Friday, June 18, 2010

Lead paint, market share liability and due process

As you probably know, "market share liability" is a concept created to help a plaintiff establish the element of cause in fact when the plaintiff can't truly identify the specific person or entity who caused the injury. Originally, it was created to allow plaintiffs to recover in cases where the plaintiff joined as defendants the manufacturers of products that were chemically identical. For many years, the concept was used only in cases involving the drug "DES." That changed in Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005), one of only a couple of cases to recognize liability for injuries related to lead paint. Now, a new decision by the Federal District Court for the Eastern District of Wisconsin challenges the use of the market share liability doctrine in cases other than those for which it was originally created holding that the expansion of state common-law tort liability can be so overreaching and so contrary to settled legal expectations as to violate a defendant's right to due process. See Gibson v. American Cyanamid, Inc., (E.D. Wisc. June 15, 2010) (available here). In other words, Gibson declares unconstitutional the expansion of market share liability to non-fungible products. For a long comment on this case, go here.

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