 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Smith v. Cutter Biological Inc.11/29/1991
ferent circumstances at some point, we may find it appropriate to narrow the definition. For this case, however, we believe the national market is the more equitable consideration.
2. Identification and Joint and Several Liability
Courts differ on their requirements of an assertive effort on the part of plaintiffs to identify the actual manufacturer of the specific product which caused the harm. We take another approach to this concern. Whereas manufacturers here argue that appellant should have kept a log of which manufacturer's product he was using, we fail to see how such failure affects the viability of appellant's suit in view of our adoption of the theory of market-share liability.
Plaintiffs should use due diligence to join all manufacturers, but failure to do so is not a defense. Failure to do so may affect the percentage of recovery, discussed infra . However, manufacturers are permitted to implead other manufacturers. But, in this case, all manufacturers are joined, so the issue is not before us. However, we note in passing that the conditions of the Martin court, which would allow plaintiffs to initiate suit against only one defendant, and of Sindell , which would require plaintiffs to join a "substantial" number of defendants, are immaterial as long as plaintiffs realize their recovery will depend on joining as many manufacturers as they can; plaintiffs will endeavor to join all manufacturers.
We have already discussed our feeling that this action should not be subject to joint liability. We simply reiterate what other courts have said on this point, that "' he cornerstone of market share alternate liability is that if a defendant can establish its actual market share, it will not be liable under any circumstances for more than that percentage of the plaintiff's total injuries.'" Conley , 570 So. 2d at 285, quoting George v. Parke-Davis , 107 Wash. 2d at 595, 733 P.2d at 513. Therefore, we advocate several liability.
We define the rules of distribution as to market share for this case as was done in Martin , that is:
The defendants that are unable to exculpate themselves from potential liability are designated members of the plaintiffs' . . . market . . . . These defendants are initially presumed to have equal shares of the market and are liable for only the percentage of plaintiff's judgment that represents their presumptive share of the market. These defendants are entitled to rebut this presumption and thereby reduce their potential liability by establishing their respective market share of [Factor VIII] in the . . . market.
Martin , 102 Wash. 2d at 605, 689 P.2d at 383. As to several liability, we adopt the theory that a particular defendant is only liable for its market share. Defendants failing to establish their proportionate share of the market will be liable for the difference in the judgment to 100 percent of the market. However, should plaintiff fail to name all members of the market, the plaintiff will not recover 100 percent of the judgment if the named defendants prove an aggregate share of less than 100 percent.
3. Exculpatory Allowances
As a result of our determination that a national market is appropriate, as long as defendant is actually one of the producers of Factor VIII, there is little to justify exculpation of defendant. However, the exception would occur where defendant could prove that it had no product on the market at the time of the injury . As far as the defendants in this suit are concerned, it appears that none of them would be able to escape liability on that basis.
VII.
In conclusion, we will recognize the basic market-share
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|