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Cok Kinzler PLLP

Understanding the concept of market share liability

Most in Bozeman may assume that product liability cases generally play out as follows: One is injured by a product, then sues that product’s manufacturer. Yet what if one cannot identify a dangerous product’s exact manufacturer? Is he or she then left without any legal recourse?

Not if his or her case meets the standard of applying market share liability. The Columbia Journal of Law and Social Problems defines market share liability as a tort theory that allows plaintiffs to recover damages for injuries caused by fungible, mass-marketed products even though they are unable to identify the responsible manufacturer. In this instance, any responsibility for a plaintiffs injuries is apportioned to a defendant (or various defendants) according to market share. An example would be a person injured after taking a drug. Several different companies each offer a version of that drug. If the person cannot discover which company manufactured the exact drug he or she took, the court could choose to assign liability to all of them according to each company’s market share.

The application of market share liability is typically determined according to criteria established by the Restatement (Third) of Torts. These criteria (as shared by The National Law Journal) are:

  •          The generic nature of a product.
  •          The latency period of the harm it may cause.
  •          The inability of victims to determine which product or manufacturer caused the harm.
  •          The established link between the product and the harm suffered.
  •          The absence of other factors which could have caused the harm.
  •          The availability of market share data to apportion liability.

To cite market share liability, a product must be classified as “fungible,” or mutually interchangeable. In the aforementioned example, the drug would be considered fungible provided that each version shared the same chemical identity.


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