Indiana Law Review Notes The Causation Problem in Asbestos Litigation: Is There an Alternative Theory of Liability? I. Introduction "Asbestos" is the name given to a family of hydrated silicate minerals which occur naturally as masses of fibers with the unique properties of relative indestructibility and high resistance to fire.^ These properties combine to make asbestos an invaluable ingredient in a variety of products used to protect human life.^ Ironically, asbestos has recently been labeled one of the most dangerous and life-threatening natural materials used by man.^ Masses of asbestos fibers, when disturbed in any manner, have a tendency to break easily into tiny dust particles which become sus- pended in the air.* Extended periods of ingestion and inhalation of these particles have recently been linked to such debilitating diseases as asbestosis,^ bronchogenic carcinoma,^ and mesothe- 'Mansfield, Asbestos: The Cases and the Insurance Problem, 15 Forum 860 (1980); Mehaffy, Asbestos-Related Lung Disease, 16 Forum 341, 341-42 (1980). ^The heat-resistant properties and fibrous structure of asbestos make it extreme- ly desirable as a fireproofing, insulating, and friction-resistant material. These unique properties make it a valuable ingredient in such products as brake shoes on automobiles, fireproof clothing, fire-resistant wallboard and cement, and coverings for pipes and electrical wiring. See U.S. Dep't of Health, Educ, and Welfare, Pub. L. No. 78-1594, Asbestos Exposure (1978) [hereinafter cited as DHEW Asbestos Ex- posure]. ^Mehaffy, supra note 1, at 341. *DHEW Asbestos Exposure, supra note 2, at 1. ^Asbestosis is classified as a pneumoconiosis (lung disease caused by extended in- halation of a mineral or metallic dust). It is a nonmalignant response of the body to the inhalation of asbestos fibers which sets up an inflammatory process that replaces func- tioning lung tissue with scarred tissue. This process destroys the air sacs in the lung tissue, preventing the lung from diffusing oxygenated blood to the arteries and preventing carbon dioxide from being released. There are two types of asbestosis; parenchymal asbestosis and pleural asbestosis. These two types of asbestosis may oc- cur simultaneously or independently. Each can be severely disabling and neither type is necessarily fatal. Currently, there is no cure for asbestosis. Also, asbestosis is generally accompanied by an enlargement of the right side of the heart (cor pulmonale) resulting from the encroachment of the scar tissue on the lung. Essentially, the heart must work harder to deliver oxygenated blood to the body, causing the right side enlargement. Deposition of Harriet Louise Hardy, M.D. at 18-23, Roderman v. Combus- tion Eng'r, Inc., No. C72-390 (N.D. Ohio, deposition taken on Feb. 21, 1977) [hereinafter cited as Deposition of Dr. Hardy]. 'Bronchogenic carcinoma of the lung, as characteristic of most cancers, involves 679 680 INDIANA LA WREVIEW [Vol. 15:679 lioma.^ Each of these diseases has a documented latency period of twenty to forty years after the initial exposure to asbestos.^ The recent proliferation of product liability lawsuits for asbestos- related diseases had its genesis in the 1973 case of Borel v. Fibreboard Paper Products Corp.^ Between 1973 and 1980, an estimated ten thousand asbestos suits were filed. ^° As of February 1, 1981, twenty-five thousand individual plaintiffs had filed asbestos suits with an additional five hundred suits being filed each month." This, however, is only the beginning. An estimated eleven million American workers have been exposed to significant concentrations of asbestos since the beginning of World War 11,^^ and this does not begin to include the millions of consumer exposures. ^^ Appropriately, the completely disordered multiplication of cells in the lung and bronchial tubes resulting in the unrestrained growth of abnormal cells. These abnormal cells tend to break into bits and be distributed to other parts of the body via the blood stream or lymphatic system where the unrestrained growth and multiplication continues. For in- stance, if one of these abnormal cells is carried to the brain, an individual may ex- perience what appears to be a stroke. Bronchogenic carcinoma is ultimately fatal. Id. at 23-28. ^Mesothelioma is a diffuse malignancy of the mesothelial cells which are found in various linings of the body, such as the pleura (thoracic cavity lining) and the peritoneum (abdominal cavity lining). These linings react to the inhalation or ingestion of asbestos fibers resulting in the very rapid multiplication of cells. This multiplication of cells, referred to as a tumor, eventually presses against the lungs, impairing breathing. There is no known cure for mesothelioma and it is fatal in all cases. Id. at 28-31. *In some cases, these diseases may become manifested to the point of diagnosis within two months after the initial exposure. Generally, however, the latency period is over twenty years after first exposure. Id. at 26-27; Henderson, Product Liability Disease Litigation: Blueprint for Occupational Safety and Health, Trial, April 1980, at 26; see also note 12 infra. This latency period is explained by the fact that asbestos fibers, once inhaled, remain in place in the lung, causing a tissue reaction that is slowly progressive and apparently irreversible. Even if no additional fibers are inhaled, tissue damage may continue undetected for decades. Furthermore, the effect of the disease is cumulative because each exposure to asbestos dust can result in additional tissue damage. See generally Comment, Asbestos Ligitation: The Dust Has Yet To Settle, 7 FoRDHAM Urb. L.J. 55, 63 (1978) [hereinafter cited as Asbestos Comment]. '493 F.2d 1076 (5th Cir. 1973), cert, denied, 419 U.S. 869 (1974). The first asbestos case, Potter v. Fibreboard Paper Prod. Corp., No. C.A.6329 (E.D. Tex. 1968), was filed in 1968 and settled for a relatively small amount prior to verdict. Borel was the first asbestos case which was tried to a verdict. '"Mehaffy, supra note 1, at 345. "Levit, Levit Outlines Catastrophic Product Liability Development, Nat'l Under- writer, June 19, 1981, at 20, col. 1. '^DHEW Asbestos Exposure, supra note 2, at 2; Mansfield, supra note 1, at 865-66. '^The carcinogenic effects of consumer products are speculative because little research of this type has been done. The sale of certain items containing asbestos, however, has been banned. 42 Fed. Reg. 63,354-64 (1977). For instance, in 1978, the Consumer Product Safety Commission issued a two-page fact sheet encouraging homeowners to remove asbestos-containing patching plaster, and to remove and 1982] ASBESTOS LITIGATION 681 the effects associated with asbestos exposure have been labeled "toxic time bombs."^" Asbestos litigation presents unique legal problems. ^^ A major problem is the inherent difficulty in identifying the manufacturer of the particular products which caused the plaintiff's injuries. Due to the latency period of asbestos diseases, the plaintiff and his co- workers' memories concerning the particular products they used are often faulty. In many cases, documents which identify the products used have been lost or destroyed. ^^ Furthermore, because workers may have moved from one job to another, and because the employ- ers using asbestos products generally obtain them from more than one manufacturer, the asbestos plaintiff has frequently been exposed to thousands of products containing asbestos. Where the asbestos plaintiff was a bystander, ^^ consumer, or demolition worker, ^^ the dif- ficulties associated with the identification of the product and the manufacturer of that product become even more pronounced. Traditionally, identification of the manufacturer has been a rec- ognized requirement in product liability actions. ^^ For example, under the Indiana Product Liability Statute which codifies the com- mon law action of strict liability, the defendant must be linked in some way to the defective and unreasonably dangerous product which caused the injury before that defendant may be held liable.