In this issue:
- Lead Paint: A New Frontier for the Market Share Theory of Liability?
- Update on the Admissibility of Expert Testimony in Federal Courts
- Testimony by Treating Physicians is Limited Unless Retained or Disclosed as Experts
Lead Paint: A New Frontier for the Market Share Theory of Liability?
A trial court in upstate New York recently extended the market share theory of liability to cases involving exposure to white lead pigment. In Brenner v. American Cyanamid Company, N.Y. L.J., Feb. 3, 1999, at 31 (N.Y. Sup. Ct. Feb. 2, 1999), the trial court addressed three theories of alternative liability that do not require a plaintiff to identify the exact defendant whose product caused plaintiff's injury - market share, alternative liability, and enterprise liability. The court granted summary judgment on the alternative and enterprise theories of liability, but denied summary judgment to white lead pigment manufacturers on plaintiff's cause of action for liability based on the market share theory.
The California Supreme Court created the market share liability theory in Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980), a DES exposure case. The Sindell court found "it to be reasonable in the present context to measure the likelihood that any of the defendants supplied the product which allegedly injured the plaintiff by the percentage which the DES sold by each of them . . . bears to the entire production." Sindell, 26 Cal. 3d at 611. The New York Court of Appeals adopted Sindell in another DES case, but in doing so, emphasized the unique nature of DES cases. See Hymowitz v. Eli Lilly and Co., 539 N.E.2d 1069, 1075 (N.Y. 1989).
Relying on Hymowitz, the Brenner court declared that the facts of the case created a need for "judicial action . . . to overcome the inordinately difficult problems of proof caused by contemporary products and marketing techniques." The Brenner court determined that (1) it was virtually impossible to identify the manufacturers of the white lead pigment contained in the plaintiff's residence; (2) all white lead pigment is identical in its chemical composition; (3) white lead pigment is a generically marketed fungible product; and (4) a substantial latency period exists between application of the paint which contained lead pigment to the interior surfaces of the plaintiff's residence, which occurred over a number of years, and the ingestion of paint chips by the infant plaintiff.
Although the Brenner court's decision does not indicate whether defendants presented any evidence on the chemical composition of the various pigments at issue, at least one court, the Supreme Court of Pennsylvania, specifically rejected application of the market share theory on the ground that lead paint is not fungible. See Skipworth v. Lead Indus. Ass'n, 690 A.2d 169, 172 (Pa. 1997) (rejecting market share theory in lead paint case on ground that lead pigment is not fungible but, rather, has many chemical formulations and differing levels of toxicity). In Skipworth, the court also rejected the application of the market share theory because plaintiff could not state with any precision when the lead paint was applied. According to the court, due to the expansive time period at issue, a manufacturer not in the market when the paint was applied nevertheless would be held liable. See id. Compare Jackson v. Glidden Co., 647 N.E.2d 879, 884 (Ohio App. 1995) (finding plaintiff had alleged sufficient facts to state a claim for application of market share theory of liability in lead paint case) with Kurczi v. Eli Lilly and Co., 113 F.3d 1426, 1434-35 (6th Cir. 1997) (holding that the Ohio Supreme Court would not adopt a market share theory of liability). The Brenner court, however, rejected this argument on the basis of plaintiff's expert's affidavit which claimed that every single manufacturer of lead pigment that produced the product in the time frame at issue was a defendant in the action.
The defendants have appealed the Brenner decision.
Also in this issue:
- Update on the Admissibility of Expert Testimony in Federal Courts
- Testimony by Treating Physicians is Limited Unless Retained or Disclosed as Experts
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