dissenting. The majority, by today’s decision, rings the death knell for most of the DES litigation in Ohio. Specifically, the majority, in the syllabus, writes the following prescription for claimants who have been injured by DES and who, through no fault of their own, have been unable to identify the particular manufacturer of the product that caused their injuries: “In Ohio, market-share liability is not an available theory of recovery in a products liability action.” This prescription by the majority is the functional equivalent of saying: “Take two aspirin and do not call us in the morning.” I. respectfully dissent!
The majority’s holding in this case is not only contrary to general notions of fairness and equity, but it is also predicated on numerous misstatements and *356misapplications of law. A reading of today’s decision should reveal to any interested person that the majority quite simply does not wish to recognize market-share liability and, to that end, it has concocted a rationale to support its predetermined conclusion that market-share liability is not a viable theory of recovery in Ohio.
The majority’s entire decision in this case is built upon the erroneous premise that market-share liability relieves a plaintiff of the obligation to prove proximate causation. For instance, in the section of the opinion entitled “MARKET-SHARE LIABILITY,” the majority says that “[i]n response to the DES plaintiff’s inability to establish causation, the California Supreme Court fashioned the market-share theory of liability in its benchmark decision, Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.” The majority further claims that the Sindell court “relieved] the plaintiff of the burden of proving causation.” The majority also asserts that “[m]arket-share liability thus enables a plaintiff who cannot identify a particular tortfeasor to sustain a tort cause of action despite an inability to show proximate causation.” (Emphasis added.) The fallacy of this argument is demonstrated by a brief discussion of Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691.
Goldman involved questions concerning the alternative liability theory and the market-share liability theory in the context of asbestos litigation. At the outset of the Goldman decision, this court emphasized that “it is important to understand that both alternative liability and market-share liability are exceptions to the general rule that a plaintiff has to prove an injury was caused by the negligence of a particular defendant. * * * [B]oth theories merely relax the requirement that the plaintiff identify which one of a group of negligent tortfeasors caused the injury to the plaintiff. In the context of asbestos litigation, the plaintiff has the burden of proving exposure to asbestos-containing products. A defendant is not liable under either theory if the evidence fails to establish that [the victim] was exposed to the type of product it produced.” (Emphasis added.) Id. at 42, 514 N.E.2d at 693.
In Goldman, a majority of this court determined that the alternative liability theory was not applicable to the facts of that case, holding that “[alternative liability theory in an asbestos litigation case will be rejected where the plaintiff is unable to prove that the injury was caused by the asbestos-containing products of any of the defendants before the court.” Id. at paragraph two of the syllabus. The Goldman court also held that “[mjarket-share liability is inappropriate as a viable theory of recovery in an asbestos litigation case, especially where it cannot be shown that all the products to which the injured party was exposed are completely fungible.” (Emphasis added.) Id. at paragraph three of the syllabus.
*357As Goldman clearly illustrates, market-share liability does not eliminate the need for proof of proximate causation. Rather, the theory of market-share liability merely relaxes the requirement that the injured plaintiff identify which one of a group of tortfeasors caused the plaintiffs injuries. Id. at 42, 514 N.E.2d at 693. The plaintiff still must prove proximate causation, but need not identify the specific party that was actually responsible for the plaintiffs particular injury. Today’s majority has gone to great lengths to distort that issue.
Recognizing the fallacy of the argument that market-share liability dispenses with the need for proof of proximate causation, the majority then resorts to a shell game with the issues, hoping that the resulting confusion will carry the day.
In the section of the opinion entitled “OHIO TORT LAW,” the majority states that “Ohio common law has long required a plaintiff to prove that a particular defendant caused his or her injury through negligence.” Although this statement is undoubtedly true in a number of contexts, it is fundamentally untrue when it comes to the alternative liability theory and, of course, the market-share liability theory. Both of these theories were specifically developed to eliminate that identification requirement. Although the majority specifically recognizes that fact with respect to market-share liability, the majority ignores it with respect to alternative liability. The majority states that “[u]nder the market-share theory, the plaintiff is discharged from proving this important causal link,” i.e., identification of the particular tortfeasor responsible for the injury. (Emphasis added.) The fact is that the same thing is basically true under the alternative liability theory.
