E market share liability modified alternative

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e. Market Share Liability (Modified Alternative Liability) - Cases where victim has been harmed by a 9
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product that was produced by a number of manufacturers to identical specifications, plaintiffs have received benefit of modified alternative liability theory. 1. Hymowitz v. Eli Lilly and Company – Ps injured by drugs DES, which their mothers took while they were in utero. There were many manufacturers, no way to tell which pills mothers took. i. Issue: whether a P may recover against a DES manufacturer when ID of the producer of the specific drug that caused injury is impossible. ii. Market Share Theory: b/c liability is based on overall risk produced, not causation in a single case, there should be no exculpation (free from liability) of a D who is a member of the market producing DES but appears not to have caused a particular P’s injury. iii. NY Court rejected NY market share; only fair way is to do it nationwide. 2. Black v. Abex Corp – lung cancer, sued 48 asbestos manufacturers, alleging death caused by occupation. Exposure to asbestos – claims on market share & alternative liability. i. Holding: P did not present evidence so a fact finder could determine the products he exposed to carried equivalent risks of harm and were fungible (not the same) ii. Products were not the same, therefore, the risk caused was not the same. a. Need a certain amount of the fibers in a product that will do enough harm. b. So if a product has 80%, the damage is much more than a product that has 20%. Because of the needed amount of asbestos varied for damage, the above example would not just be 4 times as dangerous. 3. Essential elements of market-share liability (per Prosser) i. Injury or illness by a fungible (capable of being interchanged) product made by all defendants ii. Injury or illness due to a design hazard iii. Inability to identify the specific manufacturer iv. Defendants represent a substantial share of the market f. Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm 1. Background: i. Because of the advanced scientific knowledge that we have, we can better predict future adverse consequence. ii. Cases where a doctor acted negligently, but it can be proven that the patient would have suffered harm even in good medical treatment poses serious problems in causal doctrines. 2. Lord v. Lovett – P broke neck, Ds negligently misdiagnosed her injury, caused her to lose opportunity for a substantially better recovery. i. Loss of Opportunity Doctrine – a P, whose injury or illness is aggravated by alleged negligence of a doctor, to recover for lost opportunity to obtain a better degree of recovery. ii. Rule : P does not receive damages for entire injury, just for lost opportunity; P may recover portion of damages actually attributable to the D’s negligence.
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Christopher Reinemann
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