^" This requirement may prevent recovery for many plaintiffs in asbestos lawsuits, where manufacturer identification is not always dispose of any asbestos-containing artifical fireplace logs which were being used in con- junction with gas burners in fireplaces. U.S. Dept of Health, Educ, and Welfare, Pub. L. No. 78-1842, Asbestos and Health: An Annotated Bibliography of Public AND Professional Education Materials 4 (1978). ^Todgers, Toxic Time Bombs, 67 A.B.A. J. 139 (Feb. 1981). '*One problem for individuals injured as a result of asbestos exposure is the ap- plication of a statute of limitations. See, e.g., Bassham v. Owens-Corning Fiber Glass Corp., 327 F.Supp. 1007 (D.N.M. 1971). But see, e.g.. White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir. 1981); Bunker v. National Gypsum Co., 426 N.E.2d 422 (Ind. Ct. App. 1981). Another unique problem in this litigation involves insurance coverage. See, e.g., Keene Corp. v. Insurance Co. of N. Am., No. 81-1180 (D.C. Cir. 1981); Insurance Co. of N. Am. V. Forty-Eight Insulations Inc., 633 F.2d 1212 (6th Cir. 1980). "Henderson, supra note 8, at 26. 'Tor the purposes of this Note, a bystander is a worker who did not work direct- ly with asbestos products, but was working in close proximity with workers using asbestos products so as to be exposed to similar concentrations of asbestos dust. **A demolition worker may be exposed to high concentrations of asbestos dust during the demolition of a building which contains asbestos products. Selikoff, E.P.A. Wins Suit on Demolition of Insulation, Insulation Hygiene Progress Rep., Summer 1976, at 3. ''Annot., 51 A.L.R.3d 1344 (1973); 2 L. Frumer & M. Friedman, Products Liabili- ty § 16A[4][e][i], at 3B-88-88.1 (1980); 1 R. HuRSH & H. Bailey, American Law of Prod- ucts Liability § 1:41, at 125 (2d ed. 1974); W. Prosser, Handbook of the Law of Torts § 103 at 671-72 (4th ed. 1971). '"'Ind. Code § 33-1-1.5-3 (Supp. 1981). For an application of the identification re- 682 INDIANA LAJ REVIEW [Vol. 15:679 possible.^^ Consequently, many asbestos plaintiffs must reshape ex- isting theories of liability to deal with the peculiar factual back- ground of asbestos litigation, or seek new theories of liability in which the burden of identifying the source of the injury-causing product is eliminated or shifted to the defendants. The courts are just beginning to decide who shall bear the finan- cial burden of these debilitating asbestos-related diseases when the plaintiff is unable to identify the source of the injury-causing prod- ucts. This Note will analyze the propriety of using the traditional theories of alternative liability and concert of action in asbestos litigation. It will also discuss the new theory of market share liabil- ity which was recently developed to solve similar identification problems in DES cases, and will determine whether such a theory could apply to asbestos cases. Finally, this Note will discuss other possible solutions to the identification problem facing asbestos litigants. II. Traditional Theories of Liability A. Alternative Liability Under existing tort law in most jurisdictions, there are two traditional theories which may ease the identification burden placed upon the asbestos plaintiff. One theory, that of alternative liability, originated in the California Supreme Court case of Summers v. Tice.^'^ Alternative liability is applied in cases where all defendants biehaved tortiously but only one unidentifiable defendant actually caused the plaintiff's injury.^^ There must be uncertainty as to which defendant actually injured the plaintiff and relative certainty quirement, see American Optical Co. v. Weidenhamer, 404 N.E.2d 606 (Ind. Ct. App. 1980). ^'See, e.g., Gray v. United States, 445 F.Supp. 337 (S.D. Tex. 1978) (recovery denied for DES daughter unable to identify manufacturer of the injury-causing drug); Davis V. Yearwood, 612 S.W.2d 917 (Tenn. App. 1980) (plaintiffs, unable to identify the particular product which caused a fire in the padded cell of a jail, not allowed recovery). But see Hall v. E. I. Du Pont De Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972) (plaintiff injured by a blasting cap could not identify specific manufacturer, al- lowed recovery on an enterprise liability theory); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert, denied, 449 U.S. 912 (1980) (DES daughter unable to identify specific manufacturer of injury-causing drug allowed recovery on a market share theory). '=^33 Cal. 2d 80, 199 P.2d 1 (1948). In Summers, the plaintiff and the two defen- dants had gone quail hunting. When the plaintiff flushed the quail out of their nests, the defendants fired their guns simultaneously and negligently in the plaintiffs direc- tion, striking the plaintiff in the eye. Faced with two negligent defendants and a plain- tiff, who, through no fault of his own, could not identify the responsible party, the court shifted the causation burden to the defendants holding both liable. Id. at 86-87, 199 P.2d at 4-5. 'n F. Harper & F. James, The Law of Torts § 10.1, at 702-04 (1956); W. Pros- 1982] ASBESTOS LITIGATION 683 that one of the defendants did injure the plaintiff.^* The burden of proof on the causation issue may then be shifted to the defendants to show that they were not responsible for the harm.^^ Joint and several liability is then imposed on all defendants who fail to meet this burden.^^ Although it has been argued that the defendants should have superior access to evidence of causation as a prereq- uisite to the court's shifting of the burden, it appears that the theory of alternative liability imposes no such requirement.^^ The traditional application of an alternative liability theory as presented by Summers poses many theoretical difficulties when ap- plied to industry-wide litigation, such as asbestos litigation. In Sum- mers, the total possible number of wrong-doers was two, both of whom were joined as defendants. Therefore, one of them must have been the cause in fact of the plaintiff's injury. By shifting the burden of proof and imposing joint and several liability, the court in Summers created the presumption that each defendant was the cause in fact of the plaintiff's injury. This shift in the burden of proof was justified only by the one hundred percent collective prob- ability of causation. In asbestos cases, it would be difficult, if not impossible, for the plaintiff to join all possible tortfeasors.^* Joinder of less than all of SER, supra note 19, at 243. This doctrine has also been incorporated into the Restate- ment (Second) of Torts § 433: Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncer- tainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. Restatement (Second) of Torts § 433B(3) (1965) (illustration 9 is based on Summers). '"Restatement (Second) of Torts § 433B(3) (1965). ='^33 Cal. 2d at 86-87, 199 P.2d at 4-5. ^'Id. at 84, 199 P.2d at 5. "The logic and policy justification behind the alternative liability theory in Sum- mers was drawn from the case of Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944), in which the doctrine of res ipsa loquitur was used to infer negligence. See Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 599, 607 P.2d 924, 928-29, 163 Cal. Rptr. 132, 137-38 (1980). In Ybarra, the plaintiff allegedly suffered an injury during the course of surgery while he was unconscious. The court held that the burden of proof as to which defendant injured the plaintiff shifted to the defendants because the defen- dants had a superior ability to identify the specific instrumentality which injured the plaintiff. 