The majority then attempts to further isolate the theory of market-share liability by engaging in a blatantly distorted discussion of Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, and the alternative liability theory. The purpose of the majority’s discussion of Minnieh should be obvious — the majority seeks to leave the reader with the mistaken impression that the alternative liability theory requires identification by the plaintiff of the particular tortfeasor that caused the plaintiff’s harm, whereas market-share theory does not. However, with respect to alternative liability, this court, in Minnieh, adopted 2 Restatement of the Law 2d, Torts (1965), Section 433B(3), which states that “[w]here 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.” (Emphasis added.) Minnieh, syllabus. We followed Minnich in Goldman, 33 Ohio St.3d 40, 514 N.E.2d 691, paragraph one of the syllabus, wherein we held that “[u]nder the alternative liability theory, plaintiff must prove (1) that two or more defendants committed tortious acts, and (2) that plaintiff was injured as a proximate result of the *358wrongdoing of one of the defendants.” Clearly, under the alternative liability theory, the plaintiff need not demonstrate which of the tortfeasors caused the plaintiffs harm. See, also, Huston v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d 505. Thus, identification by the plaintiff of the particular tortfeasor responsible for the injury is not necessary under the alternative liability theory, as is also the case in the context of market-share liability.
Next, the majority addresses the Goldman decision. Prior to today, Goldman was the only case in which this court discussed the market-share theory of liability. Goldman involved, among other things, the question whether market-share liability should be recognized in the context of an asbestos case.
In discussing Goldman, the majority says that “[t]hree years after Minnich, this court decided [Goldman], an asbestos litigation case wherein the court rejected both alternative and market-share liability.” Thus, according to the majority, Goldman rejected both alternative and market-share liability as viable theories of recovery in Ohio. Nothing could be further from the truth. The alternative liability theory is alive and well in Ohio and has been addressed and/or applied in various contexts before and after Goldman was decided. See, e.g., Minnich, 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199; Huston, 52 Ohio St.3d 214, 556 N.E.2d 505; and Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196. The truth is that Goldman rejected alternative liability on the facts of that case, and refused to apply market-share liability in asbestos litigation only. The Goldman court disapproved of market-share liability in asbestos litigation not because of any disapproval of the market-share theory in general, but because the court determined that asbestos was not a fungible product. Goldman, 33 Ohio St.3d at 50-51, 514 N.E.2d at 700-701. In contrast, DES is a fungible product, as the court in Goldman recognized. Id. In this regard, Goldman left for future consideration the question whether market-share liability is applicable in other contexts. Id. at 51-52, 514 N.E.2d at 701-702. Moreover, the Goldman court favorably discussed the development of, and the policy reasons behind, judicially created market-share liability for DES litigation, stating:
“Market-share theory was developed by the California Supreme Court in Sindell v. Abbott Laboratories, supra. In that case, the court was faced with a class-action suit brought by the daughters of women who had taken the anti-miscarriage drug, DES. This drug, ingested by pregnant women, had caused cancer in several of their daughters.
“The Sindell court actually rejected all of the plaintiffs’ theories of recovery, including the alternative liability theory of Summers [v. Tice (1948), 33 Cal.2d 80, 199 P.2d 1]. The court, however, recognized the almost insurmountable problems of proof facing the DES plaintiffs, namely, the inability to identify which company *359or companies produced the DES ingested by their mothers while the plaintiffs were still in their mothers’ wombs. The court then fashioned a variation of Summers alternative liability, on public policy grounds, to address the problem. The court justified its rule in the following terms:
“ ‘In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer. The response of the courts can be either to adhere rigidly to prior doctrine, denying recovery to those injured by such products, or to fashion remedies to meet these changing needs. * * *
“ ‘The most persuasive reason for finding plaintiff states a cause of action is that advanced in Summers: as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury. Here, as in Summers, plaintiff is not at fault in failing to provide evidence of causation, and although the absence of such evidence is not attributable to the defendants either, their conduct in marketing a drug the effects of which are delayed for many years played a significant role in creating the unavailability of proof.
