, assistant, Kharkiv, Pushinska, 77

In heading

Economic analysis of law;

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Issues number

2020 - № 3 (42)



Type of articles

Scientific article

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Problem setting. Ukrainian tort law is largely based on doctrines developed in the middle of 20th century. However, new economic reality calls for new approaches in law. Especially taking into account the onset of the wide conversation over the recodification of civil law in Ukraine. In order for the new codification to be sustainable for a long time it should be able to tackle the issues that might appear in the future. Studying foreign caselaw is of particular importance for the purpose of identification of such future sharp issues.
Recent research and publications analysis. In Ukraine in the domain of civil law not much attention is payed to the issue of causation. That is due to the long-standing tradition according to which it is deemed that causation is sufficiently analyzed in criminal law and thus not much (if anything) can be added by civil law scholars. This approach is based on the implied fallacy that causation in civil law is completely the same as causation in criminal law.
Paper objective. The main objective of the paper is to study the justification of market share liability as enunciated by the Supreme Court of California in Sindell v. Abbott Laboratories as well as to explain the distributive effects thereof.
Paper main body. The plaintiff in Sindell v. Abbott Laboratories invoked three doctrines to support her clime: alternative liability, concert of action and industry-wide liability (also known as enterprise liability). The Court rejected all of them and fashioned a brand new one, according to which whenever it is impossible to identify the brand of the drug ingested through no fault of the plaintiff, each producer of the defective drug has to be liable in proportion to his share on the market of the drug. Moreover, the plaintiff does not have to bring to court all the producers. It is enough to sue the producers that in sum constitute substantial share of the market.
Conclusions of the research. In theory application of market share liability eventually yields the same distributive effects as would have been yielded by regular rules given the perfect information (as to the identity of the producer): the total burden of liability borne by a particular producer equals the damage caused by his product. However, some distortion may be caused due to the rule that plaintiff has to sue producers constituting substantial share of the market. This rule may be treated in two ways: first, defendants brought to court have to compensate plaintiff for the part of his damage in proportion to the overall market share of the defendants; second, defendants brought to court have to compensate plaintiff for the whole amount of his damage (thus sharing between themselves also the portion that should have been compensated by producers not brought to court). The former interpretation should prevail, since in the latter case the disproportion appears between total burden of liability borne by a particular producer and the damage caused by his product.
Short Abstract for an article
Аbstract. The article addresses the theory of market share tort liability, enunciated by the Supreme Court of California in Sindell v. Abbott Laboratories. Conditions and distributive effects of the theory’s application are analyzed. Distributive effects of the theory’s application are compared with distributive effects of regular rules of tort law being applied in a hypothetical case of complete knowledge.


causation; uncertain causation; alternative liability; market share liability; diethylstilbestrol.


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