25 Cal. 2d at 488, 154 P.2d at 690-91. However, in Sindell, the California Supreme Court specifically denied that superior knowledge or ability of the defendant to identify the specific instrumentality which injured the plaintiff was a prerequisite to the shifting of the burden of proof under the Summers doctrine. 26 Cal. 3d at 602, 607 P.2d at 930, 163 Cal. Rptr. at 138. But see Namm v. Charles E. Frost & Co., 178 N.J. Super, 19, 427 A.2d 1121 (App, Div. 1981) (rejecting application of alternative liability on the basis of no superior knowledge). '*The need to join numerous defendants poses problems in maintaining complete diversity of citizenship when the action is in federal court and problems in obtaining 684 INDIANA LAWREVIEW [Vol. 15:679 the possible tortfeasors would undermine the theoretical justifica- tion for the alternative liability theory. Moreover, the equity of this theory diminishes as the disparity between the number of total possible tortfeasors and the number of tortfeasors joined becomes greater.^^ Because alternative liability calls for the imposition of joint and several liability upon all tortfeasors, it does not ensure equitable apportioning of liability among manufacturers.^" Therefore, the alternative liability theory, in its traditional form, would not be appropriate in large industry-wide litigation,^^ particularly in asbestos litigation in which not all causes of the plaintiff's injury can be isolated and identified.^^ B. Concert of Action Concert of action is the second of the two theories under which a plaintiff may be able to obtain joint and several liability in personal jurisdiction in both federal and state courts. Additionally, due to the latent ef- fect of asbestos-related diseases, the asbestos plaintiff is often faced with the im- possibility of joining a manufacturer which has gone out of business after the plaintiffs exposure. ^^See Comment, DES and a Proposed Theory of Enterprise Liability, 46 FOR- DHAM L. Rev. 963, 991 (1978) [hereinafter cited as Fordham Comment]. ^"The apportionment of damages under an alternative liability theory does not consider the length of exposure to various asbestos products and the relative propensi- ty of each of these products to create asbestos dust when disturbed. The length of ex- posure to each asbestos product would be a necessary requirement in asbestos litiga- tion. See notes 62-70 infra and accompanying text. ^'Although alternative liability would not be applicable in its traditional form, a modified application is intimated by the Restatement (Second) of Torts. According to the Restatement, the burden of proof shifts to the defendants only if the plaintiff can demonstrate that all defendants acted tortiously and that the harm resulted from the conduct of one of them. Restatement (Second) of Torts § 433B, comment g (1977). The Restatement further notes that the rule thus far has been applied only where all the actors involved are joined as defendants and where the conduct of all is simultaneous, but cases may arise in which some modification of the rule would be necessary. Id., comment h. This proposed modification has been accepted only in a few cases where joinder of all possible tortfeasors was impossible. See, e.g., Haft v. Lone Palm Hotel, 3 Cal. 3d 756, 478 P.2d 465, 91 Cal. Rptr. 745 (1970) (despite the fact that other persons not before the court could have caused the drownings, the court applied an alternative liability theory, shifting the burden of proof to the defendants); Abel v. Eli Lilly & Co., 94 Mich. App. 59, 289 N.W.2d 20 (1979) (plaintiffs asserted that 16 defendants were the entire Michigan market for DES; however, the court did not con- dition liability on this factor, intimating that joinder of less than all possible defen- dants may be permissible). Other courts deciding DES cases have refused to expand the theory of altenative liability beyond its traditional application. See, e.g., Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980) (rejecting application of alternative liability because a major portion of the total number of possi- ble tortfeasors were not joined). ^^See notes 73-77 infra and accompanying text. 1982] ASBESTOS LITIGA TION 685 asbestos suits. This theory was developed and traditionally applied in illegal drag racing cases in which a bystander was injured by one of the participants.^^ Under the concert of action theory, the injured bystander could proceed against any one or all of the participants in the drag race by alleging that each of the defendants helped plan or facilitate the illegal drag race, that such participation in the drag race was tortious, and that the bystander's injury resulted from the illegal drag race.^^ The bystander must also allege that an agree- ment existed between the participants. Such agreement may, however, be inferred from the participants' conduct.^^ To satisfy the cause in fact problems presented when more than two participants are involved,^^ the concert of action approach theorizes that the causative agent of the plaintiffs injury was the illegal car race itself, rather than using the traditional "but for" determination of cause in fact which would necessarily include only two participants. In this manner, each participant could be held liable as a "material element and substantial factor" in causing the plaintiffs injury, regardless of the fact that the absence of one par- ticipant would not have prevented the injury from occurring.^^ ''See, e.g., Bierczynski v. Rogers, 239 A.2d 218 (Del. 1968); Skroh v. Newby, 237 So. 2d 548 (Fla. Dist. Ct. App. 1970); Lemons v. Kelly, 239 Or. 354, 397 P.2d 784 (1964). See also W. Prosser supra note 19, § 46, at 292. The Restatement (Second) of Torts sets forth the following elements for an action based upon concert of action: For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a com- mon design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to con- duct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. Restatement (Second) of Torts § 876 (1979). '*W. Prosser, supra note 19, § 46, at 291-92. ^''E.g., Bierczynski v. Rogers, 239 A.2d 218, 221 (Del. 1968) (agreement inferred from defendants' cars racing side by side at twice the legal speed limit); Skroh v. Newby, 237 So. 2d 548 (Fla. Dist. Ct. App. 1970) (agreement inferred from close prox- imity of cars, both of which were traveling at 90 miles per hour). '*The "but for" definition of cause in fact establishes the outer limits of who may be held liable for the plaintiffs injury. If more than two people are involved in the il- legal drag race, it could not realistically be said that "but for" the actions of the third person, the plaintiff would not have been injured. The race still could have taken place and injured the plaintiff without the third person. W. Prosser, supra note 19, § 41, at 238-39. "Prosser suggests that being a "material element and substantial factor" in the plaintiff's injury would be a more preferable definition of cause in fact than the tradi- tional "but for" definition. Id. at 240. 686 INDIANA LA WREVIEW [Vol. 15:679 Under its traditional application, it is clear that the chief purpose of imposing joint liability under a concert of action theory was deterrence,^* rather than an easing of the causal burden placed upon the plaintiff who was unable to identify the injury-producing party. Application of a concert of action theory has recently been used to establish industry-wide vicarious liability on the grounds that all members of that industry acted in concert by establishing a common design and safety standard for an allegedly defective product or by marketing such an allegedly defective product.