IN THE SUPREME COURT OF FLORIDA
CASE NUMBER:
65,124
3RD DCA CASE NUMBER:
81-1369
THE CELOTEX CORPORATION,
Petitioner,
vs.
LEE LLOYD COPELAND and VAUDEEN COPELAND,
Respondents.
BRIEF OF AMICUS CURIAE
PITTSBURGH CORNING CORPORATION
,
STEPHENS, LYNN, CHERNAY, KLEIN
& ZUCKERMAN, P.A.
One Biscayne Tower, Suite 2400
Miami, Florida 33131
(350) 358-2000
BY:
ROBERT M. KLEIN, ESQ.
CARON E. SPEAS, ESQ.
IN THE SUPREME COURT OF FLORIDA
CASE NUMBER:
65,124
3RD DCA CASE NUMBER:
81-1369
THE CELOTEX CORPORATION,
Petitioner,
vs.
LEE LLOYD COPELAND and VAUDEEN COPELAND,
Respondents.
BRIEF OF AMICUS CURIAE
PITTSBURGH CORNING CORPORATION
r
STEPHENS, LYNN, CHERNAY, KLEIN
& ZUCKERMAN, P.A.
One Biscayne Tower, Suite 2400
Miami, Florida 33131
(350) 358-2000
BY:
ROBERT M. KLEIN, ESQ.
CARON E. SPEAS, ESQ.
TABLE OF CONTENTS
Introduction------------------------------------------------1
Statement of the Case and Statement of Facts----------------2
Certified Question------------------------------------------4
Argument----------------------------------------------------5
FLORIDA SHOULD NOT ADOPT THE MARKET SHARE
THEORY OF LIABLITY
Conclusion--------------------------------------------------35
Certificate of Service--------------------------------------36
•
TABLE OF CITATIONS
CHENOWITH v. KEMP
396 So.2d 1122 (Fla. 1981)
---------------------------~1
CITY OF NEW SMYRNA BEACH UTILITIES COMPANY v. McWHORTER
418 So.2d 261 (Fla. 1982)-----------------------------~1,12
COLLINS v. ELI LILLY & COMPANY
342 N.W.2d 37 wis. 1984)-------------------------------31
CONE v.
INTERCOUNTY TELEPHONE & TELEGRAPH CO.
40 So.2d 148 (Fla. 1949) ------------------------------17,18
GOODING v. UNIVERSITY HOSPITAL BUILDING
445 So.2d 1015 (Fla. 1984)-----------------------------18
GOODYEAR TIRE & RUBBER COMPANY v. HUGHS SUPPLY, INC.
358 so.2d 1339 (Fla. 1978)-----------------------------10,11
HANNON v. WATERMAN STEAMSHIP CORPORATION
567 F.Supp. 90 (E.D.La. )-------------------------------31
HOFFMAN v. JONES
280 So.2d 431 (Fla. 1973)------------------------------5
IN RE RELATED ASBESTOS CASES
543 F.Supp 1152 (N.D.Cal. 1982)-------------------------31
MERTAN v. E.R. SQUIBB & SONS, INC.
190 Cal.Rptr. 349 (App. 1983) -------------------------19,20
MIZELL v. ELI LILLY & COMPANY
526 F.Supp. 589 (D.S.C. 1981)--------------------------31
MORTON v. ALBERT LABORATORIES
538 F.Supp. 593 (S.D.Fla. 1982)------------------------31
MYLES LABORATORIES v. SUPERIOR COURT, etc.
184 Cal.Rptr. 98---------------------------------------19
NAMM v.CHARLES E. FROSST & COMPANY
427 Atl.2d 1121 at 1129 (N.J.App. 1981)----------------34
PATENT v. ADVERT LABORATORIES
437 N.E.2d 171, ~ass. 1982-----------------------------31
RYAN v. ELI LILLY & COMPANY
514 F.Supp. 1004 at 1017 (D.S.C. 1981)-----------------14,31
SINDELL v. ABBOTT LABORATORIES
607 P.2d 904 (Cal. 1980)------------------------------~6,7,9,
10,12,15,14,16,19,21,22,
-ii-
23,25
SPEISER v. RANDALL
357 u.S. 513 (1958)------------------------------------13
STARLING v. SEABOARD COASTLINE RAILROAD COKMPANY
533 F.Supp. 183,190 (Ga. 1982)-------------------------5,14,31,34
STATE v. HAYES
333 So.2d 51 (Fla. 1976)-------------------------------5
STUART v. HERTZ
351 So.2d 703 (Fla.
1977)------------------------------~6,27
SUMMERS v. TICE
199 P.2d 1 (Cal. 1948)---------------------------------8,9
THOMPSON v. JOHNS-MANVILLE SALES CORPORATION
714 F.2d 581 (5th Cir. 1983)---------------------------31
WEST v. CATERPILLAR TRACTOR COMPANY INC.
