In Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, the California Supremes pioneered
the "market share" liability theory for plaintiffs alleging injury caused by generic, fungible products whose producers could not be identified. The ruling allowed plaintiffs who claimed injury from such products, but were not able to identify the exact manufacturer, to nonetheless recover without linking a particular manufacturer to their exposure, so long as they brought to court the defendants responsible for a "substantial share" of the relevant market.
Then, in Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, the Court of Appeal held that if the plaintiff's route to liability was market share theory, he or she couldn't recover punitive damages. The few other cases to address this issue nationwide have generally agreed. As a result, market share theory isn't all that popular among plaintiff attorneys who think they may have a shot at punitive damages.
Now comes the Columbia Journal of Law and Social Problems, in its Winter, 2008 edition, with the article "Market Share Liability & Punitive Damages: The Case for Evolution in Tort Law." The note promises, but does not deliver, a "compelling argument that [Magallanes and the other cases] were decided incorrectly, and that market share liability should, in fact, be allowed to support punitive damages." In other words, the concept is that a plaintiff should, under some circumstances, be allowed to recover not just compensatory damages against a manufacturer whose product he never encountered, but punitive damages as well.
As the author points out, nobody in the United States has bought into this theory so far. And I'll stick my neck out and guess this expansion of the law isn't high on the priority list of many Courts of Appeal in California, either.
Hat tip to California Punitive Damages, An Exemplary Blog, for catching this, and for noting that perhaps next time, the Columbia Journal of Law and Social Problems may want to cite check the cases: Magallanes, one of the primary cases discussed in the note, is misspelled throughout.
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