^^ Such an application of the concert of action theory makes identification of the specific source of an injury-causing product unnecessary. The usefulness of a concert of action theory by the asbestos plaintiff as a device to avoid the requirement of identifying the actual source of the injury-causing product is limited, for two essential reasons. First, most product liability actions involving asbestos are omission cases arising from the failure to test, warn, or otherwise anticipate and provide for the risk of injury .*° The principle evidence of explicit agreement in asbestos cases involves the written correspondence of three representatives of two asbestos manufac- turers between the years 1934 and 1939.*^ This correspondence may indicate an interest of these manufacturers in suppressing informa- tion about the possible hazards of asbestos."*^ Such correspondence is insufficient, however, to conclude that an express agreement existed between all asbestos manufacturers to suppress information concern- ing the hazards of asbestos. With respect to manufacturers other than these two, evidence consists of parallel activity*^ and the cooperation ''Id. § 46, at 292. ^^Hall V. E. I. Du Pont De Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972) (manufacturers of blasting caps and trade association not entitled to dismissal for plaintiffs' pleading of concert of action based upon defendants' agreement not to place warnings on blasting caps); In re Beverly Hills Fire Litigation, No. 77-79 (E.D. Ky. Nov. 14, 1979) (denied motion for summary judgment by manufacturers of aluminum wire and devices because evidence revealed genuine issue as to whether the defen- dants acted in concert in promoting and selling a defective product without adequate warning); Bichler v. Eli Lilly & Co., No. 15600-1974 (N.Y. App. Div. July 16, 1979) (ver- dict in DES case for plaintiffs on the basis of defendants' conscious parallelism and tacit agreement in failing to conduct second-generation animal tests). ^''Mansfield, supra note 1, at 866. "The representatives were Sumner Simpson, president of Raybestos-Manhattan, Vandiver Brown, secretary of Johns-Manville, and Mr. Hobart, Johns-Manville's New Jersey attorney. For excepts of these letters, see Motley, The Lid Comes Off, Trial, April 1980, at 21-22. See note 107 infra. "Motley, supra note 41, at 21-23. **rhis parallel activity primarily consists of a universal failure by all manufac- turers of asbestos products to place warning labels on their products. See note 112 in- fra and accompanying text. i 1982] ASBESTOS LITIGATION 687 of manufacturers within the industry/'* Although the concert of ac- tion theory does not require an express agreement, it does, at a minimum, require a "tacit understanding.'"*^ An entire industry's failure to perform adequate testing or provide adequate warnings is generally insufficient to establish concert of action, and does not amount to a tacit understanding/^ Based upon existing evidence, an application of concert of action in asbestos litigation would expand the doctrine far beyond its intended scope. Second, in cases in which the plaintiff is unable to identify the source of the injury-causing products, concert of action fails to supply the theoretical basis for joining numerous defendants. Allowing the joinder of multiple defendants by the asbestos plaintiff who cannot identify the source of the injury-causing product would necessitate an expansion of the already liberal definition of cause in fact.'*^ Be- cause it cannot be proven that all defendants participated in injur- ing the plaintiff, this liberal definition would have to be expanded to include any material element and substantial factor which may have caused the plaintiff's injury. Such an expansion of the causation con- cept would undermine the notion of fault inherent in the traditional concert of action theory. Each defendant would be jointly and several- ly liable for the total damages on the basis of a theory without theoretical justification. III. The Theory of Market Share Liability Although the theories of alternative liability and concert of action, in their traditional form, do not appear to be of great value to the asbestos plaintiff who is unable to identify the source of the injury- causing product, the plaintiff may be aided by a new theory called market share liability. This approach was proposed and adopted by the California Supreme Court in Sindell v. Abbott Laboratories*^ to "The cooperation between asbestos manufacturers could be inferred from the various industry associations to which these manufacturers belonged, such as the Asbestos Textile Institute (ATI). The ATI's decision not to conduct a study on animals to determine the carcinogenic effects of asbestos is cited as evidence of the cooperative relationship between asbestos textile manufacturers. Motley, supra note 41, at 23. *'W. Prosser, supra note 19, § 46, at 292. *«Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 605, 607 P.2d 924, 932, 163 Cal. Rptr. 132, 140, cert, denied, 449 U.S. 912 (1980). From the asbestos plaintiffs view- point, the most serious problem with relying on a concert of action theory would be the risk of a directed verdict where the court determines that there is insufficient evidence of agreement or tacit understanding among the defendants. "See notes 36-37 supra and accompanying text. "26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert denied, 449 U.S. 912 (1980). The market share liability theory adopted in Sindell is derived from a theory proposed in a 1978 Comment in the Fordham Law Review. See Fordham Comment, supra note 688 INDIANA LA WREVIEW [Vol. 15:679 ease the causal burden placed upon plaintiffs who experienced in- herent difficulties in identifying the manufacturer of the injury- causing drug diethylstilbestrol (DES) that they were exposed to in utero.^^ To understand the implications of the market share theory, it is necessary to appreciate the causation problem presented by the DES cases. Generally, the plaintiffs in these cases are not able to identify the specific drug company which manufactured the pills which their mothers ingested. DES was never patented, and all manufacturers of DES followed a standard formula set forth in the United States Pharmacopeia.^" DES was a prescription drug often sold through pharmacies under its generic name rather than a brand name.^^ Furthermore, in the twenty to thirty years since the DES was prescribed, memories have faded and prescription records have often been lost or destroyed. Consequently, the particular manufac- turer is unknown or unknowable to most DES plaintiffs.^^ Faced with the unique factual background of DES cases, the court in Sindell adopted a revolutionary theory of liability which ob- viates the DES plaintiffs difficulties in manufacturer identification while observing traditional notions of justice in only holding a manufacturer liable when there is actual proof that the manufac- turer produced the DES which injured the plaintiff.^^ In adopting the 29. The court in Sindell made numerous references to this Comment and developed a theory which is nearly identical to the theory proposed by this Comment, even though the court in Sindell specifically distinguished its theory. 26 Cal. 3d at 608-09, 607 P.2d at 935, 136 Cal. Rptr. at 143. ^^Diethylstilbestrol is a synthetic estrogen which was first approved by the Food and Drug Administration (FDA) in 1947 to prevent miscarriages. 