336 So.2d 80 (Fla. 1976)-------------------------------~4,15
YBARRA v. SPANGARD
154 P.2d 687 (1944)-------------------------------------8,9
Miscellaneous Citations:
Fischer, Products Liability, An Analysis of Market Share Liability,
34 Vanderbuilt L.Rev. 1623 at 1646 (1981)------------------21
Chase, Market Share Liability: A Plea for Legislative Alternatives,
1982, No.4, V.P., Il1.L.Rev. 1003 (1982)-------------------23,28
Necomb,
Market
Share
Liability
for
Defective
Products:
An
Ill-Advised Remedy for the Problem of IJentification, 76 N.W.--------23,28
300 U.L.Rev. 1981
Prosser, Law of Torts, §41,
(4th Ed., 1971)--------------------------18
Winscott, "Where Have All the Burdens Gone," 8 Western
State Law Review, 223 at 230 (1981)------------------------7
-iii-
INTRODUCTION
Amicus Curiae PITTSBURGH CORNING CORPORATION was a nominal
Appellee by operation of
the Rules
companion COPELAND matter.
of
Appellate
Procedure in the
That matter is still pending on rehear-
ing before the Third District Court of Appeal.
In this instance,
PITTSBURGH CORNING CORPORATION has been allowed to file
br ief
in
support
of
the
position
of
the
Peti tioner,
an amicus
pursuant
to
an order of this Court which was entered on April 23rd, 1984.
Petitioner
a
Codefendant
CORNING
in
this
CORPORATION
the
companion
and
VAUDEEN
OWENS-CORNING
trial
and
COPELAND
the
court
other
matter.
COPELAND were the
FIBERGLASS
action,
CORPORATION
along with
Defendants
Respondents
Plaintiffs
who
LEE
before
are
was
PITTSBURGH
named
LLOYD
In
COPELAND
the trial
court.
In this brief, the parties will be referred to as Petitioners/Defendants and Respondents/Plaintiffs, as well as by name.
All
emphasis
has
been
indicated to the contrary.
-1-
supplied
by
counsel,
unless
STATEMENT OF THE CASE AND STATEMENT OF FACTS
The
facts
of
this
case
have
been
adequately
summarized
decision of the Third District Court of Appeal,
which
have
been
submitted
Nevertheless,
amicus
it
would
appropriate
In
order
be
to
particularly
on
behalf
of
PITTSBURGH CORNING
to
certain
relevant
to
the
petitioning
briefly
aspects
of
arguments
the
the
and in the briefs
CORPORATION
elaborate
emphasize
the
in
parties.
believes
upon
those
that
facts
case which will
which
will
be
be
presented
by PITTSBURGH CORNING CORPORATION.
In
liabili ty,
Complaint,
negligence
dismissed
dents'
their
four
and
times,
Respondents
breach
and was
of
pled theories
warranty.
amended
The
of
strict
Complaint was
on each occasion.
Respon-
Complaint was repeatedly dismissed as a result of the COPE-
LAND'S failure to specifically identify those products which allegedly
caused
were used,
suggests
pated"
harm,
the
or where
in
by
its
specif ic
manufacturers,
they were used.
Plaintiffs,
they
the
products
Al though the Third District
opinion that market
the
when
share liability was
did
not
in
fact
sent
to
plead
"anticia
market
share liability theory of recovery.
In
interrogatories
which
were
Defendant CELOTEX CORPORATION asked MR.
product to which he had been exposed.
the
Plaintiffs,
COPELAND to identify each
Plaintiff identified products
manufactured by JOHNS-MANVILLE CORPORATION and EAGLE-PICHER CORPORATION.
In
his
JOHNS-MANVILLE
manufacturers
MR.
deposition,
MR.
CORPORATION
and
of
asbestos
COPELAND
once
EAGLE-PICHER
products
again
identified
CORPORATION
to which he had
as
the
been exposed.
