Introduction

The case of Therese Marie Gastrow v. Eli Lilly Company et al., decided by the Supreme Court of Wisconsin on January 4, 1984, addresses the complex issue of liability in cases involving the drug diethylstilbestrol (DES). Therese Marie Gastrow, formerly known as Therese Marie Collins, filed a lawsuit against multiple pharmaceutical companies, alleging that DES caused her severe health issues resulting from her mother's consumption of the drug during pregnancy.

DES was synthetically administered to pregnant women from the late 1930s to 1971 to prevent miscarriages and other pregnancy-related complications. Subsequent research linked in utero exposure to DES with various cancers and reproductive issues in the offspring. However, identifying the specific manufacturer responsible for the DES taken by a plaintiff's mother proved challenging due to the drug's generic nature and the multitude of producers involved over decades.

Summary of the Judgment

The Supreme Court of Wisconsin reviewed an appeal filed by Therese Marie Gastrow after the Circuit Court for Milwaukee County granted summary judgment in favor of the defendants—various pharmaceutical companies—and denied Gastrow's motion to amend her complaint to name Eli Lilly and Company as the sole defendant.

The appellate court reversed part of the trial court's decision, allowing Gastrow to proceed with her claims against individual defendants. However, it affirmed the denial of her motion to amend the complaint to a single defendant and remanded the case for further proceedings. The court determined that traditional legal theories, such as alternative liability and concerted action, were inadequate for addressing the complexities inherent in DES litigation.

Instead, the court introduced a novel approach based on Wisconsin's comparative negligence doctrine, enabling the apportionment of liability among multiple defendants based on their relative contribution to the risk of injury. This decision marked a significant departure from existing precedents, aiming to provide an equitable remedy for plaintiffs unable to identify a specific manufacturer responsible for their injuries.

Analysis

Precedents Cited

The judgment extensively referenced several key cases and legal principles to frame its analysis:

• SINDELL v. ABBOTT LABORATORIES (California Supreme Court, 1980) - Introduced the market share liability theory, allowing plaintiffs to apportion damages based on each defendant's market share.
• SUMMERS v. TICE (California, 1948) - Established the alternative liability theory, where defendants are liable unless they can prove they did not cause the plaintiff's injury.
• Hall v. E.I. Du Pont De Nemours Co., Inc. (1982) - Proposed the enterprise liability theory, holding multiple defendants jointly liable based on industry-wide standards.
• BIELSKI v. SCHULZE (Wisconsin, 1962) - Emphasized the dynamic nature of common law and its capacity to adapt to new circumstances.
• MAYNARD v. PORT PUBLICATIONS, INC. (Wisconsin, 1980) - Clarified the standards for granting summary judgment.

Legal Reasoning

The court critically evaluated existing theories of liability and concluded that none sufficiently addressed the unique challenges of DES litigation in Wisconsin. Specifically:

• Alternative Liability: Dismissed due to the impracticality of applying it to potentially hundreds of defendants, making it unmanageable and unfair in apportioning damages.
• Concerted Action: Rejected as it requires proof of an agreement among defendants, which was unattainable given the disparate and independent actions of numerous drug companies.
• Enterprise Liability: Found unsuitable due to the vast number of defendants and the decentralized nature of the drug industry, making joint control over risk unattainable.
• Market Share Liability (Sindell): Acknowledged its fairness but criticized its practical implementation challenges, such as defining market share accurately and the potential for inflated liability percentages.

Consequently, the court adopted a tailored approach utilizing Wisconsin's comparative negligence statute (sec. 895.045, Stats.), which allows for the apportionment of liability based on each defendant's contribution to the harm. This method shifts the burden of proof to the defendants to demonstrate they did not cause the plaintiff's injury, thereby providing a viable path for plaintiffs like Gastrow to seek compensation despite the inability to identify a specific tortfeasor.

Impact

This judgment has profound implications for future DES litigation and similar cases where plaintiffs face challenges in pinpointing a specific defendant. By embracing comparative negligence, the Wisconsin Supreme Court:

• Facilitates broader access to remedies for plaintiffs harmed by generic or widely distributed products.
• Encourages pharmaceutical companies to maintain meticulous records and adhere to safety standards, knowing that negligence can be apportioned based on their market presence and conduct.
• Sets a precedent for other jurisdictions facing similar multi-defendant liability challenges, potentially influencing nationwide legal standards in product liability cases.

Complex Concepts Simplified

Comparative Negligence

Comparative negligence is a legal doctrine that allows the court to allocate liability among multiple defendants based on their respective contributions to the plaintiff's injury. Instead of holding each defendant entirely liable or none at all, the court assigns a percentage of responsibility to each party involved.

Market Share Liability

Market share liability is a legal concept where each defendant's liability is proportional to its share of the total market for the harmful product. This allows plaintiffs to recover damages even when they cannot identify the specific manufacturer responsible for their injury.

Summaries of Legal Theories

• Alternative Liability: Defendants are liable unless they can prove they did not cause the plaintiff's harm.
• Concerted Action: Defendants are liable if they acted together towards a common wrongful goal.
• Enterprise Liability: An entire industry can be held liable based on collective standards and practices.

Conclusion

The Wisconsin Supreme Court's decision in Gastrow v. Eli Lilly Company and Others marks a pivotal moment in product liability law, particularly concerning DES litigation. By rejecting existing theories that failed to accommodate the complexities of multi-defendant cases, the court established a framework grounded in comparative negligence. This approach not only provides a fair and equitable means for plaintiffs to obtain compensation despite difficulties in identifying specific defendants but also incentivizes pharmaceutical companies to maintain higher standards of safety and accountability. The judgment underscores the judiciary's role in evolving legal principles to ensure justice and fundamental fairness in the face of novel and complicated circumstances.