26 Cal. 3d at 593, 607 P.2d at 925, 163 Cal. Rptr. at 133. This drug was manufactured by hundreds of drug companies until 1971 when the FDA banned further marketing and promoting of DES as a miscarriage preventative. Id. at 594, 607 P.2d at 925, 163 Cal. Rptr. at 133. After being prescribed to several million pregnant women, research linked DES to cancerous and precancerous vaginal tract abnormalities in prenatally exposed daughters of women who took DES during their pregnancy. Fordham Comment, supra note 29, at 963-67. The form of cancer linked to DES use is adenocarcinoma which has a latency period of 10 to 12 years. Herbst, Ulfelder & Poskanzer, Adenocarcinoma of the Vagina, 284 New Eng. J. Med. 878 (1971). ^"21 U.S.C. § 351(b) (1976). "Fordham Comment, supra note 29, at 976. ^^Id. at 974. In recent years, numerous law review articles have been published on the topic of DES and the difficulties with manufacturer identification. See, e.g., Fordham Comment, supra note 29; Note, Beyond Enterprise Liability in DES Ca^es—Sindell, 14 Ind. L. Rev. 695 (1981); Note, Market Share Liability: An Answer to the DES Causation Problem, 94 Harv. L. Rev. 668 (1981) [hereinafter cited as Harvard Note]; Note, Proof of Causation in Multi Party Drug Litigation, 56 Tex. L. Rev. 125 (1977). ^''26 Cal. 3d 588, 611-12, 607 P.2d 924, 937, 163 Cal. Rptr. 132, 145, cert, denied, 449 U.S. 912 (1980). 1982] ASBESTOS LITIGATION 689 market share theory, the court in Sindell rejected the traditional theories of liability on which the plaintiffs were relying to ease the causal burden.^^ The market share theory is a hybrid theory, however, derived primarily from the Summers doctrine of alternative liability and, to a lesser extent, from the concert of action theory. The court held that because all defendants produced a drug from an identical formula, it is reasonable in the present context to measure the likelihood that any of the defendants supplied the product which allegedly injured the plaintiff by the percentage which the DES sold by each of them for the purpose of preventing miscarriage bears to the entire production of the drug sold by all for that purpose.^^ Although it has been suggested that seventy-five to eighty per- cent of the market must be represented in a case before such liabil- ity is applied,^^ the Sindell court required only a "substantial per- "The Sindell court rejected an application of the Summers doctrine of alternative liability, recognizing that with only five of the two hundred DES manufacturers being defendants to this action, there was a significant possibility, perhaps a high probabili- ty, that the company which actually manufactured the particular DES causing the plaintiffs injury would escape liability. Id. at 611, 607 P.2d at 936-37, 163 Cal. Rptr. at 144-45. The Sindell court rejected the application of a concert of action theory because there was inadequate evidence in the record of an agreement or tacit understanding among the defendants to engage in tortious conduct. Id. at 605, 607 P.2d at 932-33, 163 Cal. Rptr. at 140-41. The court also considered the enterprise liability theory sug- gested in Hall v. E. I. Du Pont De Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972), but rejected this theory because a large number of DES manufacturers were not joined in this action. 26 Cal. 3d at 607-11, 607 P.2d at 933-35, 163 Cal. Rptr. at 141-43. In Hall, there were only six manufacturers of blasting caps, all of which were joined in the action. Furthermore, the conclusion in Hall that the defendants jointly controlled the risk to the plaintiffs based on allegations that functions related to safety had been delegated to a trade association, was absent from the Sindell case. Id. The major drawback of the Hall theory is the application of vicarious liability, rather than a shifting of the burden of proof. Also, the theory is inherently contradictory: parties who are acting independently a fortiori do not have joint control of risk. As a consequence, few jurisdictions have been willing to adopt the Hall theory of enterprise liability. '^26 Cal. 3d at 611-12, 607 P.2d at 937, 163 Cal. Rptr. at 145. ^FoRDHAM Comment, supra note 29, at 995. This Comment suggested requiring the following elements in an enterprise liability theory: (1) Plaintiff is not at fault for his inability to identify the causative agent and such liability is due to the nature of the defendants' conduct. (2) A generically similar defective product was manufactured by all the defendants. (3) Plaintiffs injury was caused by this product defect. (4) The defendants owed a duty to the class of which plaintiff was a member. (5) There is clear and convincing evidence that plaintiffs injury was caused by the product of one of the defendants. For example, the joined defend- 690 INDIANA LAWREVIEW [Vol. 15:679 centage" of the total market.^^ Once the plaintiff has joined the manufacturers of a substantial share of the relevant market in the action, the burden of proof shifts to each defendant to demonstrate that it could not have made the particular substance which injured the plaintiff.^® If the defendant can not so demonstrate, then "[e]ach defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused the plaintiffs injuries."^* The policy underlying Sindell is that '*as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury."®" This policy was, in the court's view, applicable in the DES litigation because the plaintiffs were totally innocent in failing to provide evidence of causation. In addition, the court found, *'[f]rom a broader policy standpoint, [the] defendants are better able to bear the cost of injury resulting from the manufacture of a defective product."®^ Essentially, the DES plaintiff need only prove the following under market share liability: that the defendants were negligent either by their knowledge that DES was carcinogenic or by their failure to properly test the drug prior to marketing; that the defend- ants produced a generically similar defective product with inade- quate warnings of the dangers associated with taking DES; and that the plaintiff was injured by DES. In proving these elements, the plaintiff has a cause of action against DES manufacturers so long as a substantial share of the relevant market can be joined. The ants accounted for a high percentage of such defective products on the market at the time of plaintiffs injury. (6) There existed an insufficient, industry-wide standard of safety as to the manufacture of this product. (7) All defendants were tortfeasors satisfying the requirements of whichever cause of action is proposed: negligence, warranty, or strict liability. Id. at 955. Most of these elements appear in the market share theory adopted by the Sindell court. For an excellent analysis of the differences between these two theories of industry-wide liability, see Note, Industry-Wide Liability and Market Share Alloca- tion of Damages, 15 Ga. L. Rev. 423 (1981). "26 Cal. 3d at 612, 607 P.2d at 937, 163 Cal. Rptr. at 145. '^The shift in burden of proof for manufacturer identification represents a substantive shift in burden and not merely a procedural shift. The effect is to eliminate the identification requirement of traditional tort law. Berns & Lykos, Sindell V. Abbott Labs— The Heir of the Citadel, 15 Forum 1031, 1035 (1980). ''26 Cal. 3d at 612, 607 P.2d at 937, 163 Cal. Rptr. at 145. Although the court did not specify whether the appropriate market shares would be determined as of the time of ingestion or the time of judgment, it is reasonable to assume that the court intended that market shares be determined as of the time of ingestion. nd at 610-11, 607 P.2d at 936, 163 Cal. Rptr. at 144. ''Id. 1982] ASBESTOS LITIGATION ' 691 obvious question in asbestos litigation is whether such a theory would be available to the asbestos plaintiff who is unable to identify the source of the injury-causing product. IV. Applicability of Market Share Liability TO Asbestos Litigation To properly analyze the applicability of a market share liability theory to asbestos litigation, it is necessary to review the underly- ing justifications for such a theory and apply the required elements of the market share theory to the asbestos situation. A. Requirement of Fungible Products Of critical importance to the market share theory is the require- ment of generically similar defective products. Because all defend- ants in the DES cases produced a drug from an identical formula,^^ the pills were equally harmful regardless of who manufactured them. Therefore, the total volume of DES marketed in the year of injury directly corresponded to the amount of risk created and relative harm caused by each manufacturer.