COPELAND had no recollection whatsoever of having been exposed
-2-
«
to a CELOTEX product.
"I don't remember using any products manufac-
tured
by
(Deposition
Thus,
it
Celotex."
aff irmati vely
appears
of
that
Copeland,
L.L.
Plaintiff
could
Page
255).
identify
the
products of some--but not all--Defendants.
In
their
initial
brief,
which
was
filed
in
the
Third
District Court of Appeal on September 9th, 1981, Plaintiffs argued
that
the
the
dismissal
failure
MR.
trial
court
had
erred
in
dismissing
purportedly
been
their
based
upon
Complaint
the
where
Plaintiffs'
to identify any products manufactured by CELOTEX to which
COPELAND
had
been
exposed.
Plaintiffs
argued
that
this
was
error to the extent that there had been testimony which suggested
that the Plaintiff had in fact been exposed to CELOTEX products.
In
court
had
response,
been
Defendant
correct
in
CELOTEX
dismissing
argued
the
that
the
Complaint
trial
because
it
failed to plead ultim~~e facts as to product identification sufficient to support causes of action for strict liability, negligence
or
breach
of
warranty.
Thus,
according
to CELOTEX,
MR.
COPELAND
could not under any circumstances allege or prove any other element
of
his
cause
of
action
simply because he had
failed
to
identify
any products manufactured by CELOTEX.
It
is
clear
from
this
brief
synopsis
that
neither
the
Appellant nor the Appellee below addressed the market share theory
of
liability.
adopted
market
Nevertheless,
share
the
liability,
Third
and
this Court for resolution.
-3-
District
certified
Court
the
of
Appeal
question
to
CERTIFIED QUESTION
WHETHER .FLORIDA SHOULD
THEORY OF LIABILITY
ADOPT
-4-
THE
MARKET
SHARE
ARGUMENT
FLORIDA SHOULD NOT
THEORY OF LIABILITY
Before
policy
ln
and
this
wi th
venturing
practical
instance,
the
Third
ADOPT
into
a
THE
discussion
considerations
PITTSBURGH
District's
MARKET
which
CORNING
suggestion
of
are
would
that
SHARE
the
myriad
before
initially
it was
the
Court
take
issue
"venturing
an area not yet explored by the Florida Supreme Court .... "
decision, Page 9 at Note 5.
from even a
on
behalf
Third
of
cursory
of
all
District's
issues
which
COPELAND
the briefs which will be submitted
Petitioner
decision
have
into
To the contrary, as will become obvious
review of
parties
of
in
been
fact
and
the
plays
thoroughly
various
havoc
amicus,
with
any
"explored"--and
resolved--by this Court in prior opinions.
the
number
otherwise
Under the circumstances,
and particularly in light of the fact that all the circuit courts
of this state are currently bound by the Third District's opinion,
see
STATE v.
would
have
HAYES,
respectfully
refrained
333
So. 2d
submi t
from
that
adopting
51
(Fla.
1976),
the Third District should properly
this
radical
See HOFFMAN v. JONES, 280 So.2d 431 (Fla.
The
cannot
importance
be overstated.
of
The
PITTSBURGH CORNING
this
of
liability.
in
this
1973).
Court's
issues
theory
decision
case
presented to the Court by this
appeal go beyond the rights and duties existing between the parties.
Whether or not the state of Florida recognizes the theory of market
share liability may well have a far reaching impact upon the economic
system of
LINE
RAILROAD
our
entire
COMPANY,
nation.
533
See
F.Supp.
-5-
STARLING v.
183,
190
(Ga.
SEABOARD
1982)
COAST
wherein
the
court
recognized
culpability
Pandora's
In
that
product
Box
liability
of . undesirable
STARLING court rejected
in
asbestos
"judicial
the
litigation.
policy
cases
may
economic
and
decisions
to
result
opening
in
social
effects."
application of market share
See
also SINDELL v.
expand
a
The
liability
ABBOTT LABORATORIES,
607 P.2d 904 (Cal. 1980), dissenting opinion at Page 943.
When
market
the
share
Third
theory
of
District
Court
liability
supra,
interpretation
principle
an
old
Appeal
introduced
Supreme Court in SINDELL,
of
of
by
embraced
the
the
California
it did not merely endorse a novel
of
law.
