I respectfully dissent. In these consolidated cases the majority adopts a wholly new theory which contains these ingredients: The plaintiffs were not alive at the time of the commission of the tortious acts. They sue a generation later. They are permitted to receive substantial damages from multiple defendants without any proof that any defendant caused or even probably caused plaintiffs’ injuries.
Although the majority purports to change only the required burden of proof by shifting it from plaintiffs to defendants, the effect of its holding is to guarantee that plaintiffs will prevail on the causation issue because defendants are no more capable of disproving factual causation than plaintiffs are of proving it. “Market share” liability thus represents a new high water mark in tort law. The ramifications seem almost limitless, a fact which prompted one recent commentator, in criticizing a substantially identical theory, to conclude that “Elimination of the burden of proof as to identification [of the manufacturer whose drug injured plaintiff] would impose a liability which would exceed absolute liability.” (Coggins, Industry-Wide Liability (1979) 13 Suffolk L.Rev. 980, 998, fn. omitted; see also, pp. 1000-1001.) In my view, the majority’s departure from traditional tort doctrine is unwise.
The applicable principles of causation are very well established. A leading torts scholar, Dean Prosser, has authoritatively put it this way: “An essential element of the plaintiff’s cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.” (Prosser, Torts (4th ed. 1971) § 41, p. 236, italics added.) With particular reference to the matter before us, and in the context of products liability, the requirement of a causation element has been recognized as equally fundamental. “It is clear that any holding that a producer, manufacturer, seller, or a person in a similar position, is liable for injury caused by a particular product, must necessarily be predicated upon proof that the product in question was one for whose condition the defendant was in some way responsible. Thus, for example, if recovery is sought from a manufacturer, it must be shown that he actually was the manufacturer of the product which caused the injury;...” (1 Hursh & Bailey, American Law of Products Liability (2d ed. 1974) § 1:41, p. 125, italics added; accord, Prosser, supra, § 103, at pp. 671-672; 2 Dooley, Modern Tort Law (1977) § 32.03, p. 243.) Indeed, an inability to prove this causal link between defendant’s conduct and plaintiffs injury has proven fatal in prior cases *615brought against manufacturers of DES by persons who were situated in positions identical to those of plaintiffs herein. (See McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 82 [150 Cal.Rptr. 730]; Gray v. United States (S.D.Tex. 1978) 445 F.Supp. 337, 338.)
The majority now expressly abandons the foregoing traditional requirement of some causal connection between defendants’ act and plaintiffs’ injury in the creation of its new modified industry-wide tort. Conceptually, the doctrine of absolute liability which heretofore in negligence law has substituted only for the requirement of a breach of defendant’s duty of care, under the majority’s hand now subsumes the additional necessity of a causal relationship.
According to the majority, in the present case plaintiffs have openly conceded that they are unable to identify the particular entity which manufactured the drug consumed by their mothers. In fact, plaintiffs have joined only five of the approximately two hundred drug companies which manufactured DES. Thus, the case constitutes far more than a mere factual variant upon the theme composed in Summers v. Tice (1948) 33 Cal.2d 80 [199 P.2d 1], wherein plaintiff joined as codefendants the only two persons who could have injured him. As the majority must acknowledge, our Summers rule applies only to cases in which “... it is proved that harm has been caused to the plaintiff by... one of [the named defendants], but there is uncertainty as to which one has caused it,... ” (Rest.2d Torts, § 433B, subd. (3).) In the present case, in stark contrast, it remains wholly speculative and conjectural whether any of the five named defendants actually caused plaintiffs’ injuries.
The fact that plaintiffs cannot tie defendants to the injury-producing drug does not trouble the majority for it declares that the Summers requirement of proof of actual causation by a named defendant is satisfied by a joinder of those defendants who have together manufactured “a substantial percentage” of the DES which has been marketed. Notably lacking from the majority’s expression of its new rule, unfortunately, is any definition or guidance as to what should constitute a “substantial” share of the relevant market. The issue is entirely open-ended and the answer, presumably, is anyone’s guess.
