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Market-share liability: now prove you're innocent

Under the theory of market-share liability, dear to the heart of the plaintiff's bar, consumers who allege that they were injured by a product but cannot identify who made it would get to sue all manufacturers and collect from each in proportion to their share of the market. After early experiments, mostly in the realm of generically equivalent pharmaceuticals, courts have been reluctant to extend the idea any further (see, for example, Apr. 27-29, 2001, on the failure of attempts to assign market-share liability to gun makers). But hope springs eternal, and some New Jersey lawyers are now hoping to get market-share liability accepted in that state in the case of a postal worker banged on the head by the metal door of a bulk letter carrier -- she can't remember which maker's. "Essentially, we would be shifting the burden from the plaintiff to the defendants," said attorney Andrew Watson of the law firm representing her. "Any company that could prove its products had nothing to do with the accident obviously wouldn't have to pay anything. Any company that could not prove its innocence would have to participate in any verdict that was awarded," he said. Hey, it seems fair to him. (Andrew D. Smith, "Who's responsible?", Trenton Times, Sept. 28).

[cross-posted from Overlawyered, where it ran Oct. 6, 2003]

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.