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Black v. Abex Corporation12/22/1999
ket. The rationale underlying market share liability, as developed in Sindell, is that it did not matter which manufacturer's product the plaintiff's mother actually ingested; because all DES was chemically identical, the same harm would have occurred. Thus, any individual manufacturer's product would have caused the identical injury, and it was through mere fortuity that any one manufacturer did not produce the actual product ingested. Under these circumstances, viewing the overall DES market and all injuries caused thereby, it may be presumed each manufacturer's products will produce a percentage of those injuries roughly equivalent to its percentage of the total DES market. As the Sindell court recognized, " nder this approach, each manufacturer's liability would approximate its responsibility for the injuries caused by its own products." Sindell, 607 P.2d at 937.
[ ] In order to prevail on its market share claims, Black would therefore have to demonstrate that the asbestos-containing "friction products" her husband was exposed to carried equivalent degrees of risk. Black asserts this problem has been "disposed of" by the holding in Wheeler. Although Wheeler recognized that non-identical products may give rise to market share liability if they contain roughly equivalent quantities of a single type of asbestos fiber, the court did not hold that all asbestos-containing friction brake products in all cases will be considered fungible. In fact, the court in Wheeler indicated that such products must carry a nearly equivalent risk of harm to support market share liability. Wheeler, 11 Cal.Rptr.2d at 111-12. Furthermore, Wheeler was a reversal of a non-suit based upon an offer of proof made by the plaintiff. The court stressed its holding was narrow: the plaintiffs had not proven the elements of a market share case, but were merely being afforded the opportunity to prove it. Id. at 113. Clearly, Wheeler does not serve as evidence of fungibility and equivalent risks of harm of the products in this case.
[ ] Black points to uncontroverted evidence in this record that the four remaining defendants produced friction products which contained between seven and seventy-five percent asbestos fibers. This is a far greater range than the forty to sixty percent the Wheeler court considered "roughly comparable" for purposes of fungibility under Sindell. Wheeler, 11 Cal.Rptr.2d at 111. It is closer to the fifteen to one-hundred percent range which the Supreme Court of Ohio held precluded market share liability as a matter of law. See Goldman, 514 N.E.2d at 697, 701. It seems obvious that a product which contains seventy-five percent asbestos would create a greater risk of harm than one which contains only seven percent. See, e.g., Leng, 554 N.E.2d at 471 (toxicity of an asbestos product varies with percentage of asbestos fiber, and "products with high concentrations of asbestos fibers have a correspondingly high potential for inducing disease"). Absent introduction of expert evidence demonstrating that in spite of the differences the products would produce equivalent risks of harm, application of market share liability would be inappropriate.
[ ] Black failed to present competent, admissible evidence from which a fact finder could determine the "friction products" her husband was exposed to carried equivalent risks of harm and were fungible under Sindell. Accordingly, summary judgment was appropriate.
IV.
[ ] Black asserts the district court erred in dismissing her claims based upon alternative liability.
[ ] Alternative liability was first recognized by the Supreme Court of California in Summers v. Tice, 199 P.2d 1 (Cal. 1948). In Summers, the plaintiff was
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