Much more significant, however, is the consequence of this unprecedented extension of liability. Recovery is permitted from a handful of defendants each of whom individually may account for a comparatively *616small share of the relevant market, so long as the aggregate business of those who have been sued is deemed “substantial.” In other words, a particular defendant may be held proportionately liable even though mathematically it is much more likely than not that it played no role whatever in causing plaintiffs’ injuries. Plaintiffs have strikingly capsulated their reasoning by insisting “.. . that while one manufacturer’s product may not have injured a particular plaintiff, we can assume that it injured a different plaintiff and all we are talking about is a mere matching of plaintiffs and defendants.” (Counsel’s letter (Oct. 16, 1979) p. 3.) In adopting the foregoing rationale the majority rejects over 100 years of tort law which required that before tort liability was imposed a “matching” of defendant’s conduct and plaintiff’s injury was absolutely essential. Furthermore, in bestowing on plaintiffs this new largess the majority sprinkles the rain of liability upon all the joined defendants alike—those who may be tortfeasors and those who may have had nothing at all to do with plaintiffs’ injury—and an added bonus is conferred. Plaintiffs are free to pick and choose their targets.
The “market share” thesis may be paraphrased. Plaintiffs have been hurt by someone who made DES. Because of the lapse of time no one can prove who made it. Perhaps it was not the named defendants who made it, but they did make some. Although DES was apparently safe at the time it was used, it was subsequently proven unsafe as to some daughters of some users. Plaintiffs have suffered injury and defendants are wealthy. There should be a remedy. Strict products liability is unavailable because the element of causation is lacking. Strike that requirement and label what remains “alternative” liability, “industry-wide” liability, or “market share” liability, proving thereby that if you hit the square peg hard and often enough the round holes will really become square, although you may splinter the board in the process.
The foregoing result is directly contrary to long established tort principles. Once again, in the words of Dean Prosser, the applicable rule is: “[Plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough, and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Prosser, supra, § 41, at p. 241, italics added, fns. *617omitted.) Under the majority’s new reasoning, however, a defendant is fair game if it happens to be engaged in a similar business and causation is possible, even though remote.
In passing, I note the majority’s dubious use of market share data. It is perfectly proper to use such information to assist in proving, circumstantially, that a particular defendant probably caused plaintiffs’ injuries. Circumstantial evidence may be used as a basis for proving the requisite probable causation. (Id., at p. 242.) The majority, however, authorizes the use of such evidence for an entirely different purpose, namely, to impose and allocate liability among multiple defendants only one of whom may have produced the drug which injured plaintiffs. Because this use of market share evidence does not implicate any particular defendant, I believe such data are entirely irrelevant and inadmissible, and that the majority errs in such use. In the absence of some statutory authority there is no legal basis for such use.
Although seeming to acknowledge that imposition of liability upon defendants who probably did not cause plaintiffs’ injuries is unfair, the majority justifies this inequity on the ground that “each manufacturer’s liability for an injury would be approximately equivalent to the damages caused by the DES it manufactured.” (Ante, p. 613.) In other words, because each defendant’s liability is proportionate to its market share, supposedly “each manufacturer’s liability would approximate its responsibility for the injuries caused by his own products.” (Ante, p. 612.) The majority dodges the “practical problems” thereby presented, choosing to describe them as “matters of proof.” However, the difficulties, in my view, are not so easily ducked, for they relate not to evidentiary matters but to the fundamental question of liability itself.
Additionally, it is readily apparent that “market share” liability will fall unevenly and disproportionately upon those manufacturers who are amenable to suit in California. On the assumption that no other state will adopt so radical a departure from traditional tort principles, it may be concluded that under the majority’s reasoning those defendants who are brought to trial in this state will bear effective joint responsibility for 100 percent of plaintiffs’ injuries despite the fact that their “substantial” aggregate market share may be considerably less. This undeniable fact forces the majority to concede that, “a defendant may be held liable for a somewhat different percentage of the damage than its share of the appropriate market would justify.” (Ante, pp. 612-613.) *618With due deference, I suggest that the complete unfairness of such a result in a case involving only five of two hundred manufacturers is readily manifest.
