This section contains the nature of the case and procedural background.

Rita (P) was born on October 4, 1962. Her mother, Shirley (P), obtained a prescription for and ingested DES from May 1962 until the date Rita (P) was born. On January 4, 1980, Rita (P) was diagnosed as suffering from clear cell adenocarcinoma of the vagina. Rita (P) underwent a radical hysterectomy, pelvic node dissection, and partial vaginectomy. Shirley (P) cannot remember which drug company manufactured the DES she ingested. Nor can her pharmacist. Shirley (P) does remember that she took the drug in 100 mg doses. Ps sued numerous drug companies on the theories of negligence, strict liability, and breach of warranty, for personal injuries, pain, suffering, and destruction of the parent-child relationship. Ps based the suit on the companies' concerted or joint action to gain FDA approval and to market DES. Ps allege this concerted action is established by (1) the manufacturers' collaboration in testing and marketing DES, (2) the marketing of DES on a mutually agreed-upon formula, and (3) the marketing of DES as a fungible item, which led to the selling of DES without reference to the brand prescribed. The defendants moved for summary judgment, alleging that Ps' inability to identify the correct manufacturer of the drug was fatal to Ps' cause of action. The trial judge granted summary judgment to all of the defendants except Ds and pharmacist Ludwig. The trial judge dismissed defendants who had proved they did not market DES in the dosage or form ingested by Shirley (P) and those who had proved that they did not market DES for accidents of pregnancy. Others were dismissed because they did not market DES in Washington State. The trial court denied the motion to Ds under alternate liability. Ps filed a notice of appeal, and so did Ds. Ps claim there should be broader liability under concerted action, enterprise, or market-share theories. The defendants argue that they were properly dismissed. Ds claimed that neither was identified as the actual defendant that manufactured or distributed the DES ingested by Shirley (P), and the probability that either was such party is very small, in that they are but two manufacturers from a large potential number of defendants.

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