U Í * * *
“ ‘Where, as here, all defendants produced a drug from an identical formula and the manufacturer of the DES which caused plaintiffs injuries cannot be identified through no fault of plaintiff, a modification of the rule of Summers is warranted. As we have seen, an undiluted Summers rationale is inappropriate to shift the burden of proof of causation to defendants because if we measure the chance that any particular manufacturer supplied the injury-causing product by the number of producers of DES, there is a possibility that none of the five defendants in this case produced the offending substance and that the responsible manufacturer, not named in the action, will escape liability.
“ ‘But we approach the issue of causation from a different perspective: we hold it to be reasonable in the present context to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage which the DES sold by each of them for the purpose of preventing miscarriage bears to the entire production of the drug sold by all for the purpose. Plaintiff asserts in her briefs that Eli Lilly and Company and five or six other companies produce 90 percent of the DES marketed. If at trial this is established to be the fact, then there is a corresponding likelihood that this comparative handful of producers manufactured the DES which caused plaintiffs injuries, and only a 10 percent likelihood that the offending producer would escape liability.
“ ‘If plaintiff joins in the action the manufacturers of a substantial share of the DES which her mother might have taken, the injustice of shifting the burden of proof to defendants to demonstrate that they could not have made the substance *360which injured plaintiff is significantly diminished. While 75 to 80 percent of the market is suggested * * *, we hold only that a substantial percentage is required.
“ ‘The presence in the action of a substantial share of the appropriate market also provides a ready means to apportion damages among the defendants. Each defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiffs injuries.’ (Emphasis added.) Sindell, supra, 26 Cal.3d at 610-612,163 Cal.Rptr. at 144-145, 607 P.2d at 936-937.
“Notwithstanding the policy reasons cited by the Sindell court, it is clear that the significant factual differences between the DES cases and asbestos litigation make market-share liability inappropriate to this case. The foremost difficulty is the concept of fungibility. Market-share liability is inappropriate as a viable theory of recovery in an asbestos litigation case, especially where it cannot be shown that all the products to which the injured party was exposed are completely fungible. DES was a synthetic estrogen that was produced pursuant to a single formula. Thus, while the drug was marketed by two hundred companies, there was no difference in the drug or its health risks. In contrast, asbestos is not a ‘product,’ but rather a generic name for a family of minerals.
“The courts that have considered the application of market-share liability to asbestos litigation have uniformly rejected the theory based on the lack of fungibility, as well as the difficulty in defining the market. For example, a federal district court, sitting in California, refused to apply Sindell to an asbestos case, even though market-share liability had been recognized in California by Sindell. * * *
“While arguably the difficulties of applying market-share liability in this case are not so acute because the ‘product field’ is narrowed to [asbestos] tape, inherent difficulties remain.
“ * * * In the case of DES, however, there is no difference among the products distributed by the various companies. Crucial to the Sindell court’s reasoning was this fact: there was no difference between the risks associated with the drug as marketed by one company or another, and as all DES sold presented the same risk of harm, there was no inherent unfairness in holding the companies accountable based on their share of the DES market. This fundamental difference between DES and asbestos — indeed, asbestos tape alone — is enough to undercut the Sindell justification for market-share theory in this case.
*361“While we are not unmindful of the great difficulties faced by victims of asbestos exposure, the answer is not contained in a market-share theory that was advanced to address a situation with fewer complexities than those surrounding asbestos exposure [ie., situations involving exposure to DES] and the litigation it has spawned.
“We can perceive of no problem more in need of a legislative solution [ie., the insurmountable problem of proof for victims of asbestos exposure]. * * *
“In conclusion, * * * [e]ven if we were to recognize market-share liability as a viable theory of recovery, this [asbestos case] is not the case in which to do so. * * * ” (Emphasis sic.) Goldman, 33 Ohio St.3d at 49-52, 514 N.E.2d at 699-702.
