more likely than not that any one of the three, as opposed to any of the others, supplied the salmon consumed by Sharon Santarelli. Absent such evidence, plaintiffs cannot establish liability on the part of any of the three wholesalers.
Evidence linking the defendant to the product which allegedly injured the plaintiff is a necessary element of plaintiff's case. It makes no difference that plaintiff was not at fault in destroying or discarding evidence key to that determination. This is not a matter of sanctioning the party responsible for the spoliation of evidence. Cf. Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994) (discussing sanctions appropriate in event of spoliation of evidence) and Schwartz v. Subaru of America, Inc., 851 F. Supp. 191 (E.D.Pa. 1994) (same).
Rather, it is a question of whether the plaintiff can establish all elements necessary to make out a prima facie case. If the plaintiff cannot link each defendant to the product which allegedly caused her injury, she cannot prevail against that defendant. City of Philadelphia v. Lead Industries Association, Inc., 994 F.2d 112, 123-29 (3d Cir. 1993) (applying Pennsylvania law).
After reviewing the development and current state of Pennsylvania products liability law, the Third Circuit concluded in Philadelphia, that Pennsylvania
has not adopted any version of a market share theory which would allow a products liability plaintiff to recover against one or more defendants engaged in manufacturing or marketing the type or class of product allegedly responsible for plaintiff's injuries. Id. at 123-27. See also: Skipworth v. Lead Industries Assoc., 665 A.2d 1288 (Pa. Super. Ct. 1995) and Mellon v. Barre-National Drug Co., 431 Pa. Super. 175, 636 A.2d 187, 192 (Pa. Super. Ct. 1993).
The market share theory of liability derives from the decision of the California Supreme Court in Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (Cal. 1980), in which the plaintiff sued to recover for injuries sustained as the alleged result of her mother's ingestion of Diethylstilbestrol (DES) during pregnancy. Skipworth v. Lead Industries Assoc., 665 A.2d 1288 (Pa. Super. Ct. 1995). The California Supreme Court held that the plaintiff need not identify the defendant that manufactured the DES ingested by her mother on the ground that all manufacturers of products identical to the one that harmed a plaintiff are liable to that plaintiff in proportion to their respective market share, regardless of which actually supplied the DES allegedly responsible for her injury.
Further, even if Pennsylvania followed one of these theories, liability still would not lie under the facts presented here. All of the theories, as commonly applied by other jurisdictions, apply only in situations in which all defendants in the group sued manufactured or marketed a defectively designed product. Under the theory that all such entities were equally at fault and each derived economic benefit from the sale of the defective product, the law imposes liability on each defendant in the group generally. "Tortious conduct by all defendants is the sine qua non of market share liability." Philadelphia, 994 F.2d at 125.
Here, the defect alleged is more akin to a manufacturing defect than a design defect. There are no allegations that all farm-raised salmon sold by the defendants were infected with ciguatera or other toxins. Rather, the allegation is that the particular salmon purchased and consumed by plaintiff contained such toxins. Thus, even if the market share theory or some variation thereof applied under Pennsylvania law, liability still would not attach. There are no allegations before us that all wholesalers or suppliers of farm-raised salmon exposed their consumers to ciguatera or other toxins.
Nor is the theory of alternative liability available to plaintiffs under Pennsylvania law. "Alternative liability holds all tortfeasors who are unable to exculpate themselves jointly and severally liable for the plaintiff's injury." Id. at 127. In Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707, 709 (Pa. 1970), the Pennsylvania Supreme Court adopted the definition of alternative liability set forth in the Restatement (Second) of Torts, which provides:
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 uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.
Id. (quoting Restatement (Second) of Torts, § 433B(3) (1965)). The Third Circuit went on to note, however, that "the Pennsylvania Supreme Court has approved alternative liability only when each defendant's tortious conduct was simultaneous and identical, and all potential tortfeasors were joined as defendants." Those parameters plainly do not apply here. The wholesale suppliers' conduct was neither simultaneous nor identical, nor is there any evidence implicating more than one wholesaler. See, e.g, Skipworth, 665 A.2d at 1292.
