Document e1mq3pm0J4bRpOXwv3Xq3jg7y

V 1. panies that they "neither insure nor receive a gives the following illustration: premium from." Kroll, supra, at 196. At the same Assume a plaintiff joins Dl, who enjoyed 80% of page of his article, Mr. Kroll further addresses the the relevant market, and D2, who enjoyed 10%. problems which pharmaceutical manufacturers Having met her burden ofjoining defendants with having large self-insured retentions will face. a "substantial market share," plaintiffs action DES cases may represent only the "tip of the would proceed despite the lack of proof of causa 1 iceberg" with regard to cases in which a large tion. Assume further that as the action proceeds, number of plaintiffs -- unable to recover in a Dl is able to demonstrate it did not produce the traditional products liability case because they injury-causing product, and is accordingly dis could not identify the specific manufacturer -- missed from the action. would be able to recover under market share liabil- May plaintiff, having initially satisfied her bur den, continue the action against D2? Does plain When a manufacturer prices a tiffs burden of joining defendants with a "sub stantial" aggregate share of the market continue product, it may now have to throughout the litigation, thereby permitting D2 to move to dismiss the action? consider, the liability it may Given the vast potential for litigation in which plaintiffs may advocate adoption of market share 4 incur for another liability and the adverse effects the decision may manufacturer's "defective'' product. have on other industries, the words of Justice Richardson are especially appropriate: Respectfully, I think this is (an] unreasonable overreaction for the purpose of achieving what is perceived to be a socially satisfying result. 607 ity. Persons alleging injuries caused by food addi P2d at 943 tives, for example, would have a greater chance of A legislative effort has been made in California recovery under the new theory. The majority opin to reverse the "unreasonable overreaction" of the ion fails to define what constitutes a "fungible Sindell majority opinion. Assembly Bill 3344 would product" -- thus leaving the area's scope open to (among other things): preclude liability in a pro speculation. ducts liability case, unless the plaintiff proves by a In espousing its new theory of "market share preponderance of the evidence that the product liability," the Sindell court essentially has revised seller's own product was a proximate cause of the the requirements of a products liability action, injury, death or damage; this limitation would while leaving unanswered all of the practical prob apply to all pending claims and actions. Although lems concerning market share determination. Mar unlikely to pass this session, the bill is likely to be i ket share liability is to be determined by the re-introduced in the next session of the legislature. percentage of DES sold by each manufacturer for As a sidelight to an analysis ofSindell, the reader * the purpose of preventing miscarriages. What the may wish to consult the article beginning on page 27 majority ignores is that DES was provided for a of this issue. The author, examining another recent number, of uses, and it would be most difficult to decision, analyzes another court's changing of the ascertain what proportion was used as a miscar rules of products liability after a manufacturer has riage preventive. The court fails to discuss whether had its only turn at bat, "boxing a product seller into "relevant market" is restricted geographically to a 'no-win' position." The root problem is that: California -- the state in which DES was adminis a product which was not "defective" in the legal tered to the plaintiffs mother -- or if there are any sense when it was designed and manufactured can time restrictions, such as relevant market prior to become "defective" in the same sense many years the plaintiffs birth. later without any actual change in the product. In an article entitled, Market Share Liability This occurs because a court has modified rules of Under California's Sindell DES Decision, National products liability law between the time the pro Law J at 26 (May 19, 1980), Sheila L. Bimbaum duct left the control of the manufacturer and the commented on the court's failure to address any of time the product is subjected to judicial scrutiny. the ramifications of the procedural issues that may Kircher, Products Liability - Judicial "Catch 22", arise as a result of applying this new tort theory. She infra at page 28. A i __ 22 OCTOBER 1980 A FOR THE DEFENSE 8002 0621 PRODUCED BY FORD