Coverage Analysis
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THEORIES OF ALTERNATIVE LIABILITY

California has been in the vanguard of jurisdictions adopting liberal theories of "alternative liability."  In Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980), cert denied, 449 U.S. 912 (1980), the California Supreme Court adopted a novel theory of "market share liability," holding that once the plaintiff joined a sufficient number of manufacturers to represent a "substantial share of the market, the burden of proof would shift to each defendant to exculpate itself by showing that it could not have supplied the offending product.  Those defendants unable to exculpate themselves would be held liable for their portion of the judgment corresponding to their share of the market.  This theory has since been held to be inapplicable to the apportionment of punitive damages, however.  Morris v. Parke Davis and Co., 373 F.Supp. 1324 (C.D. Cal. 1983).  

Sindell has not been broadly applied beyond its original DES context.  A federal court ruled in Re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Cal. 1982) that, while recovery might be permitted on a theory of "concert of action, the theory of market share liability was inapplicable to asbestos bodily injury claims since the plaintiffs alleged widely differing exposures to different asbestos products.  Under the circumstances, it would extremely difficult to establish the relevant "market."  In the absence of proof that the plaintiffs' injuries relate to a joint or collective action of the defendants, California courts have rejected claims based on the concert of action, enterprise or market share theories.  Sheffield v. Eli Lilly & Co., 144 Cal. App.3d 583 (1983).  See also Setliff v. E.I. DuPont de Nemours, 38 Cal. Rptr.2d 763 (Cal. App. 1995)(paints solvents, strippers, glue products).

"Market share" has also been applied to HIV claims against blood product manufacturers (Doe v. Cutter Biological, Inc., 971 F.2d 375 (9th Cir. 1992)) and asbestos-line brake manufacturers (Wheeler v. Raybestos-Manhattan, 11 Cal. Rptr.2d 109 (Cal. App. 1992)).

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