Today’s majority concludes its discussion of Goldman by quoting a select passage from that case indicating that recognition of market-share liability is a function best addressed by the General Assembly. In reality, the Goldman court had indicated that legislative action was needed to address the particular problems associated with market-share liability in asbestos litigation, as opposed to litigation involving DES exposure. Apparently, today’s majority has selectively quoted from Goldman to create the impression that the General Assembly is the only appropriate body to recognize the market-share liability theory in DES litigation. The majority then uses that misguided impression as a platform for launching into a tortured analysis of Ohio’s Products Liability Act. It is here that the majority’s shell game becomes most deceptive.
With respect to the 1988 version of Ohio’s Products Liability Act, the majority says that “[fjormer R.C. 2307.71 et seq. provided that manufacturers were subject to liability under the Act only if the plaintiff established (1) that the product was defective at the time it left the control of its manufacturer, and (2) that the defective aspect of the product proximately caused the plaintiffs injury.” (Emphasis added.) In making that statement, the majority is apparently once again asserting that there is no requirement under the market-share liability theory that the plaintiff satisfy the burden of proving proximate causation. Similarly, the majority finds that the current version of R.C. 2307.73(A) is “instructive” on that issue, presumably because the statute indicates that a plaintiff in a product liability action has to show not only that the product was defective and that the defective aspect of the product was a proximate cause of the injury, but that the manufacturer designed, formulated, produced, created, made, constructed, assembled, or rebuilt the product. However, it should be obvious to anyone that for DES claimants to recover against DES manufacturers under the market-share theory of liability, the plaintiff would be required to demonstrate that DES was a defective product at the time it left the control of DES manufacturers, and that *362DES proximately caused the plaintiffs injuries. Further, it bears repeating that market-share liability does not eliminate the need for proof of proximate causation as the majority has suggested — rather, it “merely relax[es] the requirement that the. plaintiff identify which one of the group of negligent tortfeasors caused the injury to the plaintiff.” Goldman at 42, 514 N.E.2d at 693. Even the majority begrudgingly recognizes this when it admits, elsewhere in the decision, that “[t]he only causation a plaintiff need prove in order to recover under a market-share theory is the causal connection between exposure to, or use of, the product at issue [ie., DES] and the injury sustained.”
Moreover, the plaintiff in a DES case involving market-share liability must aver that the defendants assembled in the litigation are, for instance, DES manufacturers, as opposed to manufacturers of “Beanie Baby” toys, Barbie Dolls, or some other product or material that is unrelated to DES. The common-law elements for market-share liability are as follows: (1) the product at issue must be fungible, (2) the plaintiff is unable to identify the specific manufacturer, (3) there must be joinder of manufacturers representing a substantial share of the market, (4) the product is defective, and (5) the plaintiff was injured as a proximate result of the defective aspect of the product. See, generally, Goldman, 33 Ohio St.3d 40, 514 N.E.2d 691, and Jackson v. Glidden Co. (1995), 98 Ohio App.3d 100, 647 N.E.2d 879. The plaintiff in DES litigation who demonstrates the existence of these elements will have satisfied the burden of demonstrating that DES was defective at the time it left the control of DES manufacturers. The fact is that the common-law theory of market-share liability for DES litigation is entirely consistent with the causation requirement of the Ohio Products Liability Act.
The majority also directs our attention to R.C. 2307.791, and states:
“Moreover, the General Assembly specifically stated that its purpose in enacting current R.C. 2307.791 was ‘to codify an essential requirement for the use of the alternative liability theory in actions brought under Ohio law, as enunciated by’ this court in Minnich and Goldman. Section 5(Q), Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 4028. R.C. 2307.791 provides:
“ ‘A manufacturer shall not be held hable for damages based on a product liability claim that asserts any of the following theories:
“ ‘(A) Industrywide or enterprise liability * * *.
