The Supreme Court yesterday allowed victims of the cancer-causing drug DES to sue all the major DES manufacturers for damages if the victims cannot identify the specific company that sold them the drug.
The justices let stand a far-reaching California Supreme Court ruling creating a form of industrywide sharing of liability for such damages. Under the ruling, a company may be made to pay for damages it never caused to someone who may never have consumed its product. To escape liability, a firm can try to prove that it could not have made the product that caused the injury.
The California approach departs dramatically from conventional legal practice, which generally requires a showing of direct responsibility before damages can be awarded. If it catches on, as corporations fear it might, producers of any number of products, from tampons to electrical insulation, could confront a whole new species of expensive law-suits.
In other action yesterday, the court allowed the television broadcast of the Abscam sting operation videotapes taken by FBI undercover agents and used to convict former Rep. Michael (Ozzie Myers (D-Pa.) of bribery and conspiracy. Myers' lawyers had asked the justices to block access to the tapes by the three television networks until the court could consider a formal appeal.
Myers, who was expelled from Congress, is seeking reelection, and airing of the incriminating tapes undoubtedly could hurt his chances.
The networks broadcast segments of the tapes on news shows last night. The tapes show Myers accepting a $50,000 bribe from undercover FBI sting operatives after promising to introduce a private immigration bill.
The effort to block release of the tapes was based, in part, on the argument that broadcast could prejudice the trials of others charged in the Abscam indictments.
But a federal appeals court held last week that the possibility of prejuice did not outweigh "the public's right of access to courtroom evidence.
Trial evidence is made available routinely to the press in most cases, but airing of a videotape showing the commission of a crime is not routine, though it may become so if law-enforcement agencies continue such undercover operations.
The justices also told the Massachusetts Supreme Court to reconsider a ruling barring the press and the public from the trial of a man charged with raping three teen-aged girls. It was the court's first open-trial action since its landmark ruling in July requiring public access to most trials.
All of the actions came without comment.
The California ruling originated from suits by two California women, Judith Sindell, 29, and Maureen Rogers, 27, alleging that they contracted cancer because their mothers took DES during pregnancy to prevent miscarriage. The experimental drug, taken by 1.5 million to 3 million pregnant women between 1941 and 1971, was withdrawn from the market because of its connection with cancerous vaginal and cervical growths.
Because of the 10- to 12-year minimum time lag between use of the drug and manifestation of the cancer, the women were unable to show which of the 200 DES manufactures sold their mothers the drug. Ordinarily, the suits might have ended at that point.
But the California court, known for its own experimentation, allowed the women to single out the five major DES manufacturers and hold them potentially liable. "In our contemporary complex industrial society," the California court ruled in March, "advances in science and technolgy create . . . goods which may harm consumers and which cannot be traced to any specific producer.
"The response of the courts can be either to adhere rigidly to prior doctrine, denying recovery to those injured, or to fashion remedies to meet these changing needs."
The court determined that the likelihood that particular companies might have supplied the product could be measured by their share of the market. Thus, the women are allowed to sue E. R. Squibb & Sons, Upjohn, Rexell, Abbott Laboratories and Eli Lilly and Co., who produced 90 percent of the DES.
The insurance industry, which argued that the decision could make it "virtually impossible for insurers to issue general commercial liability policies to drug companies," joined the drug companies in asking the Supreme Court to reverse the California ruling. The companies said that making them responsible for injuries they may not have caused is both irrational and a violation of constitutional guarantees of due process.
The lawsuits, demanding at least $11 million, may now proceed to trial as a result of the Supreme Court's action yesterday rejecting their plea.