Write This Down: A Model Market-Share Liability Statute

by Logan L. Page

Click here for a PDF file of this article

Abstract

The 1980s featured a remarkable series of lawsuits: the DES cases. The women who brought these cases had been harmed by a drug—DES—that their mothers had taken while the future plaintiffs were in utero. Hundreds of companies manufactured DES, each unit of DES sold was chemically identical, and the harmed women were generally unable to identify the manufacturer who had filled their mothers’ prescriptions. Many of the plaintiffs could not prove causation as to a specific manufacturer and so could not bring traditional tort suits.

To provide relief, some courts forged ahead with a new tort theory: market-share liability. Under this theory, plaintiffs who were harmed by a fungible product and unable to identify the manufacturer who produced the unit that harmed them could sue all manufacturers of the product and collect from each of them according to their market share. But not every court recognized this new theory. And among the courts that did, disagreement emerged as to doctrinal determinations and mechanical considerations.

This Note is the first survey of both the legal and practical questions surrounding claims based on market-share liability, from whether a prospective plaintiff qualifies for such a cause of action to determining the relevant market to pleading requirements. It asserts that market-share liability furthers the purposes of tort and products-liability law, critiques existing state statutory schemes, and proposes a model statute for state legislatures to consider.

Write This Down: A Model Market-Share Liability Statute

by Logan L. Page

Click here for a PDF file of this article

Abstract

The 1980s featured a remarkable series of lawsuits: the DES cases. The women who brought these cases had been harmed by a drug—DES—that their mothers had taken while the future plaintiffs were in utero. Hundreds of companies manufactured DES, each unit of DES sold was chemically identical, and the harmed women were generally unable to identify the manufacturer who had filled their mothers’ prescriptions. Many of the plaintiffs could not prove causation as to a specific manufacturer and so could not bring traditional tort suits.

To provide relief, some courts forged ahead with a new tort theory: market-share liability. Under this theory, plaintiffs who were harmed by a fungible product and unable to identify the manufacturer who produced the unit that harmed them could sue all manufacturers of the product and collect from each of them according to their market share. But not every court recognized this new theory. And among the courts that did, disagreement emerged as to doctrinal determinations and mechanical considerations.

This Note is the first survey of both the legal and practical questions surrounding claims based on market-share liability, from whether a prospective plaintiff qualifies for such a cause of action to determining the relevant market to pleading requirements. It asserts that market-share liability furthers the purposes of tort and products-liability law, critiques existing state statutory schemes, and proposes a model statute for state legislatures to consider.