*^ Where the products are not uniformly harmful, the logical correlation between the volume sold and the harm caused by each manufacturer would be lost, unless the market share approach also considered the relative harm- fulness of each manufacturer's product.** Asbestos plaintiffs generally have been exposed to a wide variety of not generically similar products containing asbestos.*^ The '^See note 50 supra and accompanying text. *^he FoRDHAM Comment explains the relationship between the percentage of market share and liability as follows: [I]f X Manufacturer sold one-fifth of all the DES prescribed for pregnancy and identification could be made in all cases, X would be the sole defendant in approximately one-fifth of all cases and liable for all the damages in those cases. Under alternative liability, X would be joined in all cases in which identification could not be made, but liable for only one-fifth of the total damages in these cases. X would pay the same amount either way. Although the correlation is not, in practice, perfect, it is close enough so that defend- ant's objections on the ground of fairness lose their value. FoRDHAM Comment, supra note 29, at 994 (footnote omitted). The court in Sindell adopted this explanation theorizing that, "[u]nder this approach, each manufacturer's liability would approximate its responsibility for the injuries caused by its own products." 26 Cal. 3d at 612, 607 P.2d at 937, 163 Cal. Rptr. at 145. "Harvard Note, supra note 52, at 679. '^^E.g., Memorandum of Johns-Manville Products Corporation in Opposition to the Plaintiffs' Motion to Amend Complaint at 19, Neary v. Johns-Manville Prod. Corp., No. H78-790 (D. Md., filed May 5, 1978) (plaintiff alleged exposure over decades to molded pipe and block insulation, asbestos cloth, insulating and finishing asbestos cement, asbestos paper, and other asbestos products). 692 INDIANA LAWREVIEW [Vol. 15:679 probability that these plaintiffs were actually harmed by any par- ticular asbestos product is a function of the amount and percentage of asbestos in each product and the tendency of the asbestos to free itself from that product.®^ Therefore, in order for the determination of market share to have any logical relationship to the amount of risk created by each manufacturer and the probability that its prod- ucts caused the plaintiffs injury, the market share determination would have to incorporate these factors. Although the amount and percentage of asbestos in each manufacturer's products generally can be ascertained, the deter- mination of the relative propensity of each product to release asbestos is much more difficult and speculative. For instance, asbestos bonded in a finished product, such as linoleum, does not present significant health risks, unless the product is damaged or disturbed in such a way as to free fibers into the air.^^ On the other hand, spray asbestos insulation, which has a very high propensity to release asbestos dust, is extremely dangerous to health.^^ Between these two extremes are asbestos cement, molded pipe covering, asbestos clothing, asbestos ceiling tiles, and a host of other asbestos products, each of which has a different propensity to release asbestos fibers into the air. The determination is further complicated by the varying tendencies of each particular product to release asbestos fibers depending upon when the exposure occurred and the method of application or use of the product. Although bonded asbestos products may present little health risk in their finished form, the health risk is significantly greater during the manufacturing process. Furthermore, the method in which a product is used or applied plays an important role in determining the propensity of that product to release asbestos fibers.^^ The failure to consider these factors might result in one manufacturer, who produced a bonded product contain- ing only two percent asbestos, sharing equal liability with another manufacturer who produced a product containing eighty percent asbestos which required spray application. These two products could not reasonably share an equal probability of causing the plaintiff's injuries. ""Id. •"Bruck, The Armies of Asbestos, Am. Law., Nov. 1979, at 20; DHEW Asbestos Exposure, supra note 2, at 4. "^Selikoff, A Gloomy Picture, Insulation Hygiene Progress Rep., Winter 1972, at 1. ^'Selikoff, Insulation Industry Hygiene Research Program, Insulation Hygiene Progress Rep., Winter 1972, at 15-16 (dumping dry asbestos cement into trough prior to adding water creates more dust than adding asbestos cement to water; wetting pipe covering prior to cutting creates less dust than without wetting; cutting asbestos prod- ucts with saber saw creates more dust than cutting with band saw which has dust col- lector). 1982] ASBESTOS LITIGATION 693 As an additional consideration, medical studies on asbestos exposure indicate that the diseases linked with asbestos inhalation increase in severity in a direct relationship to the length of exposure to asbestos dust.^° Therefore, the length of exposure to each product should be factored into the market share equation. From the above analysis, it is readily apparent why the court in Sindell placed so much emphasis on the fungibility of DES. The lack of generically similar defective products injects serious practical and theoretical difficulties into the application of the market share theory. A rote application of this theory to asbestos litigation without considering the relative harm which each product causes, would destroy the underlying justifications of the market share theory and impose liability on one manufacturer for another manufacturer's dissimilar defective products. B. Relevant Market Requirement Implicit in the Sindell formulation of the market share theory is the requirement of a definite, determinable market for the DES to which the plaintiff was exposed. Because it can be assumed that most mothers during their pregnancy remain in the same geographical area, a local market is both logical and readily ascer- tainable. By determining the relevant local market, all defendants who did not distribute their product within that geographic area during the period in which the mother was exposed to DES can be excused from the action.^^ The probability that one of the limited number of named defendants actually caused the plaintiffs injury is thereby increased. Because many asbestos plaintiffs have been exposed to a wide variety of products over decades, the determination of a relevant local market in an asbestos suit would be highly complex. In each geographic area where the plaintiff was exposed to asbestos dust, a determination would have to be made concerning each defendant's share of the local market. Presumably, after all local markets are determined, an average market share for each defendant could be computed. This average market share, however, would also need to be weighted by the plaintiffs length of exposure in each local market.^^ Alternatively, if there was no attempt made to identify local markets and a national market was assumed, the results could ^"Selikoff, Hammond & Seidman, Cancer Risk of Insulation Workers in the United States, Insulation Hygiene Progress Rep.. Fall 1974, at 6; See also Mansfield, supra note 1 at 861. "Sindell v. Abbott Laboratories. 