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Black v. Abex Corporation12/22/1999
ving fungibility of the defendants' products which she claims caused her husband's injuries. Thus, if the evidence in the record did not establish a genuine issue of material fact on fungibility, summary judgment was appropriate.
C
[ ] This Court has never addressed whether market share liability is recognized under North Dakota tort law. Other courts faced with the question have reached varying conclusions on the general availability of this novel remedy. See 1 Louis R. Frumer & Melvin I. Friedman, Products Liability § 3.06 (1999); Richard E. Kaye, Annotation, "Concert of Activity," "Alternate Liability," "Enterprise Liability," or Similar Theory as Basis for Imposing Liability Upon One or More Manufacturers of Defective Uniform Product, in Absence of Identification of Manufacturer or Precise Unit or Batch Causing Injury , 63 A.L.R.5th 195 at § 4 (1998), and cases collected therein. We find it unnecessary to resolve this general issue because we conclude, assuming market share liability were recognized in this state, summary judgment was still appropriate based upon the record in this case.
[ ] The dispositive question presented is whether Black has raised a genuine issue of material fact on the issue of fungibility. Market share liability is premised upon the fact that the defendants have produced identical (or virtually identical) defective products which carry equivalent risks of harm. Accordingly, under the market share theory, it is considered equitable to apportion liability based upon the percentage of products each defendant contributed to the entire relevant market.
[ ] This reasoning hinges, however, upon each defendant's product carrying an equal degree of risk. As the Supreme Court of Oklahoma explained in Case, 743 P.2d at 1066:
In the Sindell case, and those following it, it was determined that public policy considerations supporting recovery in favor of an innocent plaintiff against negligent defendants would allow the application of a theory of liability which shifted the burden of proof of causation from plaintiff to defendants. However, as previously stated, that theory was crafted in a situation where each potential defendant shared responsibility for producing a product which carried with it a singular risk factor. The theory further provided that each potential defendant's liability would be proportional to that defendant's contribution of risk to the market in which the plaintiff was injured. This situation thus provided a balance between the rights of the defendants and the rights of the plaintiffs. A balance being achieved, public policy considerations were sufficient to justify the application of the market share theory of liability.
Similar reasoning was employed by the Supreme Court of Ohio in Goldman, 514 N.E.2d at 701:
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.
Numerous other courts have stressed the importance of a singular risk factor in market share cases. See, e.g., King v. Cutter Laboratories, 714 So.2d 351, 354-55 (Fla. 1998); Leng, 554 N.E.2d at 471; Becker v. Baron Bros., 649 A.2d 613, 620-21 (N.J. 1994).
[ ] Unless the plaintiff can demonstrate that the defendants' products created a "singular risk factor," the balance between the rights of plaintiffs and defendants evaporates and it is no longer fair nor equitable to base liability upon each defendant's share of the relevant mar
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