citations.]   Nor is it difficult to imagine a situation in which insurers would be unwilling to underwrite such risks, or do so at a practical cost․  Furthermore, we believe it likely that the increased cost of product production—resulting from increased insurance costs—might ‘place the price of necessary [products] outside the reach of those who most need them’ [citation], or that the prospect of strict liability might cause manufacturers to remove some products from the market, or decline to develop them.  [Citations.]”  (Kearl v. Lederle Laboratories, supra, 172 Cal.App.3d at pp. 823–824, 218 Cal.Rptr. 453.)

The manufacturers (and therefore the public) would receive little benefit from immunity from strict liability for design defects if they were then subjected to strict liability for failure to warn the consumer of unknown dangers which were not reasonably discoverable.   If the product's design presents an unknown and not reasonably knowable danger to the public, the manufacturer is in no better position to warn the public than it is to remove the danger or withdraw the product from the market.   If strict liability for unexpected dangers is to be imposed, we see no significant difference between doing so under the “design defect” theory and applying it under the “failure to warn” theory.   Comment j is a necessary adjunct to comment k's design immunity.   The trial court here was correct in ruling that “state of the art” evidence could be introduced on the failure-to-warn theory of liability.

(3) Breach of Warranty and Fraud

The trial court granted judgment on the pleadings barring plaintiffs from prosecuting their causes of action for breach of warranty and fraud in any suits tried under the Sindell market share theory.  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.)   The court found that statutes setting forth conditions for fraud and breach of warranty liability contemplated that the acts would be taken by identified defendants.   The court read Sindell to create a new remedy for a plaintiff unable to identify the manufacturer of the product used, not to provide a general exception to the requirement that the defendant's connection with the wrongful act must be proved.

Plaintiffs argue that Sindell did not create a whole new theory of liability, but simply modified one of the elements of proof where “science and medicine had created fungible goods, such as DES, which were harmful and could not be traced to a specific producer.”  Sindell relieved the plaintiff of the burden of identifying specific manufacturers and shifted the burden of proof to defendants to exculpate themselves from liability.

The Sindell decision does not itself answer plaintiffs' criticism of the trial court's ruling.   Although the Sindell plaintiff had asserted causes of action for strict liability, fraud, and breach of warranty, the Sindell court did not indicate whether all three causes of action could be tried under the market share approach.   We must answer the question left open by Sindell.

 Although it might be possible to apply the market share approach to recovery under a fraud or breach of warranty theory, we do not view Sindell as opening up those avenues for recovery.   The Sindell market share approach works for a products liability cause of action because the products are fungible, and such fungibility is relatively simple to prove.   In contrast to the products, representations and warranties made by the various manufacturers are likely to differ widely.   While it may be theoretically possible for a plaintiff to prove that all defendant manufacturers of the drug DES made the same representations and warranties, the practical remoteness of this possibility counsels against confusing the market share lawsuits with such proof.

For a drug such as DES, which is not ingested by the ultimate victims, using the market share approach to proving causes of action for fraud and breach of warranty would also add difficult questions about whether plaintiffs should be permitted to rely upon misrepresentations to their mothers or on breaches of warranties made to their mothers.   Could victims who were not recipients of misrepresentations or breached warranties recover on fraud or breach of warranty theories?   Could their mothers be considered their agents for purposes of receiving the misrepresentations or warranties?   Without specific directions from the Sindell court, we see no reason to add these complications to a market share lawsuit.

(4) Joint and Several Liability

 The trial court ruled that defendants could be held severally liable, based upon market share, but that they could not also be held jointly liable for plaintiffs' entire injuries.   Thus, if a plaintiff sued less than all defendants or if some defendants could not be forced to pay judgments against them, plaintiffs would not fully recover for the damages assessed.   Each defendant could be asked to contribute only the portion of damages which correlated with its percentage of market share.

Plaintiffs argue that the court erred in not permitting joint liability among Sindell tortfeasors.   They contend that nothing in Sindell suggested a limitation of plaintiffs' recovery, and that the requirement of joining a substantial share of the market would not make sense without joint liability.   They also note that the Sindell court made a suggestion about defendants' cross-complaining against absent manufacturers, which suggestion is consistent with the joint liability approach.

Defendants cite language from Sindell which they claim shows that the court intended only several liability.   They also quote several law review articles taking that view of Sindell.   They contend that when the Sindell court rejected the concerted action and enterprise liability theories of recovery, “it determined that DES manufacturers, as a matter of law, were not joint tortfeasors․”  Only one of the manufacturers in any given case will have produced the product alleged to have caused the injury, they contend.

Sindell itself provides little in the way of clues about whether liability should be joint and several.   The complaint there alleged joint liability, but the opinion did not discuss the propriety of such an allegation under its market share approach.   At one point in the analysis, the court noted that “[a]s defendants candidly admit, there is little likelihood that all the manufacturers who made DES at the time in question are still in business or that they are subject to the jurisdiction of the California courts ․”  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 610, 163 Cal.Rptr. 132, 607 P.2d 924), but it did not discuss how inability to recover from those manufacturers might affect the plaintiff's judgment.

