Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
all or any of the persons who had any connection with the operation even though he could not
select the particular acts by the particular person which led to his disability. (Ybarra v.
Spangard). There the court was considering whether the patient could avail himself of res ipsa
loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff
has made out a case when he has produced evidence which gives rise to an inference of
negligence which was the proximate cause of the injury. It is up to defendants to explain the
cause of the injury . . . . The judgment is affirmed.
Note
1. The Summers court uses a shift in the burden of persuasion which solves the evidentiary
problem in a case between two defendants governed by a preponderance standard. But is shifting
the burden of persuasion sufficient in a case with more than two possible defendants? The
pharmaceutical disaster known as DES raised this problem.
Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)
MOSK, J.
This case involves a complex problem both timely and significant: may a plaintiff, injured
as the result of a drug administered to her mother during pregnancy, who knows the type of drug
involved but cannot identify the manufacturer of the precise product, hold liable for her injuries a
maker of a drug produced from an identical formula?
. . .
Between 1941 and 1971, defendants were engaged in the business of manufacturing,
promoting, and marketing diethylstilbesterol (DES), a drug which is a synthetic compound of the
female hormone estrogen. The drug was administered to plaintiff’s mother . . . for the purpose of
preventing miscarriage. . . .
In 1971, the Food and Drug Administration ordered defendants to cease marketing and
promoting DES for the purpose of preventing miscarriages, and to warn physicians and the public
that the drug should not be used by pregnant women because of the danger to their unborn
children. [In particular, DES causes adenosis (“precancerous vaginal and cervical growths which
may spread to other areas of the body”) as well as cancerous vaginal and cervical growths known
as adenocarcinoma, a “fast-spreading and deadly disease.”)
. . .
Plaintiff [who developed a malignant bladder tumor and who suffered from adenosis, for
which she underwent regular and painful monitoring] seeks compensatory damages of $1 million
and punitive damages of $10 million for herself. For the members of her class, she prays for
equitable relief in the form of an order that defendants warn physicians and others of the danger of
DES and the necessity of performing certain tests to determine the presence of disease caused by
the drug, and that they establish free clinics in California to perform such tests.
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