Wood v. Eli Lilly & Co.

38 F.3d 510, 1994 U.S. App. LEXIS 28211, 1994 WL 550664
Court of Appeals for the Tenth Circuit·Decided October 11, 1994·No. No. 93-6274·Published·Cited by 53 cases

Opinion

BRORBY, Circuit Judge.

This diversity case presents the questions of whether Oklahoma either has or would adopt the tort theories of alternative liability or market share liability in the context of diethylstilbestrol (DES) litigation. We conclude Oklahoma has not adopted either theory and would not apply either theory to the facts of this case. We therefore affirm the judgment of the district court.

BACKGROUND

Procedurally, this case comes to us as a result of the district court granting a summary judgment in favor of three defendants who are drug manufacturing companies. A fourth defendant, another drug manufacturer, was not dismissed under the summary judgment order and is not a party to this appeal.

The record on appeal reveals, after an examination that gives plaintiffs the benefit of all reasonable inferences, the relevant facts are simple and undisputed. The plaintiffs, Mrs. and Mr. Wood, are parents of a son whose premature birth and resulting permanent injury to his digestive system costs them significant medical expense. The Woods contend their losses were ultimately caused by exposure to a synthetic estrogen, DES. In 1959, while the son’s grandmother was pregnant with his mother, the grandmother was prescribed and took DES. The grandmother purchased this medication from a military pharmacy in Florida. Twenty-nine years later, the mother gave birth to her son prematurely. The Woods allege injuries to their son were the result of the mother’s in útero exposure to DES while she was carried by the grandmother.

The Woods originally named twenty-seven drug manufacturer defendants and claimed all were liable under market share nonidenti-fication theory. By November 1991, when the Woods filed their third amended complaint, twenty-four of the original twenty-seven defendants had been dismissed, although the Woods added another defendant during the interim. The four remaining defendants filed motions for summary judgment based on the inability of plaintiffs to identify the specific manufacturer of the DES ingested by the grandmother. The Woods moved to amend to assert the additional nonidentification theory of alternative liability, and their motion was denied. Nonetheless, the Woods asserted alternative liability in their opposition to defendants’ summary judgment motions.

The district court granted summary judgment to three of the drug manufacturers, now appellees, on the grounds that the Woods failed to establish causation under established Oklahoma law and that Oklahoma would not recognize either alternative liability or market share liability theories. Order, No. CIV-90-1307-A, 1992 WL 687292, Slip Op. at 3-5 (W.D.Okla. June 22, 1992). As to the fourth defendant, the district court found [512]*512the Woods had presented sufficient evidence to meet the current Oklahoma standard for causation and therefore presented a triable claim. Slip Op. at 7-8. The plaintiffs’ case against this fourth defendant was subsequently stayed due to the filing of a bankruptcy petition.

An order granting a motion for summary judgment receives de novo review from a court of appeals using the same legal standard employed by the district court. See Thrasher v. B & B Chem. Co., 2 F.3d 995, 996 (10th Cir.1993). We must determine whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. A federal court sitting in diversity must apply the law of the -forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma law with the objective that the result obtained in the federal court should be the result that would be reached in an Oklahoma court, See Allen v. Minnstar, Inc., 8 F.3d 1470, 1476 (10th Cir.1993). If a federal court cannot ascertain the law of the forum state, we must in essence sit as a state court and predict how the highest state court would rule. See Adams-Arapahoe Sch. Dist. No. 28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992). A federal district court’s state-law determinations are entitled to no deference and are reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

DISCUSSION

The Woods do not appeal the district court’s finding that they failed to make a sufficient showing of causation under common principles of Oklahoma tort law. To prevail against a manufacturer in a products liability action, a plaintiff “must prove that the product was the cause of the injury; the mere possibility that it might have caused the injury is not enough.” Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974). We have interpreted the current Oklahoma causation standard in a products liability case to require a “significant probability” that defendant’s acts are related to plaintiffs injury. See Dillon v. Fibreboard Corp., 919 F.2d 1488, 1491 (10th Cir.1990) (interpreting Case v. Fibreboard Corp., 743 P.2d 1062, 1067 (Okla.1987)); see also Blair v. Eagle-Picher Indus., 962 F.2d 1492, 1496 (10th Cir.) (same standard under Case and Dillon), cert. denied, — U.S. —, 113 S.Ct. 464, 121 L.Ed.2d 372 (1992). Accepting the district court’s conclusion that plaintiffs failed to establish causation, Slip Op. at 3, we do not further address an unappealed issue. Therefore, the Woods’ ease hinges on whether Oklahoma has or would adopt another tort theory that relieves plaintiffs of their burden of establishing causation.

I

Alternative Liability Doctrine

The Woods first challenge the district court’s refusal to extend the alternative liability doctrine to their case. Although the district court could have ignored the Woods’ argument as beyond the scope of their third amended complaint, the court concluded Oklahoma has yet to extend the doctrine to products liability actions and would not do so here. We agree.

Alternative liability first attracted attention in the California Supreme Court case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). Under this theory, when more than one negligent defendant cannot be identified as the specific source for an injury, a plaintiff need not prove causation as to each individual defendant, but need only prove that the one who caused the injury is among the group of negligent defendants. The court will presume each individual defendant caused the whole injury unless the defendant can prove otherwise. “The Summers burden shift seems intuitively fair where all those who could have caused the injury are before the court and the odds are equal and significant that each is liable and to the same degree.” Menne v. Celotex Corp., 861 F.2d 1453, 1466 (10th Cir.1988). Oklahoma adopted the theory of Summers in the dog-bite ease of Hood v. Hagler, 606 P.2d 548 (Okla.1979), but has not recognized the theory in a products liability context.

Specifically, the Oklahoma Supreme Court rejected alternative liability, and other noni-dentification theories, in Case v. Fibreboard Corp., 743 P.2d 1062.

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Wood v. Eli Lilly & Co., 38 F.3d 510, 1994 U.S. App. LEXIS 28211, 1994 WL 550664 (10th Cir. 1994).

38 F.3d 510 (Wood v. Eli Lilly & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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