Shortly after the above observation, however, the court stated:  “The most persuasive reason for finding plaintiff states a cause of action is that advanced in Summers [v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1]:  as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury.”  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 610–611, 163 Cal.Rptr. 132, 607 P.2d 924.)   The juxtaposition of those comments could be read to show that the court did not intend the plaintiff to suffer even diminution of the award from inability to recover from some of the defendants.   But it is apparent from the context that these statements were made for another purpose.   Plaintiffs' meaning cannot properly be attributed to the court's comments.

Later in the opinion, the Sindell court stated:  “The presence in the action of a substantial share of the appropriate market also provides a ready means to apportion damages among the defendants.   Each defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiff's injuries․  Once plaintiff has met her burden of joining the required defendants, they in turn may cross-complain against other DES manufacturers, not joined in the action, which they can allege might have supplied the injury-causing product.  [¶ ] Under this approach, each manufacturer's liability would approximate its responsibility for the injuries caused by its own products.   Some minor discrepancy in the correlation between market share and liability is inevitable;  therefore, a defendant may be held liable for a somewhat different percentage of the damage than its share of the appropriate market would justify.   It is probably impossible, with the passage of time, to determine market share with mathematical exactitude.   But just as a jury cannot be expected to determine the precise relationship between fault and liability in applying the doctrine of comparative fault [citation] or partial indemnity [citation], the difficulty of apportioning damages among the defendant producers in exact relation to their market share does not seriously militate against the rule we adopt․  [¶ ] ․ Most of their arguments ․ are based upon the assumption that one manufacturer would be held responsible for the products of another or for those of all other manufacturers if plaintiff ultimately prevails.   But under the rule we adopt, each manufacturer's liability for an injury would be approximately equivalent to the damage caused by the DES it manufactured.”  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 612–613, fn. omitted, 163 Cal.Rptr. 132, 607 P.2d 924.)

Based on the Sindell court's rejection of the assumption that one manufacturer would be held responsible for the products of another and on the court's statement that each manufacturer's liability would approximate the damage caused by the DES it manufactured, the trial court here concluded that Sindell had established a rule of several liability.   But it is apparent that the Sindell court did not intend to and did not address the critical question of whether joint liability in some form should be imposed.   Any attempt to read the court's intentions from passages addressing other problems is unlikely to succeed.   Had the court intended to rule on the question of joint and several liability, it would have faced the issue squarely, not decided it obliquely.

Although most of the commentators admit that Sindell did not decide whether several or joint and several liability should be applied to a market share case (see, e.g., Schwartz & Mahshigian, Failure to Identify the Defendant in Tort Law:  Towards a Legislative Solution (1985) 73 Cal.L.Rev. 941, 957;  Note, Beyond Enterprise Liability in DES Cases—Sindell (1981) 14 Ind.L.Rev. 695, 721;  Comment, The Market Share Theory:  Sindell's Contribution to Industry-Wide Liability (1981) 19 Houston L.Rev. 107, 131;  Note, Products Liability:  Sindell v. Abbott Laboratories:  Proportional Unidentifiable Fairness and the Oklahoma Perspective (1981) 34 Okla.L.Rev. 843, 853;  Note, Market Share Liability:  An Answer to the DES Causation Problem (1981) 94 Harv.L.Rev. 668, 673;  Note, Sindell v. Abbott Laboratories:  A Market Share Approach to DES Causation (1981) 69 Cal.L.Rev. 1179, 1194), these commentators and others attempt to interpret Sindell as revealing one theory or the other.

With only minor exceptions (see Note, Beyond Enterprise Liability in DES Cases—Sindell, supra, 14 Ind.L.Rev. at p. 721;  Note, DES:  Judicial Interest Balancing and Innovation (1981) 22 Boston College L.Rev. 747, 770), the commentators cited above and others have concluded that the Sindell court either did or should have adopted the theory of several liability.  (See also Roberts & Royster, DES and the Identification Problem (1983) 16 Akron L.Rev. 447, 466;  Note, Industry-Wide Liability and Market Share Allocation of Damages (1981) 15 Ga.L.Rev. 423, 443–446;  Note, California Expands Tort Liability Under the Novel “Market Share” Theory:  Sindell v. Abbott Laboratories (1981) 8 Pepperdine L.Rev. 1011, 1032.)