Nor can plaintiffs available themselves of an enterprise liability theory. Enterprise liability derives from a holding by the United States District Court for the Eastern District of New York in Hall v. . I. DuPont De Nemours & Co., 345 F. Supp. 353, 376-78 (E.D.N.Y. 1972). In that case, thirteen children injured by blasting caps sued six manufacturers of the caps and their trade association. Collectively, the six manufacturers produced virtually all blasting caps sold in this country. The district court denied defendants' motion to dismiss on causation grounds, holding that defendants may be subject to liability even if plaintiff's injury cannot be linked to a particular defendant if: 1) a limited number of suppliers or manufacturers supply such products and all are joined as defendants; 2) all defendants possessed joint knowledge of the risks inherent in the product and a joint capacity to reduce the risks; and 3) each delegated the responsibility to set safety standards to a trade association which failed to reduce the risks associated with use of the product. Id. at 378.
The Pennsylvania appellate courts have never adopted the enterprise theory of joint liability. Philadelphia, 994 F.2d at 129, citing Burman v. Golay & Co., 420 Pa. Super. 209, 616 A.2d 657, 660 (Pa. Super. Ct. 1992).
We will, therefore, grant the motion for summary judgement filed by Aqua Star, Bay State, Heritage Salmon, and BP America (BP). Plaintiffs' claims against Price Chopper and its parent corporation, Golub, remain.
Claims against Price Chopper
Plaintiffs' claims against Price Chopper and Golub are not subjected to the same defenses as the claims against the wholesalers. The seller of a defective product is liable for the harm caused by that product. Price Chopper apparently does not contest that plaintiff Sharon Santarelli purchased the salmon which she consumed from one of its stores. Plaintiffs have produced, as evidence of the same, a copy of the register receipt dated January 18, 1992 which reflects the purchase of salmon that date from Price Chopper's Wilkes-Barre store. (Record document no. 41, exhibit "G")
Price Chopper argues that it should be exempt from liability in this case because it will be deprived of a right of indemnification against the culpable supplier. That unfortunate circumstance does not entitle Price Chopper to exemption from its own liability as the seller of an allegedly defective product. It remains liable for such harm which its product may have caused to the plaintiffs even if it may be unable to obtain indemnification from its supplier.
Price Chopper's motion for summary judgment on that ground will, therefore, be denied.
Concentration of toxins in the salmon
Price Chopper argues that it is entitled to summary judgment, because the evidence does not establish that the concentration of ciguatera toxin in the fish would have caused illness in the average consumer. Price Chopper asserts that plaintiff reacted because she was overly sensitive to minimal levels of toxin present in the salmon--levels which would not have caused a toxic reaction in the average consumer. Price Chopper further asserts that destruction of the remaining salmon deprived it of the opportunity to perform more exhaustive testing on the levels of toxin present in the salmon.
Plaintiff has produced expert evidence to the contrary. Testing performed by Dr. Hokama confirmed the presence of ciguatera toxin in the salmon samples sent to him by the plaintiff. Dr. Hokama states in his report that the threshold concentration of ciguatera toxin necessary to cause a reaction varies from individual to individual. Threshold levels range between 32 and 230 ng of toxin. Dr. Hokama concluded that the concentrations found in the fish consumed by plaintiff exceeded the minimal threshold levels. Dr. Hokama stated in his report: "If patients ate 1 or more of the salmon pieces sent us, then he/she will most likely be ill as this will fall in the range of 32 to 230 ng of toxin." (Record document no. 39, exhibit "I", p. 2) The evidence adduced by plaintiffs on this issue is plainly sufficient to ward off summary judgment.
Price Chopper argues that the destruction of the remaining salmon samples deprived it of the opportunity to perform further testing to confirm or refute the concentration conclusions reached by Dr. Hokama. We disagree. Although defendant's argument has some merit in the sense that its expert would have had an opportunity to perform more extensive and exhaustive testing had the samples not been destroyed, Dr. Baden did test to determine concentration levels. (Record document no. 39, exhibit "E")
Here, unlike the identification issue which we discuss above, plaintiff has established a prima facie case, and it is a question of whether it would be unjust to allow them to proceed to trial because defendant was deprived of the opportunity to obtain countervailing facts due to the loss or destruction of evidence. This, we find, brings into play the spoliation of evidence analysis.
Under the Third Circuit's decision in Schmid, district courts have the authority to sanction a party who destroys or alters relevant evidence. Whether sanctions are appropriate and the level of sanctions warranted turns on the following:
1) the degree of fault of the party who altered or destroyed the evidence;
2) the degree of prejudice suffered by the opposing party; and