Market Share Liability

Alternative Liability
Def: Allows party to impose liability on a defined group when it is unknown who actually caused harm
1. All Defendants must be before Court
2. All Defendants were negligent
3. May have to prove that d's are in better postion to determine who casued accident
Shifts burden of proof of causation to defendants
Concert of Action
Def: Defendants have parallel or imitative conduct where they relied on each other's testing & promotion efforts to P's detriment
1. tacit understanding/common plan to fail to give adequate warning
2. Must assist or encourage one another in inadequate testing/omissions
Shifts liability onto whole industry and may increase costs of accident avoidance
Enterprise Liability
Def: Industry practice of omitting a warning about product and failing to take adequate safety measures leads to unreasonable risk of harm
1. Industry wide cooperation on manufacture and design (not gov't sponsor) 2. Safety oversight/flaw with joint manufacture 3. Must be a small industry (5-10)
Because of joint design and manufacture, if one party guilty, burden of proof for causation shifts to all parties
Market Share Liability
B/T innocent plaintiff and manufacturer, manufacturer should bear costs because it is in a better position to do so and to identify defects in product.
1. Defendants must represent a substantial share of market
2. Actual maker is unknown
3. Good is interchangeable with others
4. Must have been on market at time of ingestion
Effect: Burden shifts to defendant to prove they could not have manufactured drug or else they pay damages in proportion to market share.Liability is only several (it does not pass on)
Flaw: Does not distinguish bad use from good use; places assumption of blame on richest party
Market Share Alternate Liability
Each defendant shares in some measure of culpabilit
1. Must show took substance
2. It caused injuries
3. Production and distro breached a legal duty to P.
Defendant must prove by preponderance of evidence that it was not one who made that one. If unable to do so, remain part of suit for equal market share to equal 100% unless otherwise proven.
Flaw; Requires a subsequent mini-trial
Risk Contribution Theory
Each defendant contributed to risk of injury to public and to plaintiff and must share in culpability.
1. Must show took substance and it cause injuries.
2. defendant manufactured type of substance ingested.
3. Breached duty to plaintiff
Only need to sue one drug company (no substantial market share requirement). If unable to prove innocence must pay all. If others, share
Flaw: May only be available on a limited scale
NY Theory
Def: Uses a national market share to corespond with over all culpability of each defendant to public at large. Liability is to be several
Req: May exculpate self by proving it did not market item for use in question
Effect: Liability is severalized