From: Wright, Richard <rwright@kentlaw.iit.edu>
To: Vaughan Black <Vaughan.Black@dal.ca>
CC: Jason W Neyers <jneyers@uwo.ca>
obligations@uwo.ca
Date: 19/03/2017 22:36:29 UTC
Subject: Re: Clements v Clements, Risk and Sindell
Without re-reading Sindell, my recollection is that it was considered that the adenocarcinoma was a "signature" disease caused solely, at least in the relevant circumstances, by exposure to DES, and that all suppliers of DES had behaved tortioiusly (through either negiigence of strict liability).  So, yes, read literally and without possible qualification, the material contribution to risk exception in Clements would apply to each supplier of DES.

That exception simply restates the alternative liability doctrine stated in Summers v. Tice (and Cook v. Lewis), which was argued but rejected in Sindell, on the ground, if I recall correctly, that not all possible suppliers of the DES were before the court (a requirement not initially stated in Summers and difficult to support).  It seems clear that the Sindell court, and other courts, including the Fairchild court, were not willing to extend the Summers doctrine, involving full liablity, to situations involving lots of defendants and lots of plaintiffs. So both courts instead turned to proportional liability, with Sindell requiring (again, not clear why, especially given proportional liability based on market share) joining of an undefined "substantial" portion of the market.

Note that, under a market share based calculation of a statistically-based "balance of probability", Eli Lilly possibly could have been held to have caused abd be held fully liable for every one of the adenocarcinoma injuries, since there apparently was evidence that it contributed, directly or indirectly, to more than half of the market. As I have noted before, the Sindell court avoided this paradox (one of several) created by treating the "balance of probability" as a statistical measure rather than, properly, as a minimal degree of belief, by referring to the number of suppliers rather than the market share of the various suppliers.

One last note, as I have stated before: individual causation could easily be proved in Clements using the NESS criterion, which the Court failed to see given its continued myopic focus on but-for, which is the source of almost all of its difficulties in this area. More will be said, briefly, at the Obligations conference in Vancouver in early May.  - RWW

On Sun, Mar 19, 2017 at 2:41 PM, Vaughan Black <Vaughan.Black@dal.ca> wrote:

But are there not other (non-tortious) causes of the Sindell plaintiffs' adenocarcinoma apart from the DES the defendants manufactured?  And wouldn't the presence of those non-tortious causal candidates make Clements material contribution contribution unavailable?

vb

From: Jason W Neyers <jneyers@uwo.ca>
Sent: March 19, 2017 4:21:11 PM
To: obligations@uwo.ca
Subject: ODG: Clements v Clements, Risk and Sindell
 

Dear Colleagues:

 

I was just looking at Clements v Clements again for the first time in a few years and it occurred to me that given the way that the SCC frames the test of causation for material contribution to risk, there would be liability on the facts of Sindell v Abbott Laboratories if that occurred in Canada.  Each individual plaintiff would be able to establish (a) she suffered loss that would not have occurred “but for” the negligence of the drug companies taken globally in the marketing the drug; and (b) the plaintiff through no fault of her own would be unable to show that any one of the possible tortfeasors was a but for cause of her injury, because each company could point to the others as a cause of the injury. This process of reasoning could be repeated by each of the potential plaintiffs (which could number in the thousands or more).  The SCC test appears to be even easier for the plaintiff than that in Sindell since there is no requirement that all the potential tortfeasors be before the court or even that the tortfeasors chosen to be sued represent a substantial percentage of the possible tortfeasors.

 

I just wanted to check that others would agree with this analysis and that I haven’t missed anything in Clements or any subsequent SCC case that would foreclose this type of analysis.

 

Sincerely,

 

​Jason