Opinion
CA 02-00648
October 1, 2002.
Appeals from an order of Supreme Court, Erie County (O'Donnell, J.), entered June 13, 2001, which, inter alia, denied the cross motion of defendants-appellants seeking renewal.
WALSH, ROBERTS GRACE, BUFFALO (JAMES R. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT MERCK CO., INC.
ALLEN LIPPES, BUFFALO (CHRISTOPHER M. DUGGAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.
OPINION AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion of defendants The Abbott Laboratories, Dart Industries, Inc., p/k/a Rexall Drug Company, Inc., Eli Lilly and Company, S.E. Massengill, n/k/a SmithKline Beecham Corp., Merck Co., Inc., E.R. Squibb Sons, Inc. and The Upjohn Company in part and dismissing the claims of plaintiffs Judith Shepherd Armata, Kathleen Anna Maffa-Krailo and Marianne Margaret Alberigi asserting non-identification theories of liability and as modified the order is affirmed without costs.
Plaintiffs commenced this action in New York alleging that they sustained injuries resulting from their in utero exposure to diethylstilbestrol (DES). Plaintiffs Judith Shepherd Armata, Kathleen Anna Maffa-Krailo and Marianne Margaret Alberigi (collectively, Massachusetts plaintiffs) were born in and are residents of the Commonwealth of Massachusetts and another plaintiff, Lorraine Allison Therrien, was born in and is a resident of Connecticut. As we recognized in a prior appeal, the parties have conceded that Massachusetts substantive law is applicable to the claims of the Massachusetts plaintiffs ( Armata v. Abbott Labs., 284 A.D.2d 911). Supreme Court previously denied those parts of the motion and cross motions of The Abbott Laboratories, Dart Industries, Inc., p/k/a Rexall Drug Company, Inc., Eli Lilly and Company, S.E. Massengill, n/k/a SmithKline Beecham Corp., Merck Co., Inc., E.R. Squibb Sons, Inc. and The Upjohn Company (defendants) seeking to dismiss the claims of the Massachusetts plaintiffs, which included non-identification theories of liability. In the prior appeal by plaintiffs, we noted that the court denied the motion and cross motions with respect to the non-identification theories of liability "on the ground that the law in Massachusetts concerning the viability of those theories of liability remains unsettled" ( id. at 911). Defendants now appeal from an order denying their cross motion seeking renewal of those parts of their motion and cross motions for summary judgment dismissing the claims of the Massachusetts plaintiffs.
The law in Massachusetts remains unsettled on the issue whether its courts recognize non-identification theories of liability, including the market share theory of liability. We conclude that, without a clear indication from its appellate courts whether such theories of liability are recognized, we should not expand the law therein to allow the Massachusetts plaintiffs to allege such theories. We therefore conclude that defendants' cross motion should have been granted to the extent that the Massachusetts plaintiffs allege non-identification theories of liability.
In Payton v. Abbott Labs ( 386 Mass. 540, 570, 437 N.E.2d 171, 188), a certified question of law was submitted to the Massachusetts Supreme Judicial Court asking whether market share liability was a viable theory of recovery in Massachusetts. Noting that the "[i]dentification of the party responsible for causing injury to another is a longstanding prerequisite to a successful negligence action," the court rejected the market share theory of liability proposed by the plaintiffs therein ( id. at 571, 437 N.E.2d at 188). However, the court did not reject market share liability in its entirety and went on to state:
"That is not to say that on an adequate record this court would not recognize some relaxation of the traditional identification requirement in appropriate circumstances so as to allow recovery against a negligent defendant of that portion of a plaintiff's damages which is represented by that defendant's contribution of DES to the market in the relevant period of time" ( id. at 574, 437 N.E.2d at 190).
In the 20 years since Payton, however, no state appellate court in Massachusetts has endorsed market share liability or any other non-identification theory of liability. The issue has been addressed by the United States District Court for the District of Massachusetts in four cases, spanning 16 years. In the earliest of those cases, the court adopted the market share theory of liability, reducing the plaintiff's burden to proving only that the defendant produced or marketed the same type of DES ingested by the plaintiff's mother, as "distinguished by color, shape, size or markings" ( McCormack v. Abbott Labs., 617 F. Supp. 1521, 1526). In two subsequent cases, however, the District Court Judges refused to recognize the market share theory of liability ( Mills v. Allegiance Healthcare Corp., 178 F. Supp.2d 1, 8-9; Gurski v. Wyeth-Ayerst Div. of Am. Home Prods. Corp., 953 F. Supp. 412, 418-419). In the fourth case, the court concluded that "the Massachusetts Supreme Judicial Court would not adopt the theory of alternative liability" (i.e., a non-identification theory of liability) and concluded that, in any event, the plaintiffs did not satisfy the requirements of that theory ( Spencer v. Baxter Intl., 163 F. Supp.2d 74, 81). The court wrote that, "[u]nder Massachusetts law, plaintiffs generally must identify the specific defendant responsible for an actionable harm" ( id. at 77-78). In addition, the state trial courts in Massachusetts have been similarly inconsistent with respect to this issue ( compare Domestic Loan Inv. Bank v. Ernst, 1996 WL 680080,*3 [Mass Super Ct, Nov. 21, 1996], with Russo v. Material Handling Specialities Co., 1995 WL 1146853,*6 [Mass Super Ct, Aug. 29, 1995], and Mahar v. Hanover House Indus., 1995 WL 1146188,*2 [Mass Super Ct, Dec. 12, 1995]). Therefore, the court herein properly concluded that Massachusetts law remains unsettled on the issue whether Massachusetts courts recognize non-identification theories of liability ( see e.g. Christopher v. Duffy, 28 Mass. App. Ct. 780, 783 n 7, 556 N.E.2d 121, 123 n 7). In view thereof, we conclude that "it would be improper and presumptuous for the courts of this State to expand the theories of products liability recognized" by state appellate courts in Massachusetts ( Matter of New York County DES Litig., 223 A.D.2d 427, 428, lv denied 88 N.Y.2d 801).
Accordingly, the order should be modified by granting defendants' cross motion in part and dismissing the claims of the Massachusetts plaintiffs asserting non-identification theories of liability.