Black v. Abex Corporation12/22/1999
ashioned a new form of liability which relaxed traditional causation requirements, allowing a plaintiff to recover upon showing that she could not identify the specific manufacturer of the DES which caused her injury, that the defendants produced DES from an identical formula, and that the defendants manufactured a "substantial share" of the DES the plaintiff's mother might have taken. Id. at 936-37. The court held each defendant would be liable for a proportionate share of the judgment based upon its share of the relevant market, unless it demonstrated it could not have made the product which caused the plaintiff's injury. Id. at 937.
[ ] The essential elements of market share liability are summarized in W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 103, at 714 (5th ed. 1984):
The requirements for market-share liability seem to be: (1) injury or illness occasioned by a fungible product (identical-type product) made by all of the defendants joined in the lawsuit; (2) injury or illness due to a design hazard, with each having been found to have sold the same type product in a manner that made it unreasonably dangerous; (3) inability to identify the specific manufacturer of the product or products that brought about the plaintiff's injury or illness; and (4) joinder of enough of the manufacturers of the fungible or identical product to represent a substantial share of the market.
[ ] The overwhelming majority of courts which have addressed the issue have held market share liability is inappropriate in cases alleging injury from exposure to asbestos. See, e.g., Robertson v. Allied Signal, Inc., 914 F.2d 360, 380 (3d Cir. 1990); White v. Celotex Corp., 907 F.2d 104, 106 (9th Cir. 1990); Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1483 (11th Cir. 1985); In re Asbestos Litigation, 509 A.2d 1116, 1118 (Del. Super. Ct. 1986); Celotex Corp. v. Copeland, 471 So.2d 533, 537-39 (Fla. 1985); Leng v. Celotex Corp., 554 N.E.2d 468, 470-71 (Ill. App. Ct. 1990); Sholtis v. American Cyanamid Co., 568 A.2d 1196, 1203-05 (N.J. Super. Ct. App. Div. 1989); Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691, 700-01 (Ohio 1987); Case v. Fibreboard Corp., 743 P.2d 1062, 1064-67 (Okla. 1987); Gaulding v. Celotex Corp., 772 S.W.2d 66, 70-71 (Tex. 1989); see also Prosser, supra, at § 103; 1 Louis R. Frumer & Melvin I. Friedman, Products Liability § 3.06 (1999); L. Joel Chastain, Note, Market Share Liability and Asbestos Litigation: No Causation, No Cause, 37 Mercer L. Rev. 1115, 1116-17, 1134-36 (1986); Frank J. Giliberti, Emerging Trends for Products Liability: Market Share Liability, Its History and Future, 15 Touro L. Rev. 719, 726-27 (1999); Andrew B. Nace, Note, Market Share Liability: A Current Assessment of a Decade-Old Doctrine, 44 Vand. L. Rev. 395, 414-15 (1991). The most oft-cited rationale is that asbestos is not a fungible product, as evidenced by the wide variety of asbestos-containing products, the varying types and amounts of asbestos in those products, and the varying degrees of risk posed by those products. See White, 907 F.2d at 106; Blackston, 764 F.2d at 1483; Copeland, 471 So.2d at 537-38; Leng, 554 N.E.2d at 470-71; Goldman, 514 N.E.2d at 700-01; Case, 743 P.2d at 1065-66; Sholtis, 568 A.2d at 1204 n.10; Chastain, supra, 37 Mercer L. Rev. at 1138; Nace, supra, 44 Vand. L. Rev. at 415. The leading treatise recognizes:
t can reasonably be argued that it would not be appropriate to apply this fungible product concept to asbestos-containing products because they are by no means identical since they contain widely varying amounts of asbestos.
Prosser, supra, § 103, at 714.
[ ] Black essentially concede
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