MBE Rules · Torts
Market-Share Liability
Sindell — market share
The rule
For fungible products (DES) where the manufacturer cannot be identified, some courts apportion damages among manufacturers by market share unless a defendant proves it could not have made the product.
In plain English
Market-share liability allows plaintiffs to recover damages from multiple manufacturers of a fungible product when the specific manufacturer cannot be identified. In these cases, damages are divided among the manufacturers based on their market share, unless a manufacturer can prove it did not produce the harmful product.
Worked example
A group of patients suffers harm from a contaminated batch of a generic drug, but they cannot determine which manufacturer produced the harmful batch. The court decides to apply market-share liability, and each manufacturer is held responsible for a portion of the damages based on their market share in the generic drug market. As a result, the plaintiffs receive compensation from all manufacturers involved.
Memory hook
If you can't find the maker, share the blame!
The trap
Exams may present scenarios where students must identify which manufacturers can escape liability, leading to confusion about the burden of proof. Students often overlook the requirement for defendants to prove they did not produce the product.
How examiners test it
Questions typically involve a fact pattern where multiple manufacturers are implicated in harm caused by a fungible product, testing the student's understanding of how to apply market-share liability principles.
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