“ ‘(B) Alternative liability, except when all possible tortfeasors are named and subject to the jurisdiction of the court.’ ”
I have absolutely no idea why the majority cites R.C. 2307.791 and the statement of legislative intention accompanying the enactment of Am.Sub.H.B. No. 350. The fact that R.C. 2307.791 indicates that a manufacturer cannot be *363held liable on the alternative liability theory unless all possible tortfeasors are named and subjected to the jurisdiction of the court has nothing to do with the market-share theory of liability. If the majority is somehow suggesting that market-share liability equates to “alternative liability,” or that market-share liability is “[industrywide or enterprise liability,” then the majority is just plain wrong. The concept of market-share liability is different from the concept of alternative liability, and the concept of industrywide or enterprise liability is different from the concept of market-share liability and alternative liability. Market-share liability comes into play, if at all, only where the theory of alternative liability is inapplicable. Goldman, 33 Ohio St.3d at 48-49, 514 N.E.2d at 699 (recognizing that while market-share liability involves an assessment of damages, it is, fundamentally, a theory of assessing liability, and that the market-share liability theory applies only where the alternative liability theory does not). Indeed, the discussion of Sindell in today’s majority decision demonstrates that even the majority is aware of the distinctions between industrywide or enterprise liability, alternative liability, and market-share liability.
Further, the fact that the General Assembly, in R.C. 2307.791, mentions industrywide enterprise liability and alternative liability but says nothing regarding market-share liability speaks volumes on the General Assembly’s true intentions. If the General Assembly had wished to exclude market-share liability as a theory of recovery for DES claimants in Ohio, it clearly would have included market-share liability in the list of excluded theories of liability in R.C. 2307.791. The fact that the General Assembly made no mention of market-share liability in R.C. 2307.791 indicates that the General Assembly viewed market-share liability as a matter for the courts to decide. Indeed, the history of Am.Sub.H.B. No. 350 confirms that the General Assembly did not wish to exclude market-share as a viable theory of liability in Ohio. As introduced in the 121st General Assembly, House Bill No. 350 contained provisions to exclude evidence of any of the following theories of liability in a claim against a manufacturer for product liability: (1) industrywide enterprise liability, and (2) market-share liability, when a nonfungible product is involved. Proposed R.C. 2307.73(C) in H.B. No. 350 as introduced. In the course of the legislative process, the reference to market-share liability was removed. Am.Sub.H.B. No. 350, as subsequently enacted, made no mention of market-share liability. Under these circumstances, it is far more likely than not that the General Assembly, which was unquestionably aware of the market-share theory of liability, had absolutely no intention whatsoever when it enacted Am.Sub.H.B. No. 350 to preclude market-share liability as a viable theory of recovery in Ohio.
Nevertheless, the majority concludes its discussion of the Ohio Products Liability Act by determining, out of thin air, that the language of the Act reveals an unmistakable legislative intention to have excluded market-share liability as a *364viable theory of recovery in a products liability case. Remarkably, the majority says:
“Statutory language that is plain and unambiguous, and conveys a clear and definite meaning, needs no interpretation. * * * In this instance, the 1988 version of the Products Liability Act applicable to Sutowski’s claim unmistakably required identification of a particular tortfeasor: the successful plaintiff had to establish that the harmful product was defective when it left the manufacturer’s control. While not applied retroactively, the 1997 amendments to the Act serve to conclusively reinforce this identification requirement.” (Emphasis added.)
Most assuredly, the majority has not applied the “plain and unambiguous” language of any statute, and the majority has certainly not considered the history of the Act. The 1988 version of the Product Liability Act says nothing whatsoever about market-share liability, and the 1997 amendments to the Act serve to “conclusively reinforce” nothing that the majority says. What the majority has done in this case is to interpret (or, more appropriately, misinterpret) the Act. The majority admits as much when it states, in the section of the decision entitled “CONCLUSION,” that “[i]t is, however, the role of the court to interpret the law, not to legislate.” (Emphasis added.) Is this a deathbed confession by the majority that it has interpreted the Products Liability Act as opposed to applying the “plain and unambiguous” language of the Act, or is this just one more example of the multitude of errors and inconsistencies contained within the majority’s decision?
The majority also relies heavily on the Sixth Circuit’s decision in Kurczi v. Eli Lilly & Co. (1997), 113 F.3d 1426, while ignoring the teachings of Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, 677 N.E.2d 795. In Kurczi, the Sixth Circuit predicted that this court would reject the market-share liability theory. The court in Kurczi reasoned that by omitting any reference to market-share liability in the 1988 Products Liability Act, the General Assembly rejected market-share liability by implication. The court stated that “the Products Liability Act is clear: it does not by its express terms provide for market share liability and it is by its express terms exclusive. Thus, the Ohio Supreme Court would be precluded from adopting a new legal cause of action.” Id. at 1434. However, Kurczi did not. address this court’s decision in Carrel, which was decided shortly before the Sixth Circuit issued its decision in Kurczi.