26 Cal. 3d at 611-12, 607 P.2d at 937, 163 Cal. Rptr. at 147. "See note 70 supra and accompanying text. 694 INDIANA LA WREVIEW [Vol. 15:679 prove extremely harsh and inequitable. A manufacturer who con- trolled an extremely high percentage of the national market, but only a small percentage of the local market where the plaintiff was actually exposed, would be subject to a very large percentage of the judgment even though it controlled only a very small proportionate share of the relevant local market. Therefore, if the determination of market share is to have any logical relationship to the degree of each defendant's culpability, an effort must be made to define the relevant local markets and consider the relative lengths of plaintiff's exposure in each market. C. Medical Causation In addition to defining a relevant geographic market, the deter- mination of a relevant market would need to include all possible sources of the plaintiff's injury. Asbestosis, pulmonary and bron- chogenic carcinoma, and mesothelioma are not uniquely caused by and specifically traceable to asbestos exposure. A recent study by the National Cancer Institute concluded that the carcinogenic effect of asbestos is primarily related to its structural shape rather than its physiochemical properties.'^ Medical evidence indicates that pulmonary fibrosis, with symptoms identical to asbestosis symptoms, may be caused by the inhalation of numerous other types of fibrous dusts and chemicals.'* Secondly, pulmonary and bronchogenic car- cinoma are common diseases which generally result from a combination of carcinogens.'^ Consequently, it is nearly impossible to isolate the particular causative agents in carcinoma cases.'® Thirdly, although it was once thought that mesothelioma was uniquely associated with asbestos exposure, medical evidence suggests that the inhalation of any inorganic fibrous material may cause mesothelioma." ^'Stanton & Wrench, Mechanism of Mesothelioma Induction with Asbestos and Fibrous Glass, 48 J. Nat'L Cancer Inst. 797 (1972). ^*Deposition of Dr. Hardy, supra note 5, at 20; Mansfield, supra note 1, at 862-63. For a detailed description of asbestosis, see note 5 supra. '^Deposition of Dr. Hardy, supra note 5, at 27. Henderson, Environment, Trial, Feb. 1978, at 6. Examples of other carcinogens which cause pulmonary cancer are: chromates, nickel, coke oven emissions, cigarette smoke, uranium, and arsenic. Speech by Peter Shea, Home Office Supervising Examiner for Liberty Mutual Insurance Co., Boston, Mass., to the Association of Insurance Attorneys, March 21, 1980. For a description of these diseases, see note 6 supra. '• Mansfield, supra note 1, at 863. '^Medical science has linked mesothelioma to such other inorganic sources as fibrous glass and polyurethane foam. Selikoff, Caution Essential in Use of All Insula- tion Material, Insulation Hygiene Progress Rep., Summer 1972, at 3 (five varieties of fibrous glass were applied to pleura of rats, and all developed mesothelioma) (citing Stanton & Wrench, Mechanism of Mesothelioma Induction with Asbestos and 1982] ASBESTOS LITIGATION 695 The market share calculation logically requires the consideration of all possible sources of the asbestos plaintiffs disease.^^ For example, cigarette smoking, like asbestos exposure, increases the incidence of pulmonary fibrosis and bronchogenic carcinoma, but cannot be isolated from other factors also causing these diseases.^® Further- more, the combined effects of cigarette smoking and asbestos ex- posure geometrically increase an individual's risk of fatal lung cancer over individuals who either smoke or are exposed to asbestos but not both. Specifically, the asbestos worker who smokes faces a risk of fatal lung cancer ten times greater than the asbestos worker who does not smoke.®" If a plaintiff has a history of cigarette smoking and asbestos exposure, the market share calculation would have to make a preliminary determination of the percentage contribution to the plaintiffs disease which each of these factors played.®^ It can be hypothesized that there was an eighty percent chance that the plaintiffs disease was caused by asbestos exposure and a twenty percent chance that the disease was caused by cigarette smoking.®^ If a manufacturer of asbestos products controlled thirty percent of the relevant asbestos market, its share of responsiblity for asbestos- related injuries would be twenty-four percent.*^ Such computations would have to be made for all possible sources of the plaintiffs Fiberous Glass, 48 J. Nat'l Cancer Inst. 797 (1972)). Later studies by the National Cancer Institute confirmed these results. Selikoff, Dust Control Important in Alaskan Pipeline Work, Insulation Hygiene Progress Rep., Summer 1974, at 2. This conclusion suggests that any inorganic fibrous material which may be inhaled has the potential of causing mesothelioma. Selikoff, Caution Essential in Use of All Insulation Material, In- sulation Hygiene Progress Rep., Summer 1972, at 3. For a description of the disease mesothelioma, see note 7 supra. "Harvard Note, supra note 52, at 678. ^•See U.S. Dep't of Health, Educ. and Welfare. Smoking and Health, 4-63 to -66, 5-25 to -29 (1978). However, there is no evidence that smoking increases the risk of mesothelioma among asbestos workers. Mehaffy, supra note 1, at 345. *°The results of a recent study on death rates from lung cancer (per 100,000 man- years, standardized for age) were as follows: 11.3 for men who neither worked with asbestos nor smoked cigarettes, 58.4 for men who worked with asbestos but did not smoke, 122.6 for cigarette smokers who had not worked with asbestos, 601.6 for those unfortunate enough to have had both exposures — cigarettes and asbestos. Selikoff & Hammond, Asbestos and Smoking, 242 J. A.M.A. 458 (1979). "Such a determination may prove to be medically impossible. See note 79 supra. However, from a statistical standpoint such a determination might be made. See notes 126-28 infra and accompanying text. **If cigarette manufacturers could not be held liable due to appropriate warnings on each package consistent with the "state of the art," then plaintiffs may be held 20% contributorily negligent. ««30% X 80% = 24%. 696 INDIANA LAWREVIEW [Vol. 15:679 disease. Failure to consider all of the possible sources of injury would result in one group of manufacturers, whose products contained the particular carcinogen considered in the market share computation, bearing a greater proportion of the judgment than that for which they are logically responsible.^* D. Requirement of Joining a Substantial Share In accordance with the market share theory as set forth in Sindell, the asbestos plaintiff would need to join a "substantial share" of the relevant market.®^ The court in Sindell reasoned that joinder of the manufacturers of a substantial share of the DES which the plaintiffs mother may have taken, would significantly diminish the injustice of shifting the burden of proof to the defend- ants to demonstrate that they could not have made the particular DES which injured the plaintiff.®* This reasoning is logically sound when applied to DES cases because the DES plaintiffs cancer is uniquely caused by and traceable to DES.*^ In DES cases, the court can determine with reasonable accuracy whether the defendants joined in the action collectively distributed a substantical share of the product which caused the plaintiffs injury. Implicit in the requirement of joining a substantial share of the relevant market is the knowledge of all possible sources of the plaintiffs injuries. In asbestos litigation, the plaintiffs injuries generally can not be traced solely to asbestos exposure.