Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-87-0232-SPK. D.C. No. CV-87-0891-SPK. Samuel P. King, Senior District Judge, Presiding.
Before: Dorothy W. Nelson and Stephen S. Trott, Circuit Judges, and A. Wallace Tashima, District Judge.*fn* Opinion by Judge D.w. Nelson.
D.W. NELSON, Circuit Judge:
John Doe and John Smith filed separate suits against the manufacturers of a blood clotting factor and the United States. The district court granted summary judgment in favor of all defendants in both cases. Because the two cases raise similar issues, we have consolidated them for the purposes of this appeal.
John Doe and John Smith are hemophiliacs who have tested HIV positive. They received a clotting agent known as Factor VIII from Tripler Army Medical Center (TAMC). Factor VIII enables the blood of hemophiliacs to clot. In the United States, Factor VIII is manufactured and sold by the four appellees in these cases, Alpha Therapeutic Corporation (Alpha), Cutter Biological (Cutter), Armour Pharmaceutical Company (Armour) and Baxter Hyland Healthcare Corporation (Baxter).*fn1
Appellants claim that they were infected with the AIDS virus from Factor VIII sometime during 1983. Accordingly, they sued the four manufacturers of Factor VIII for negligence and strict liability. Because the appellants were uncertain as to which manufacturer provided TAMC with the infected clotting agent, appellants brought suit against all four manufacturers of the agent. They also sued the United States for negligence and for breach of its duty to warn appellants while they were treated at TAMC. Appellants originally filed suit in Hawaii state court; their cases were subsequently removed to federal district court.
On January 12, 1989, the district court granted summary judgment in favor of the defendants in the Doe action. On May 18, 1989, the court granted summary judgment in favor of the defendants in the Smith action. The district court held that because appellants could not identify exactly which manufacturers' product had caused their infection, under Hawaii law they could not bring a negligence suit. In addition, the court found that appellees were entitled to summary judgment for several other reasons. These reasons included the court's findings that the appellants could not prove the date of their infections and that because of the limited knowledge about AIDS at the time the infections occurred, appellees were not negligent as a matter of law. The court also found that the United States was not liable because "until 1984 there was no medical consensus that AIDS was transmitted through blood." Therefore, the court found that the appellants' treatment at TAMC had not fallen below the proper standard of care. Finally, the court held that appellants could not bring either a strict liability or negligence suit under Haw. Rev. Stat. § 327-51, Hawaii's Blood Shield Law.
Smith and Doe filed timely appeals. In addition, both appellants filed motions requesting that the Ninth Circuit certify two questions of law to the Hawaii Supreme Court pursuant to Haw. R. App. P. 13. Because the cases presented important state law issues of first impression, we granted Smith's motion.*fn2 On August 24, 1990, we filed an order certifying the following questions to the Hawaii Supreme Court:
(1) Does Hawaii's Blood Shield Law, Haw. Rev. Stat. § 327-51 preclude Smith from bringing a strict liability claim?
(2) Does Hawaii's Blood Shield Law, Haw. Rev. Stat. § 327-51, preclude Smith from bringing a negligence claim?
(3) Would Hawaii allow recovery in this case when the identity of the actual tortfeasor cannot be proven? If Hawaii would allow recovery, what theory (i.e., burden-shifting, enterprise liability, market share or other) would the Hawaii Supreme Court adopt?
See Smith v. Cutter Biological, Inc., 911 F.2d 374 (9th Cir. 1990). The Hawaii Supreme Court accepted our request, and on November 29, 1991, filed an opinion answering these questions. See Smith v. Cutter Biological, Inc., 72 Haw. 416, 823 P.2d 717 (Hawaii 1991) (" Cutter Biological "). With the benefit of that Court's responses, we now conclude that the district court erred in granting summary judgment. Accordingly, we reverse and remand this case for proceedings consistent with this opinion and that of the Hawaii Supreme Court.
I. ISSUES RELATING TO GRANT OF SUMMARY JUDGMENT
The district court concluded that the appellants' inability to identify precisely which manufacturer's product caused them harm prevented them from recovering against any manufacturer. In its response to our certified questions, the Hawaii Supreme Court has made clear that this was an erroneous legal Conclusion, and has delineated the legal theories available to appellants.
1. Recovery When Identity of Actual Tortfeasor Not Known
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. This approach was developed by the California Supreme Court in the classic case of Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (Cal. 1948). 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. Hall v. E.I. Du Pont, 345 F. Supp. 353 (E.D.N.Y. 1972). Finally, in Sindell v. Abbot Lab., 26 Cal.3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (Cal. 1980), cert. denied sub nom E.R. Squibb & Sons, Inc. v. Sindell, 449 U.S. 912, 66 L. Ed. 2d 140, 101 S. Ct. 285 (1980), the California Supreme Court developed the theory of market share liability. Under this third approach, 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.
The Hawaii Supreme Court has now endorsed, with some modifications, market share liability for this case. Cutter Biological, 823 P.2d at 728. The Court further indicated that for the purposes of this case, the relevant market should be the national market. Therefore, all four Factor VIII manufacturers, suppliers of the clotting agent to the national market, are properly defendants to the suit. Limitations for liability are as follows: a given defendant will never be liable for more than its share of the national market, and exculpatory allowances are ordinarily available for defendants that can show that they had no product on the national market at the time of a plaintiff's injury. Id. at 728-29. In the words of that court:
As a result of our determination that a national market is appropriate, as long as defendant is actually one of the producers of Factor VIII, there is little to justify exculpation of defendant. However, the exception would occur where defendant would prove that it had no product on the market at the time of the injury. As far as the defendants in this suit are concerned, it appears that none of them would be able to escape liability on that basis.
Id. at 729 (footnote omitted). On remand, the district court shall permit appellants to proceed with their tort suit against the manufacturer defendants under the theory of market share liability adopted by the Hawaii ...