Today’s majority, in its statement of the case, says that “[t]he Sixth Circuit did not consider Carrel when deciding Kurczi.” This is undoubtedly true, since Carrel compels a different conclusion from the one reached by Kurczi and by today’s majority. In Carrel, we recognized that “ ‘all common-law products liability causes of action survive the enactment of R.C. 2307.71 et seq., the Ohio Products Liability Act, unless specifically covered by the Act * * *.’ ” (Emphasis *365sic.) Id., 78 Ohio St.3d at 289, 677 N.E.2d at 800, quoting Byers v. Consol. Aluminum Corp. (1995), 73 Ohio St.3d 51, 52, 652 N.E.2d 643, 644 (Douglas, J., dissenting); and Curtis v. Square-D Co. (1995), 73 Ohio St.3d 79, 652 N.E.2d 664 (Douglas, J., dissenting). Despite this holding, the majority now says that “ [although Carrel and Kurczi are at odds in their analysis of the scope of the Ohio Products Liability Act, the Carrel decision does not undermine the validity of the Sixth Circuit’s ultimate conclusion in Kurczi. The Ohio Products Liability Act does not provide for market-share liability.” (Emphasis added.) What the majority is missing is that neither the 1988 Products Liability Act nor the 1997 amendments to the Act address market-share liability. Thus, under Carrel, the common-law market-share liability theory must survive!
The majority then goes on to say that “the market-share theory is not a part of Ohio common law that could be deemed, under Carrel, to survive the enactment of R.C. 2307.71 et seq. ” The majority reaches this conclusion based on the majority’s own analysis of Ohio law. However, I do not buy any of the majority’s “analysis” in this case. I also take particular exception to the majority’s statement that the “analysis by the Sixth Circuit [in Kurczi ] is unassailable, our decision in Carrel notwithstanding.” What the majority appears to be saying is that Carrel should be ignored.
In the section of the majority’s decision entitled “CONCLUSION,” the majority states: “We recognize that the DES plaintiff who, without fault, is unable to identify the manufacturer responsible for her injury engenders sympathy. It is, however, the role of the court to interpret the law, not to legislate. * * * We believe that the General Assembly should decide the policy question of whether Sutowski’s claims, or others like hers, warrant substantially altering Ohio’s tort law.” I have several observations concerning this section of the majority’s decision.
I am certain that the majority’s expressions of sympathy for the victims of DES will be greeted with skepticism. These expressions of condolences will ring hollow indeed, particularly when the victims of DES read the flummery set forth in the majority decision. In the past, this court, when necessary and appropriate, has never hesitated to acknowledge or create fair and realistic remedies for injured victims under principles of the common law. See, e.g., Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052, and Minnich, 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199. The market-share theory of liability should be formally recognized and adopted by this court in the context of this case, and no one understands this better than the victims of DES.
I also find it humorous to see the majority state in its conclusion that the General Assembly should decide the question whether Sutowski’s claim warrants “altering” Ohio’s tort law. Is the majority conceding that the General Assembly *366has, to date, never decided against market-share liability? This would be a peculiar (yet warranted) concession by the majority, since the majority has implied elsewhere in its decision that the General Assembly has already rejected the theory of market-share liability.
Finally, it should be noted that the members of today’s majority that have been elected to this court (Chief Justice Moyer and Associate Justices Cook and Stratton) say that it is the function of the General Assembly to decide the policy question of whether Ohio’s tort law should be altered to allow Sutowski’s claim. This is a strange claim given that we have decided other public policy questions that substantially alter Ohio tort and/or contract law, the most recent example being the case of Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 696 N.E.2d 201 (also decided this day). It would seem that one cannot have it both ways!
Accordingly, I would answer the certified question by recognizing the viability of market-share liability in DES cases. Because the majority does not do so, I respectfully dissent.
F.E. Sweeney and Pfeifer, JJ., concur in the foregoing dissenting opinion.