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Risks Reconsidered: Complex Issues in Establishing Factual Cause

The examples that follow illustrate the application-and some of the problems-of the market share approach to actual causation. The explanations begin on p. 224.


Share, or Share Alike?

1.   Sindell sues nine DES makers in California. At trial, she introduces some proof that the drug was that of Acme Drug Company. In the alternative, she relies on the market share theory. If the jury concludes that Acme made the drug her mother took, what should it do?

2.   Sindell sues four DES makers in California. At trial, she establishes that all defendants were negligent for marketing DES, and that their individual market shares were as follows: Dl 10 percent, D2 20 percent, D3 30 percent. D4 proves that it sold no DES in the relevant market at the time. The jury finds Sindell’s damages to be $100,000. Under the Sindell approach, how much should each defendant pay?

3.   On the facts of Example 2, what happens if D2 is unable to pay its share of the total liability?

4.   You represent Sindell, and have decided to proceed on a market share theory in California. What problems would you foresee in proving the market shares of the various defendants?

Absent Tortfeasors

5.   Assume that Sindell’s mother bought DES in New York, and Sindell sues there after Hymowitz. One defendant, the Acme Drug Company, establishes that it never sold DES in New York, but that it did have a 10 percent share of the national market for DES at the relevant time. Is it liable?

6.   Assume that Sindell sues in New York after Hymowitz. Assume that the Acme Drug Company proves that it did not sell DES at all at the time that Sindell’s mother took the drug, but the plaintiff establishes that it did have a 20 percent share of the DES market two years later. How should its liability be determined under Hymowitz?

7.   Assume that Sindell sues one DES maker, the Acme Drug Company, in Washington State (Washington’s approach to market share liability is described on p. 213). Acme brings three others, Beta, Gamma, and Phi Corporations, into the suit. Phi establishes that it never sold DES in the relevant market. Beta establishes that its share of the market was 6 percent. The other defendants offer no evidence on their market shares. Under the approach adopted by the Washington Supreme Court in Martin, what would each defendant owe?

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