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Thomas v. Mallett7/15/2005
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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. 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. Clearly, Wheeler does not serve as evidence of fungibility and equivalent risks of harm of the products in this case.
Black v. Abex Corp., 603 N.W.2d 182, 190 (N.D. 1999)(internal citations omitted).
Notably, the Wheeler court reaffirmed its prior decision in Mullen, 246 Cal. Rptr. 32, in which the court refused to apply the market share theory of liability to a wide range of asbestos products manufactured by the defendants because " e noted there that asbestos, unlike DES, was not a single product but merely a generic name for an ingredient in a variety of products each of which posed a different risk of harm." Wheeler, 11 Cal. Rptr. 2d at 111. The Wheeler court distinguished Mullen because the brake pads at issue were comprised of a "single type of asbestos fiber, . . . and the amount of asbestos by weight in the pads varied within a limited range." Id. at 111.
In this case, there was no single type of white lead carbonate. Each formulation had different chemical compositions, contained different amounts of lead, and differed in potential toxicity. Furthermore, the amount of white lead carbonate contained in a particular lead paint varied greatly from mixture to mixture. As such, the rationale of Mullen, which focused on asbestos in general, is much more analogous to this case than the rationale of Wheeler, which focused on a particular asbestos fiber in a limited concentration range.
In Black, the North Dakota Supreme Court rejected market share liability in a suit against manufacturers of asbestos-containing products precisely because the products, although all containing asbestos, did not present equivalent risks of harm. Black, 603 N.W.2d at 189. "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." Id. (emphasis added). The court further stated:
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.
Id. at 190. The court then noted that the asbestos-containing "friction products" that the defendants produced contained between seven and seventy-five percent asbestos fibers. Id. "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." Id. at 191. Thus, the Black court held that the market share theory of liability did not apply because the defendants' products did not carry equivalent degrees of risk and were not fungible. Id.
Similarly, in Sanderson v. International Flavors and Fragrances, Inc., 950 F. Supp 981, 991 (C.D
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