Law School Case Brief
Doe v. Cutter Biological, Inc. - 971 F.2d 375 (9th Cir. 1992)
States have developed essentially three types of approaches that permit plaintiffs to bring lawsuits when they do not know the identity of the actual tortfeasor. First, under the theory of alternative liability, if several defendants act negligently and it is not possible to determine which defendant caused plaintiff's injury, the burden shifts to the defendants to prove that they did not cause the injury. Under the second approach, the enterprise liability theory, if the plaintiff can prove that an entire industry was negligent, the burden shifts to the members of the industry to prove that they did not supply the specific product that caused the injury. Under the third approach, the market share theory, when it is impossible for a plaintiff alleging injury to prove which of the numerous manufacturers produced the offending product, each manufacturer is responsible for a percentage of the plaintiff's recovery corresponding to its share of the market for the drug.
Plaintiffs John Doe and John Smith filed separate negligence and strict liability suits in Hawaii state court against defendants Cutter Biological, Inc. and several other manufacturers of a blood clotting factor ("Factor"); the United States was also a named defendant on claims of negligence and breach of its duty to warn. Plaintiffs claimed that they were infected with the AIDS virus from the Factor sometime during 1983. Defendants removed the actions to federal district court. On defendants' motions, the district court granted them summary judgment on several grounds, including that because they could not identify exactly which defendants' product caused their infection, under Hawaii law they could not bring a negligence suit. Plaintiffs appealed, and in addition challenging summary judgment, they sked the court to certify two questions of law to the Supreme Court of Hawaii. The court granted the request.
Did the inability of Doe and Smith to identify specifically which defendants' product caused them harm prevent them from recovering damages?
The appellate court reversed the trial court's judgment and remanded the case for further proceedings. In accordance with the state supreme court's answers to certified questions, the court observed that the state supreme court had endorsed a modified market share liability theory, which provided that when it was impossible for a plaintiff alleging injury to prove which manufacturer produced the offending product, each manufacturer was responsible for a percentage of the plaintiff's recovery corresponding to its market share. Moreover, the court ruled, the Hawaii Blood Shield Law, Haw. Rev. Stat. § 327-51, permitted suits based on negligence; therefore, plaintiffs could sue under § 327-51 so long as they alleged negligence on the part of defendants. Finally, the court ruled that the awareness of the United States' physicians of the possible danger of infection through the Factor was a factual question best resolved at trial.
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