Vanderbilt Law Review


Andrew B. Nace

First Page



Ten years ago, in Sindell v. Abbott Laboratories, the California Supreme Court created market share liability as a remedy for plaintiffs who had suffered injuries from prenatal exposure to diethystilbestrol (DES), but were unable to identify the specific manufacturer of the drug. The court fashioned the remedy because the available tort theories at the time-enterprise liability, alternate liability, and concert of action-were inadequate remedies for DES plaintiffs. The court's motivation was compensatory: redress innocent plaintiffs' injuries at the expense of collectively negligent defendants. Because of the victims' inability to show actual causation, the new doctrine sought to approximate a manufacturer's portion of liability for the actual injury suffered by a DES victim. Sindell apportioned the defendants' damages, therefore, based on their respective share of the relevant market from which the plaintiff's mother most likely had purchased the drug.

Several problems with the Sindell opinion, however, took years of litigation to resolve and caused other jurisdictions to reject Sindell in favor of their own market-based collective liability regimes.' Only five states other than California have adopted some version of market share liability, and each contains drawbacks. Virtually no state has applied market share liability to other areas of tort law mainly because the circumstances surrounding DES have resurfaced in few other products. Despite several calls for reform, no legislature has addressed directly any alternative solution to the problems posed by DES, which leaves to the courts the burden of compensation." In 1989 the highest courts of New York and New Jersey revisited market share liability in the DES context and for recovery for vaccine- related injuries. Hymowitz v. Eli Lilly & Co. allowed a market share cause of action for New York DES victims and instituted an innovative variation of the original Sindell doctrine. Shackil v. Lederle Laboratories" rejected market share liability for vaccine victims and endorsed the National Childhood Vaccine Injury Act as the most appropriate solution to the vaccine problem. Together, these two cases illustrate the continued vitality of market share liability in DES cases and the consistent rejection of the doctrine elsewhere in the torts system.

Part II of this Note provides a brief overview of DES. Part III dis- cusses the creation of market share liability in California. Part IV tracks the development of the doctrine in other jurisdictions within the context of DES litigation. Part V reviews the application of market share liability to other products liability cases. Part VI presents Hymowitz and analyzes the New York court's contribution to market share liability jurisprudence. Part VI also analyzes Shackil and the application of market share liability to vaccine injuries. Finally, Part VII reviews the problems posed by market share liability and proposes a legislative solution modeled after the National Childhood Vaccine In- jury Act. This Note concludes that market share liability is an appro- priate solution to the situation presented by DES; indeed, it is the only solution. The inherent limitations of the doctrine, however, and the burden it imposes on judicial resources suggest that the legislature can handle best the undertaking for which market share liability was designed and the required balance between compensation and societal concerns.