Furthermore, several other important policy considerations persuade me that the majority holding is both inequitable and improper. The injustice inherent in the majority’s new theory of liability is compounded by the fact that plaintiffs who use it are treated far more favorably than are the plaintiffs in routine tort actions. In most tort cases plaintiff knows the identity of the person who has caused his injuries. In such a case, plaintiff, of course, has no option to seek recovery from an entire industry or a “substantial” segment thereof, but in the usual instance can recover, if at all, only from the particular defendant causing injury. Such a defendant may or may not be either solvent or amenable to process. Plaintiff in the ordinary tort case must take a chance that defendant can be reached and can respond financially. On what principle should those plaintiffs who wholly fail to prove any causation, an essential element of the traditional tort cause of action, be rewarded by being offered both a wider selection of potential defendants and a greater opportunity for recovery?
The majority attempts to justify its new liability on the ground that defendants herein are “better able to bear the cost of injury resulting from the manufacture of a defective product.” (Ante, p. 611.) This “deep pocket” theory of liability, fastening liability on defendants presumably because they are rich, has understandable popular appeal and might be tolerable in a case disclosing substantially stronger evidence of causation than herein appears. But as a general proposition, a defendant’s wealth is an unreliable indicator of fault, and should play no part, at least consciously, in the legal analysis of the problem. In the absence of proof that a particular defendant caused or at least probably caused plaintiff’s injuries, a defendant’s ability to bear the cost thereof is no more pertinent to the underlying issue of liability than its “substantial” share of the relevant market. A system priding itself on “equal justice under law” does not flower when the liability as well as the damage aspect of a tort action is determined by a defendant’s wealth. The inevitable consequence of such a result is to create and perpetuate two rules of law—one applicable to wealthy defendants, and another standard pertaining to defendants who are poor or who have modest means. Moreover, considerable doubts have been expressed regarding the ability of the drug industry, and especially its smaller members, to bear the substantial economic costs (from both damage awards and *619high insurance premiums) inherent in imposing an industry-wide liability. (See Coggins, supra, 13 Suffolk L.Rev. at pp. 1003-1006, 1010-1011.)
An important and substantial countervailing public policy in defendants’ favor was very recently expressed in a similar DES case, McCreery v. Eli Lilly & Co., supra, 87 Cal.App.3d 77, 86-87. Although the majority herein impliedly rejects the appellate court’s holding, in my opinion pertinent language of the McCreery court, based upon the Restatement of Torts and bearing on the majority’s “market share” theory, is well worth repeating: “Application of the comments to the Restatement Second of Torts, section 402A, to this situation compels a rejection of the imposition of liability. As the comment states, ‘... It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again, with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.’ (Rest. 2d Torts, § 402A, com. k.) This section implicitly recognizes the social policy behind the development of new pharmaceutical preparations. As one commentator states, ‘[t]he social and economic benefits from mobilizing the industry’s resources in the war against disease and in reducing the costs of medical care are potentially enormous. The development of new drugs in the last three decades has already resulted in great social benefits. The potential gains from further advances remain large. To risk such gains is unwise. Our major objective should be to encourage a continued high level of industry investment in pharmaceutical R & D [research and development].’ (Schwartzman, The Expected Return from Pharmaceutical Research: Sources of New Drugs and the Profitability of R & D Investment (1975) p. 54.)” (McCreery v. Eli Lilly & Co., supra, 87 Cal.App.3d 77, 86-87, italics added; see also Coggins, supra, 13 Suffolk L.Rev. at p. 1004.)
In the present case the majority imposes liability more than 20 years after ingestion of drugs which at the time they were used, after careful *620testing, had the full approval of the United States Food and Drug Administration. It seems to me that liability in the manner created by the majority must inevitably inhibit, if not the research or development, at least the dissemination of new pharmaceutical drugs. Such a result, as explained by the Restatement, is wholly inconsistent with traditional tort theory.
