Chapter 2: Diethylstilbestrol and the Birth of Market-Share Liability

In “Chapter 2: Diethylstilbestrol and the Birth of Market-Share Liability,” Logan L. Page traces the development of the market-share liability theory that provided a pathway to recovery—one that was blocked under traditional tort law—for the women who suffered cancer from the U.S. Food and Drug Administration (FDA) approved diethylstilbestrol (DES) that their mothers took during pregnancy.

Between 1947 and 1971, as many as six million women were prescribed and took DES during their pregnancies. This drug, which the FDA approved as a miscarriage preventative, would later be linked to clear-cell adenocarcinoma—a form of vaginal cancer—in their adult children. Those women, remembered today as the DES Daughters, overcame a number of legislative and judicial obstacles to sue the companies that manufactured DES.

The California Supreme Court provided the DES Daughters with a watershed victory in the 1980 decision, Sindell v. Abbott Laboratories. That court minted market-share liability, a novel theory of tort causation, which held any manufacturer unable to prove it did not manufacture the particular dose of DES that harmed the plaintiff liable for the percentage of the judgment proportional to its market share. However, some courts subsequently labeled Sindell unpersuasive and rejected the new causation theory and the DES Daughters’ claims along with it. Other courts qualified Sindell in various ways, allowing the DES Daughters to recover but reaching different conclusions about the most appropriate application of tort law to their cases. In Hymowitz v. Eli Lilly & Co., New York’s highest court offered the greatest challenge to traditional tort law by allowing plaintiffs to collect even from manufacturers that could prove they had not supplied DES to the plaintiff’s mother.

The chapter explains this important legal history and explores whether Sindell and its progeny—most notably, Hymowitz—articulated resilient legal principles that enabled the DES Daughters (and future classes of similarly situated plaintiffs) to obtain compensation for the harms they suffered.

About the Author

Logan L. Page is an attorney. He graduated from Boston College with a BA and from Duke University School of Law with a JD.