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Vanderbilt Law Review

First Page

1623

Abstract

This Article examines the market share liability theory to determine whether it can achieve the objective of treating both parties fairly. Although courts in the past have relaxed the plaintiff's burden of proof on the element of causation in fact, the question remains whether this relaxation is appropriate in DES cases, and,if so, whether market share liability is the most equitable method of implementing the relaxation. This Article suggests that the market share liability theory contains several serious flaws that render it unsuitable as a means for allowing plaintiffs to recover in DES cases. The Article criticizes the theory for diluting the elements of the alternative liability doctrine to the extent that the market share theory fails to meet the alternative liability theory's primary objective of allocating responsibility according to each defendant's share of the fault." Moreover, the additional objective of market share liability--to implement the modern notions of risk spreading and deterrence that underlie the law of products liability--is not achieved through the market share theory because the theory's requirements were derived from alternative liability, which was designed to accomplish a different objective. The Article further criticizes the theory because it permits courts and juries to resolve cases without adequate evidence.

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