I also suggest that imposition of so sweeping a liability may well prove to be extremely shortsighted from the standpoint of broad social policy. Who is to say whether, and at what time and in what form, the drug industry upon which the majority now fastens this blanket liability, may develop a miracle drug critical to the diagnosis, treatment, or, indeed, cure of the very disease in question? It is counterproductive to inflict civil damages upon all manufacturers for the side effects and medical complications which surface in the children of the users a generation after ingestion of the drugs, particularly when, at the time of their use, the drugs met every fair test and medical standard then available and applicable. Such a result requires of the pharmaceutical industry a foresight, prescience and anticipation far beyond the most exacting standards of the relevant scientific disciplines. In effect, the majority requires the pharmaceutical research laboratory to install a piece of new equipment—the psychic’s crystal ball.
I am not unmindful of the serious medical consequences of plaintiffs’ injuries, and the equally serious implications to the class which she purports to represent. In balancing the various policy considerations, however, I also observe that the incidence of vaginal cancer among “DES daughters” has been variously estimated at one-tenth of 1 percent to four-tenths of 1 percent. (13 Suffolk L.Rev., supra, p. 999, fn. 92.) These facts raise some penetrating questions. Ninety-nine plus percent of “DES daughters” have never developed cancer. Must a drug manufacturer to escape this blanket liability wait for a generation of testing before it may disseminate drugs similar to DES? If a drug has beneficial purposes for the majority of users but harmful side-effects are later revealed for a small fraction of consumers, will the manufacturer be absolutely liable? If adverse medical consequences, wholly unknown to the most careful and meticulous of present scientists, surface in two or three generations, will similar liability be imposed? In my opinion, common sense and reality combine to warn that a “market share” theory goes too far. Legally, it expects too much.
*621I believe that the scales of justice tip against imposition of this new liability because of the foregoing elements of unfairness to some defendants who may have had nothing whatever to do with causing any injury, the unwarranted preference created for this particular class of plaintiffs, the violence done to traditional tort principles by the drastic expansion of liability proposed, the injury threatened to the public interest in continued unrestricted basic medical research as stressed by the Restatement, and the other reasons heretofore expressed.
The majority’s decision effectively makes the entire drug industry (or at least its California members) an insurer of all injuries attributable to defective drugs of uncertain or unprovable origin, including those injuries manifesting themselves a generation later, and regardless of whether particular defendants had any part whatever in causing the claimed injury. Respectfully, I think this is unreasonable overreaction for the purpose of achieving what is perceived to be a socially satisfying result.
Finally, I am disturbed by the broad and ominous ramifications of the majority’s holding. The law review comment, which is the wellspring of the majority’s new theory, conceding the widespread consequences of industry-wide liability, openly acknowledges that “The DES cases are only the tip of an iceberg.” (Comment, DES and a Proposed Theory of Enterprise Liability (1978) 46 Fordham L.Rev. 963, 1007.) Although the pharmaceutical drug industry may be the first target of this new sanction, the majority’s reasoning has equally threatening application to many other areas of business and commercial activities.
Given the grave and sweeping economic, social, and medical effects of “market share” liability, the policy decision to introduce and define it should rest not with us, but with the Legislature which is currently considering not only major statutory reform of California product liability law in general, but the DES problem in particular. (See Sen. Bill No. 1392 (1979-1980 Reg. Sess.), which would establish and appropriate funds for the education, identification, and screening of persons exposed to DES, and would prohibit health care and hospital service plans from excluding or limiting coverage to persons exposed to DES.) An alternative proposal for administrative compensation, described as “a limited version of no-fault products liability” has been suggested by one commentator. (Coggins, supra, 13 Suffolk L.Rev. at pp. 1019-1021.) Compensation under such a plan would be awarded by an administra*622tive tribunal from funds collected “via a tax paid by all manufacturers.” (P. 1020, fn. omitted.) In any event, the problem invites a legislative rather than an attempted judicial solution.
I would affirm the judgments of dismissal.
Clark, J., and Manuel, J., concurred.
Respondents’ petitions for a rehearing were denied May 7, 1980. Tobriner, J., did not participate therein. White, J.,* participated therein. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petitions should be granted.
Assigned by the Chairperson of the Judicial Council.