What makes New York’s approach radical is that it uses national market share, and bars any maker from proving that it did not make the DES that injured the plaintiff. Suppose, for example, that Acme Drug Company proves that it never sold DES in New York, where the plaintiff’s mother bought the drug. Or suppose it proves that its DES pills were blue, and the plaintiff’s mother testifies that the pills she took were red. Under Hymowitz, Acme pays in proportion to its national market share, even though it conclusively establishes that it did not cause the plaintiff’s injury:
It is merely a windfall for a producer to escape liability solely because it manufactured a more identifiable pill, or sold only to certain drug stores. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here.
541 N.Y.S.2d at 950. This quotation from Hymowitz is enormously ironic. Common law courts for centuries have premised liability on causing the plaintiff’s harm. Yet the Hymowitz court fairly casually concludes that it is “merely a windfall” to allow the defendant to avoid liability by showing it did no harm to the plaintiff!
Market share liability is a controversial doctrine. Many courts have refused to adopt any variant on Sindell. Rhode Island, for example, rejected it in a one-page rescript opinion. “We are not willing to adopt the market-share doctrine which has been accepted in the State of California in Sindell v. Abbott Laboratories, Inc…. We are of the opinion that the establishment of liability requires the identification of the specific defendant responsible for the injury.” Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I. 1991). See also Mulcalhy v. Eli Lilly & Co., 386 N.W.2d 67, 75 (Iowa 1986) (“awarding damages to an admittedly innocent party by means of a court-constructed device that places liability on manufacturers who were not proved to have caused the injury involves social engineering more appropriately within the legislative domain”).