MARKET SHARE TORT LIABILITY

Author
, PhD in Law, Associate professor, Kharkiv, Pushinska, 77

In heading

 Economic analysis of law;

Signed print

 30.06.2020

Issues number

 2020 - № 3 (42)

Page

 49-63

Type of articles

 Scientific article

Code UDK

 347.51

ISSN print

 2411-5584

Abstract

 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.

Keywords

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

Reviewer

External reviewer

Article in PDF

 49-63

Bibliography

 1. Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980). Retrieved from http://online.ceb.com/calcases/C3/26C3d588.htm.
2. Donska, L. D. (2006). Prychynnyi zviazok u tsyvilnomu pravi Ukrainy [Causal connection in civil law of Ukraine]. (Candidate’s thesis). Odesa [in Ukrainian].
3. Bolotova, H. D. (2015). Do pytannia prychynnoho zviazku u hospodarskykh sporakh pro vidshkoduvannia zbytkiv [On the issue of causal connection in commercial disputes about damages]. Ekonomika ta parvo – Economics and Law, 2 (41), 53–56 [in Ukrainian].
4. Vavzhenchuk, S., & Dovhopol, V. (2011). Mezhi rozuminnia yurydychnoi pryrody prychynnoho zviazku v tsyvilnomu pravi [The boundaries of understanding the legal nature of causation in civil law]. Pidpryiemnytstvo, hospodarstvo i pravo – Entrepreneurship, economy and law, 2, 13–15 [in Ukrainian].
5. Hapalo, S. Yu. (2008). Prychynnyi zviazok mizh protypravnoiu povedinkoiu porushnyka hospodarskoho zoboviazannia ta zbytkamy yak pidstava hospodarsko-pravovoi vidpovidalnosti [Causal link between the wrongful conduct of the wrongdoer and damages as a basis of economic legal liability]. Universytetski naukovi zapysky – University Scientific Notes, 1, 132–137 [in Ukrainian].
6. Kulitska, S. V. (2016). Osoblyvosti prychynnoho zviazku u zoboviazanniakh po vidshkoduvanniu (kompensatsii) shkody, zapodiianoi vnaslidok protypravnoi diialnosti / bezdiialnosti orhaniv sudovoi vlady [Peculiarities of causal connection in obligations for compensation (compensation) for damage caused as a result of illegal activity / inaction of judicial authorities]. Visnyk Odeskoho natsionalnoho universytetu. Seriia: Pravoznavstvo – Bulletin of the Odessa National University. Series: Jurisprudence, vol. 21, issue 1 (28) [in Ukrainian].
7. Pendiaha, A. L. (2011). Znachennia prychynnoho zviazku yak pidstavy tsyvilno-pravovoi vidpovidalnosti [The meaning of causation as the basis of civil liability]. Ekonomika, finansy, pravo – Economics, finance, law, 4, 34–36 [in Ukrainian].
8. Prymak, V. (2014). Prychynno-naslidkovyi zviazok yak umova vidshkoduvannia moralnoi shkody kriz pryzmu vymoh spravedlyvosti, rozumnosti y dobrosovisnosti [Causal connection as a precondition for the compensation of moral harm through the prism of the requirements equity, good faith and reasonablity]. Yurydychna Ukraina – Legal Ukraine, 1, 25–30 [in Ukrainian].
9. Sheiner, N. (1978). DES and a Proposed Theory of Enterprise Liability. Fordham Law Review, 46(5), 963–1007.
10. Koperski, B. J. (1981). Market Share Liability for DES (Diethylstilbestrol) Injury: A New High Water Mark in Tort Law: Sindell v. Abbott Laboratories. Nebraska Law Review, 60 (2), 432–449.
11. Market Share Liability: An Answer to the DES Causation Problem. (1981). Harvard Law Review, 94(3), 668–680.
12. Morgan, E. (1983). Market Share Liability for Injurious Products: A Comment on Sindell. University of Toronto Faculty of Law Review, 41, 52–62.
13. Market Share Liability Adopted to Overcome Defendant Identification Requirement in DES Litigation, Sindell v. Abbott Laboratories. (1981). Washington University Law Quarterly, 59 (2), 571–584.
14. Redemann, B. B. (1980). Manufacturers’ Liability Based on a Market Share Theory: Sindell v. Abbott Laboratories. Tulsa Law Journal, 16 (2), 286–316.
15. Sheffet, M. J. (1983). Market Share Liability: A New Doctrine of Causation in Product Liability. Journal of Marketing, 47 (1), 35–43.
16. Taylor, N. D. (1981). California Expands Tort Liability under the Novel Market Share Theory: Sindell v. Abbott Laboratories. Pepperdine Law Review, 8, 1011–1043.
17. Madden, M. S., & Holian, J. (2007). Defendant Indeterminacy: New Wine into Old Skins. Louisiana Law Review, 67 (3), 785–822.
18. Marshack, R. A. (1982). Sindell v. Abbott Laboratories: Is Market Share Liability the Best Remedy to the DES Controversy. California Western Law Review, 18, 143–177.
19. Sheiner, N. (1978). DES and a Proposed Theory of Enterprise Liability. Fordham Law Review, 46 (5), 963–1007.
20. Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). Retrieved from http://online.ceb.com/calcases/C2/33C2d80.htm.
21. Karnaukh, B. (2020). Neziasovna prychynnist: dylema dvokh myslyvtsiv. (Uncertain causation: two hunters dilemma). Problemy zakonnosti - Problems of Legality, 149, 49–61 [in Ukrainian].
22. Hall v. E. I. Du Pont de Nemours & Co., Inc., (E.D.N.Y. 1972). 345 F. Supp. 353. Retrieved from https://law.justia.com/cases/federal/district-courts/FSupp/345/353/1891705/.
23. Kors, R. A. (1981). Refining Market Share Liability: Sindell v. Abbott Laboratories. Stanford Law Review, 33, 937-950.
24. Miller, K. C., & Hancock, J. D. (1985). Perspectives on Market Share Liability: Time for a Reassessment. West Virginia Law Review, 88, 81–112.

Code DOI

 10.31359/2411-5584-2020-42-3-49

30.06.2020