Dissenting Opinion in Sutowski v. Eli Lilly and Co.

By Paul E. Pfeifer

This is my dissenting opinion in a case that dealt with a drug, DES, that caused significant reproductive health problems to the daughters of the women who took the drug when they were pregnant in the 1950s. The daughters of the women who used DES were trying to recover damages for their health problems, our court rejected their claim of market share liability, and I dissented.

[Cite as Sutowski v. Eli Lilly & Co (1998), 82 Ohio St3d 347]

(No. 97-1142- Submitted April 7, 1998-Decided June 29, 1998)

ON ORDER CERTIFYING A QUESTION OF STATE LAW from the United States District Court, Northern District of Ohio, Eastern Division, No 1:97CV1283

This case comes before us as a certified question of state law from the United States District Court for the Northern District of Ohio, Eastern Division. In its certification order, the federal district recounted the following:

"Petitioner June Sutowski filed the instant diversity action in federal district court naming 18 companies as party-defendants (‘respondents' for purposes of this Order). Sutowski claims to have suffered damage to her reproductive system due to her in utero exposure to diethylstilbestrol (DES). Sutowski asserts that each of the named defendants is either a manufacturer a distributor, or a parent or successor corporation to a manufacturer or distributor, of DES. Her complaint includes counts consisting of strict liability under products liability, negligence under products liability, breach of warranty and market- share liability."

"In response, defendant/respondent Eli Lilly and Company (Eli Lilly) filed a motion for Judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c). Among other things, Eli Lilly argues that judgment must be entered against Sutowski on her claim for relief under the market-share theory of liability since Ohio has not recognized market-share. Eli Lilly relies upon the recent decision in Kurczi v. Eli Lilly & Co [113 f.8d1426 (6^th Cir. 1997)] in which the Sixth Circuit announced that if ‘directly presented with the issue, the Ohio Supreme Court would not adopt a market-share theory of liability in DES cases.' Id. at [1435].

Immediately preceding release of the Kurczi decision, this court decided Carrel v. Allied Products Corp (1997) 78 Ohio St. 3d 284 677 N.E.2d 795, holding that common-law causes of action survive enactment of the Ohio Products Liability Act unless specifically abrogated by that statute's language. The Sixth Circuit did not consider Carrel when deciding Kurczi. The federal district court, believing that our decision in Carrel eroded the Kurczi analysis, certified the question presented.

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PFEIFER J., dissenting. The right to remedy clause of the Ohio Constitution mandates that "every person, for an injury done him in his ... person, ... shall have remedy by due course of law." Section 16, Article I Ohio Constitution. In Burgess v. Eli Lilly & Co. (1993), 66 Ohio St3d 59, 62,609 N.E.2d 140, 142, this court stated, "This court has previously identified a practical and essential element of the Constitution's right to remedy clause: "When the Constitution speaks of remedy and injury to person, property or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner." (Emphasis added.)" Quoting Hardy v. VerMeulen (1987) 82 Ohio St3d 45, 47, 512 N.E.2d 626, 628. The majority appears determined to ensure that the plaintiffs do not receive their constitutional right to a remedy.

I embrace the market-share liability theory outlined in Goldman v. Johns-Manville Sales Corp (1987) 33 Ohio St3d 40, 513 N.E.2d 691. It would allow a remedy in a meaningful manner, assuming its elements can be established, without trammeling the rights of defendants. DES manufacturers can avoid liability by establishing that they did not distribute DES in Ohio.

It is difficult to imagine a case better suited to market-share liability. DES was fungible, impossible to differentiate, and most important, it was all bad. Nevertheless, the majority today essentially tells the injured women: We know you have been injured and we know that certain companies manufactured and distributed a defective drug to you or your mother, but because you do not know which specific company is responsible for the DES specific to you, we will hold none of the offending drug manufacturers accountable for the devastating harm they caused. Such a result does not comport with the constitutional mandate to provide a right to a remedy in a meaningful manner.

It is unconscionable that any profoundly injured woman Of the estimated four hundred thirty thousand Ohio women who took DES should be prohibited from successfully pursuing constitutionally protected compensation for injuries done simply because she can only trace the harm to a group of manufacturers of the same product. The fungibility of DES makes it virtually impossible to pinpoint a specific defendant. Applying market-share liability is the only avenue for DES-injured women to successfully pursue a meaningful remedy.

With their answer to the certified question, the majority is more comfortable shielding the defendant drug companies than with applying a theory of recovery that would allow the plaintiffs to go forward with their case. The majority's decision has the perverse effect of protecting a defendant class that undeniably manufactured, released, and profited from a horribly defective product while denying a chance of recovery to a class of injured women that undeniably did nothing wrong, except suffer the consequences of the ingestion of the defendants' defective drugs. The right-to-remedy clause has been turned on its head and the majority has effectively given these defendants the equivalent of a common-law right-to-immunity. DES-injured women will have to content themselves with knowing that they "engender sympathy." I dissent.