How have courts interpreted a burden-shifting instruction in a medical malpractice case?

Although I conclude that the trial court properly gave the burden-shifting instruction in this matter, it erred in conditioning its use on plaintiffs' waiver of any claim for punitive damages. It appears that the trial court relied on Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, 213 Cal.Rptr. 547. Its reliance was misplaced.

Magallanes involved a suit against multiple defendants based on the market share theory of liability we crafted in Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924. Sindell involved a situation in which the plaintiff was unable to identify which of numerous defendants manufactured the drug that actually caused her injury. We held that it was reasonable to "measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage which the [drug] sold by each of them ... bears to the entire production of the drug sold by all defendants for that purpose." (Id. at pp. 611-612, 163 Cal.Rptr. 132, 607 P.2d 924.) The burden then would shift to the defendants to demonstrate that they could not have made the drug that injured the plaintiff. (Id. at p. 612, 163 Cal.Rptr. 132, 607 P.2d 924.) Magallanes held that punitive damages are not available in such a case because they were intended to individualize punishment of wrongdoers and, in a Sindell-type action, there could be no finding of individual wrongdoing.

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