®® Asbestos- related diseases may result from the combined effects of asbestos exposure and numerous other carcinogens to which the plaintiff was exposed. The plaintiff who has been exposed to asbestos and who also has a history of exposure to other carcinogens, not only would have to join a substantial share of the relevant asbestos market, but also would have to join a substantial share of the markets for all other carcinogens to which he was exposed. With reference to the example above, where theive exists an eighty percent chance that the plaintiffs injuries wereNcaused by asbestos exposure and a twenty pecent chance that the injuries were caused by cigarette smoking, joining one hundred percent of "In the example above, considering a plaintiff who was exposed to cigarette smoke and asbestos dust, the asbestos manufacturer would only be responsible for 24% of the damages. A failure to consider the cigarette smoke would render this manufacturer liable for 30% of the plaintiffs injuries. *^See note 57 supra and accompanying text. "«^6 Cal. 3d at 612, 607 P.2d at 937, 163 Cal. Rptr. at 145. "ToRDHAM Comment, supra note 29, at 965 n.8 (citing Ulfelder, The Stilbestrol- Adenosis Carcinoma Syndrome, 38 Cancer 426, 428 (1976). ^See notes 74-77 supra and accompanying text. 1982] ASBESTOS LITIGA TION 697 the possible asbestos sources would only constitute eighty percent of the possible sources of the plaintiffs injuries. A failure to join a substantial share of all relevant markets may prove to be inade- quate to overcome the injustice of shifting the burden of proof to the defendants in asbestos litigation under a market share liability approach. All possible sources of the plaintiff's injuries should be considered if the market share theory is to maintain any rational relationship between the injuries sustained and the defendants' relative culpability. It should be noted, however, that the joinder of non-asbestos defendants may be frustrated by the procedural requirement which allows permissive joinder of parties only where there exist questions of law or fact common to all parties.^^ E. Requirement That All Defendants Be Shown to Have Sold a Defective Product Under both the alternative liability and concert of action theories, it is incumbent upon the plaintiff to prove that all defend- ants were negligent.^" Under a strict liability theory, the plaintiff must prove that all of the defendants sold an unreasonably dangerous and defective product which caused the plaintiff's in- juries.^^ Consistent with these theories, the court in Sindell for- mulated the market share theory on the supposition that all defend- ants can be shown to have sold a defective product and that injury resulted from the conduct common to all defendants.^^ In dis- tinguishing earlier cases in which the California Supreme Court refused to expand the Summers alternative liability theory to in- clude situations in which the plaintiff could not establish that all defendants were negligent, the court in Sindell stated that, '*[h]ere, by contrast, the DES manufactured by all defendants is alleged to be defective . . . ."^^ It is clear from this distinction, that by holding the defendants liable only where it could be established that all defendants either were negligent or sold a defective product, the court in Sindell wanted to maintain the justice of earlier case law. The presumption that all DES manufacturers were tortfeasors was «Ted. R. Civ. P. 20. ^See notes 23 & 33 supra. "Restatement (Second) of Torts § 402A (1965) (codified at Ind. Code § 33-1-1.5-3 (Supp. 1981)). *^he question presented to the court in Sindell was whether to sustain the defendants' demurrers; therefore, the court assumed as true the plaintiffs allegations that the defendants sold defective products. 26 Cal. 3d at 595-96, 607 P.2d at 926-27, 163 Cal. Rptr. at 134-35. ''26 Cal. 3d at 603 n.l8, 607 P.2d at 931 n.l8, 163 Cal. Rptr. at 139 n.l8 (emphasis added) (distinguishing Wetzel v. Eaton Corp., 62 F.R.D. 22 (D. Minn. 1973) and Garcia V. Joseph Vince Co., 84 Cal. App. 3d 868, 148 Cal. Rptr. 843 (1978)). 698 INDIANA LAWREVIEW [Vol. 15:679 based on the production of a generically identical defective product by all defendants.®* In contrast, the asbestos manufacturers did not produce generically identical defective products; instead, they manufactured and sold thousands of different types of asbestos products, each of which had a different propensity to release asbestos dust.®^ Unlike DES, there are some asbestos products which present little or no health risk;®* moreover, it is believed there are safe levels of ex- posure to asbestos dust.®^ Therefore, it can not be presumed that all asbestos manufacturers were negligent nor can it be presumed that all asbestos manufacturers sold unreasonably dangerous defective products. In order to demonstrate that all asbestos defendants are tortfeasors, the plaintiff must establish that all defendants acted in concert by failing to test, warn, or otherwise anticipate and provide for the risk of injury. Although there is some evidence that certain asbestos manufacturers either knew or should have known of the dangers of asbestos inhalation, this cannot be assumed for all asbestos manufacturers. The first reported case of an asbestos-related disease was disclosed in an unpublished report presented by Dr. H. Montagu- Murry in England in 1906.®' In 1924, W. E. Cooke reported the first published instance of a death presumed related to asbestos ex- posure.®® Cooke's report marked the turning point in asbestos research, capturing the interest of numerous British physicians.^"** Concerned by these British reports, two American manufac- turers of asbestos products, Johns-Manville and Raybestos-Man- hattan, along with their insurance carrier. Metropolitan Life In- surance Company, in 1929 funded a research program headed by Dr. Anthony Lanza.^°^ The results of the study were published in 1935 indicating that fifty-five percent of these workers had positive lung '*26 Cal. 3d at 610-11, 607 P.2d at 936, 163 Cal. Rptr. at 144. ^^See notes 65-69 supra and accompanying text. ^See Cooke, Asbestos Dust and the Curious Bodies Found in Pulmonary Asbestosis, 2 Brit. Med. J. 578 (1929). ^''See notes 67-69 supra and accompanying text. ^Telton, The Prevention of Asbestos-Related Diseases, in Asbestos: Properties, Applications, and Hazards 496 (Michaels & Chissick ed. 1979). ^Cooke, Fibrosis of the Lungs Due to the Inhalation of Asbestos Dust, 2 Brit. Med. J. 147 (1924). ^°°See, e.g., Haddow, Clinical Aspects of Pulmonary Asbestosis, 1929 Brit. Med. J. 580; Merewether, A Memorandum on Asbestosis, (pts. 1-3) 1933-34 Tubercle 69, 109, 152; Merewether, The Occurrence of Pulmonary Fibrosis and Other Pulmonary Affec- tions in Asbestos Workers, (pts. 1-2) 1930 J. Indus. Hygiene 198, 239; Seiler, A Case of Pneumoconiosis, 1928 Brit. Med. J. 982; Wood, Pulmonary Asbestosis, 1929 Tubercle 353; Wood & Gloyne, Pulmonary Asbestosis, 1930 Lancet 445. '"^Motley, supra note 41, at 22. 1982] ASBESTOS LITIGATION 699 damage while only seventeen percent were asymptomatic/"^ One of the few American doctors who devoted time and research to the asbestos problem before the mid-1930's was Dr. K. A. Lynch. Dr. Lynch's articles, however, received little attention in the medical field. ^"^ Like the early British medical literature, the Lynch studies, the Lanza studies, and the other American studies dealt almost ex- clusively with the effect of asbestos inhalation on asbestos textile workers and mine workers.^"* None of these studies examined the ef- fects of asbestos exposure on shipyard workers, insulation workers, bystanders, or consumers.^"^ In 1937, Dr. LeRoy V. Gardner at the Saranac Laboratory, Saranac Lake, New York, began asbestos dust research at the re- quest of, and with the financial backing of ten American manufac- turers of asbestos products. ^°^ The Saranac study continued into the 1960's, but no articles or papers of any kind were released on asbestos-related diseases.^"' In 1946, the Fleischer-Drinker Re- ^°T