Market share liability

Market share liability is a legal doctrine unique to the law of the United States that allows plaintiffs injured by fungible products to apportion liability among the manufacturers according to their share of the market for the injurious product.^[1]

Origins

Market share liability was introduced in the California case Sindell v. Abbott Laboratories. In Sindell, the plaintiffs were injured by DES, a drug prescribed to prevent miscarriage. The mothers of the plaintiffs had taken DES while pregnant, and expert testimony showed this to be a proximate cause of reproductive tract cancers in the plaintiffs years later. The plaintiffs, however, could not ascertain which drug company distributed the DES taken by their mothers. The court responded by allowing the plaintiffs to apportion liability among the defendant drug companies according to their respective shares in the DES market.

Subsequent cases

Sindell required plaintiffs to join defendant drug companies in a single action, and this requirement was modified in the Wisconsin case Collins v. Eli Lilly Co. In Collins, the plaintiff could bring a cause of action against a single defendant, and the burden of proof would be shifted to the defendant to show that they did not produce the DES taken by the plaintiff's mother.^[2]

Efforts to expand the market share approach beyond DES cases have been mostly rejected. Courts have declined to expand the market-share approach to asbestos (Becker v. Baron Bros.), handguns (Hamilton v. Beretta), and lead paint (Santiago v. Sherwin Williams Co.). The market-share approach has been expanded to cases involving MTBE in the New York case In re Methyl Tertiary Butyl Ether.^[3][4][5]

References

1. ^ Henderson, J.A. et al. The Torts Process, Seventh Edition." Aspen Publishers, New York, NY: 2007, p. 125
2. ^ Henderson, p. 126
3. ^ Henderson, p. 126
4. ^ Gilberti, Frank J. Emerging Trends for Products Liability: Market Share Liability, Its History and Future, 15 Touro L. Rev. 719 (1999)
5. ^ Henderson, J.A., Twerski, A.D. Products Liability: Problems and Process, 131-136 (5th ed. 2004)