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Ruling bolsters liability plaintiffs

Fair is fair, and for every wrong there should be a right. But it doesn't always work that way, even in the courtroom. Recognizing that, and citing an obligation to modernize the law to keep pace with technology, the Florida Supreme Court took what some lawyers called "a major step forward" Thursday and broadened the rights of plaintiffs _ specifically, plaintiffs who have suffered injury from use of a product, but don't know who manufactured it.

The court adopted a theory of product liability _ already in existence in some form in 16 other states _ called the market share theory. It holds that if an injured person can't, after a good faith effort, identify the manufacturer of the harmful product, the entire industry can be held liable, according to how much of the market each company controls.

Terri Lynn Conley of Fort Lauderdale was diagnosed in 1977 as suffering from a pre-cancerous growth called cervical adenosis. She underwent surgery for removal of most of her cervix "and other pre-cancerous and cancerous tumors," the court said.

While pregnant with Terri, her mother had taken a drug called DES, which, the lawsuit charges, caused the unborn child to develop cancer later in life.

But by the time the cancer developed, records of who manufactured the specific dosages of the drug taken by Terri's mother had been lost or destroyed. The court ruled against her because she could not identify the manufacturer of the specific doses that had caused the harm to her mother.

An appellate court upheld the lower court's ruling but complained that the law was "inadequate to redress (Conley's) injuries." The appeals court urged the Supreme Court to adopt a "market share alternate liability" theory. The case was argued before the Supreme Court in 1986, and, four years later, the court made public its decision.

The court's ruling addressed DES cases only, and its applicability to other product liability cases is uncertain. Nevertheless, plaintiffs' lawyers reacted favorably and said they would argue that the ruling applies to other types of cases, too.

"I'm ecstatic. . . . I think it's absolutely wonderful," said Dianne J. Weaver, Terri Lynn Conley's Fort Lauderdale attorney. "It's a major step forward in the law. We've got women and men in the state of Florida who are victims who have had their sexual organs damaged, whose lives are at risk, who may well die,

who are finally going to have an opportunity for redress, who are going to be able to go before a jury and (have jurors) recognize the harm that was done to them."

Aaron Levine, a Washington-based attorney who handles many DES cases, estimates there are 100 to 150 such cases pending in Florida, and perhaps 1,000 nationwide. The court's decision, he said, might have direct impact on other complicated product liability matters such as cancers caused by exposure to asbestos, and AIDS-related cases caused by the use of contaminated blood products.

At least one widely known Florida case is headed back to the courtroom because of Thursday's ruling.

In September, U.S. District Judge Elizabeth Kovachevich reluctantly tossed out a suit brought by the Ray boys of Sarasota _ three hemophiliac brothers infected by the AIDS virus by blood products. The brothers could not identify which of three corporate defendants manufactured the plasma products that infected them.

In dismissing the suit, Kovachevich mentioned that the Supreme Court was considering changes in liability law, but said "unfortunately" no decision had been reached. "This is particularly disturbing given Florida's constitutional mandate that for every wrong there must be redress," the judge wrote.

Judith Kavanaugh, attorney for Ricky, Randy and Robert Ray, said the boys will ask Kovachevich for a rehearing of their case.

"This is an important step forward for plaintiffs' rights," said Kavanaugh. "Traditional theories of liability have proved inadequate."

It will be up to Florida's judges to decide how far-reaching Thursday's ruling will become, he said.

_ Staff writers John McKinnon and Bruce Vielmetti contributed to this report.

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