The clearest and most concise analysis is in the Note entitled Sindell v. Abbott Laboratories:  A Market Share Approach to DES Causation, supra, 69 Cal.L.Rev. at pp. 1194–1196, where the author makes the telling point that pro rata market share several liability is more consistent with the goal of the Sindell decision to reproduce what would occur if identification of the manufacturer were possible in all cases:  “The producer of twenty percent of the market held liable for twenty percent of the damages in all DES suits should pay the same amount as would be paid if twenty percent of plaintiffs could identify that same supplier and recover one hundred percent of their damages.   To hold that same supplier jointly and severally liable for one hundred percent of the damages in one hundred percent of all DES suits could increase liability above the total amount that would be imposed in the hypothetical world of perfect identification.   Although joint and several liability could generate a result similar to pro rata market share liability when all defendants are solvent and before the court, the court should have held that each supplier's maximum liability is fixed by its market share in order to ensure that no producers incur excess liability.”  (Id., at p. 1196.)

In the face of the various proponents of several liability, plaintiffs argue primarily that joint liability is the norm in California, and that if the Sindell court had intended a different rule, it would have stated so more clearly.   However, they do not press for complete joint liability for the entire judgment.   They propose instead a “middle” position that lies between joint and several liability and straight several liability.   Their position is known as “proportional several liability” and entitles the plaintiffs to full recovery of the judgment, with the market shares of the contributing defendants and only the contributing defendants used to measure their proportionate liability.   Thus, as in true joint liability, the contributing defendants will cover the obligations of absent defendants or those against whom plaintiffs are unable to recover, but unlike true joint liability, their contributions will be measured by the relationship between the market shares of the various contributing defendants.

We reject plaintiffs' unprecedented middle position.   In the event that all manufacturers are solvent and subject to suit in California, plaintiffs' goal of full recovery can be achieved through naming and serving all manufacturers.   To the extent plaintiffs risk being unable to recover from insolvent manufacturers and those not subject to suit in California, this risk is similar to that encountered by a plaintiff who has identified the manufacturer of the product.   A plaintiff with an identified manufacturer may fully recover or may recover nothing, depending upon whether the manufacturer is solvent and may be sued in California.   The Sindell plaintiffs have a surer path to recovery because at least some manufacturers will likely be solvent and subject to suit in California.   We do not find it unreasonable to burden the thus advantaged Sindell market share plaintiffs with some obstacles to full recovery.

Plaintiffs' proposal could seriously burden the solvent manufacturer which has a large market share.   That defendant would usually be sued (in order efficiently to satisfy the “substantial percentage” requirement) and would have to take action against all defendants with smaller market shares to insure their contribution.   Solvent defendants could end up paying much more than would be justified by their market shares.   Plaintiffs' proposal would also present cumbersome administrative difficulties.   In those cases which actually went to trial and judgment, the defendants' shares of the judgments would be subject to constant readjustment, depending upon how successful the plaintiffs were in recovering from each defendant and depending upon what cross-complaints and later indemnity actions were brought by the defendants.   In those actions with many defendants, these complexities would be multiplied.   The advantage of ensuring full recovery by a Sindell market share plaintiff does not justify these burdens on the defendants and on the recovery system.⁵

In summary, we have concluded that the plaintiffs' various challenges to the trial court's general order No. 11 are without merit.   The alternative writ is discharged, and the petition for a peremptory writ is denied.

FOOTNOTES

1.   Comment k of the Restatement Second of Torts section 402A (“Special Liability of Seller of Product for Physical Harm to User or Consumer”) provides as follows:  “k.   Unavoidably unsafe products.   There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.   These are especially common in the field of drugs.   An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected.   Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve.   Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.   The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician.   It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk.   The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because [it] has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

2.   Comment j of the Restatement Second of Torts section 402A provides:  “j.   Directions or warning.   In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.   The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and [it] is not required to warn against them.   Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if [the seller] has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger.   Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.  [¶ ] ․ [¶ ] Where warning is given, the seller may reasonably assume that it will be read and heeded;  and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

3.   We note that the California Supreme Court has not considered the validity of the Kearl approach.   Although a petition for review was filed in Kearl, the petition was subsequently withdrawn.

4.   We agree with the trial court that comment k is an implied exception to the design defect analysis of Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443.   We do not endorse the trial court's reasoning in other respects, however.   The consumer expectation prong of Barker does not require that the product be within the common experience of the ordinary consumer.  (See Akers v. Kelley Company, Inc. (1985) 173 Cal.App.3d 633, 651, 219 Cal.Rptr. 513.)   And while an alternative formula for DES may not be possible, risk/benefit analysis would consider whether alternative miscarriage medicine was available, not the unreasonably narrow question of whether an alternative formula for DES could have been used.   Thus, if comment k were found inapplicable in California, there would be no impediment to application of Barker's two-prong test for design defect.

5.   Having reached this conclusion, we need not consider how these cases may be affected by the “Fair Responsibility Act of 1986.”   That measure, adopted as Proposition 51 in the June 3, 1986, primary election (amending Civ.Code, § 1431, and adding Civ.Code, §§ 1431.1–1431.5), changes the law of joint and several liability for “non-economic” damages.

BARRY-DEAL, Associate Justice.

WHITE, P.J., and SCOTT, J., concur.