To
the
contrary,
it
undermined the very foundation of tort liability as it has existed
since before the birth of this nation.
i ty
is
an anomaly
Anglo-Norman
of
our
means
common-law
responsibility,
the
in
courts
law of
"wrong. "
fault
or
fifty
torts,
For
jurisprudence,
the
of
the
Indeed, market share liabil-
the
since the word
first
time
the concept of
wrongdoing
states.
is
in
"tort"
the
in
history
liability without
under
consideration
by
That fact alone should be cause
for alarm.
The defendants in the SINDELL case were several manufacturers
of
the
drug
Diethylstilbestrol
in
the
children
of
widely
used
from
DES was later found to cause
1947 to 1971 to prevent miscarriage.
adenocarcinoma
(DES),
women who
had
taken
the
drug.
The plaintiff in SINDELL was the daughter of a DES user.
Because - DES-related
until
twenty
to
twenty-five
cancer
years
does
from
the
not
manifest
time
that
itself
the
drug
is ingested, it is difficult to identify the particular manufacturer
of
the
DES
which
allegedly
caused
-6-
injury.
It
was
purportedly
..
for
this
market
the
reason
share
that
the
liability
plaintiff
court
which,
to ,identify
in
in
the
SINDELL
effect,
adopted
made
it
defendant whose
the
theory
unneces sary
product
caused
of
for
her
injuries.
Under
only
show
(1)
defective
or
the
market
that
each
dangerous;
to
anyone
produced
a
(2)
product;
and
(4)
that
theory,
marketed
the
a
products
plaintiff
product
of
the
need
that
was
defendants
so that the product could not be attribu-
defendant;
"substantial
liability
defendant
were identical in formula,
table
share
(3)
that
percentage"
the
of
defendants
the
total
collectively
market
for
that the plaintiff had suffered damage.
that
WINSCOTT,
"Where Have All the Burdens Gone," 8 West S.L.R., 223 at 230 (1981).
Once
these
share
to
a
burden
show
the
threshold
that
shifts
they
Plaintiff's
producer
questions
can
to
did
the
not
injuries.
be
held
have
been
individual
resolved,
named
the
Thus,
possibility
liable
even
though
product
his
market
Defendants,
manufacture
the
the
which
i.e.,
caused
remains
product
may
that
not
have caused any harm whatsoever to the plaintiff.
There are two primary reasons why market share liability
is wholly
unacceptable
of
liability
is
of
jurisprudence.
as
a
theory
inconsistent with
In
addition,
of
recovery.
and
offensive
however,
First,
to
our
the basis
principles
any practical application
of the theory would be impossible, uncertain and inequitable.
MARKET SHARE LIABILITY IS OFFENSIVE TO
OUR FUNDAMENTAL NOTIONS OF JUSTICE
AND BASIC TENETS OF FLORIDA JURISPRUDENCE
Courts and commentators are once again waging the classic
debate
over
shifting
the
burden of
-7-
proof
from plaintiff to defen-
dant.
On
instances
prior
occasions,
this
where
circumstances
debate
made
has
it
arisen
impossible
in
those
for
an
rare
injured
plaintiff to obtain relief because he could not identify the culpable
the
party.
In
courts
have
the
past,
in
response
cautiously--albeit
to
such
which
of
recovery
essentially
such
place
as
the
res
situations,
rarely--shifted
of proof from the plaintiff to the defendant.
theories
rare
ipsa
burden
the
burden
As a result,
limited
loquitur
upon
the
are
available,
defendant
to
show
that he did not cause the plaintiff's injuries.
The
of
the
v.
TICE,
theory
alternative
of
market
liability
199 P . 2d I,
( Ca 1.
share
theory
1948).
liability
first
1S
a
established
In that case,
variation
in
SUMMERS
two hunters were
shooting at quail simultaneously in the direction of the plaintiff.
The
court
held
that
both
hunters
were
negligent
and
that
each
was liable for the plaintiff's injury.
EY
"The injured party has been placed
Defendants
in the unfair position of pointing to which
was the one that caused the harm.
Ordinarily
defendants are in a far better position to
offer evidence to determine which one caused
the injury."
From
the
court
context
believed
of
the
that
it
decision,
was
it
is
essentially
clear
that
the
considering
a
SUMMERS
res
ipsa
relied
upon
situation.
In
YBARRA
v.
SUMMERS,
SPANGARD,
the
154
California
P.2d
687
Supreme
(1944).
In
Court
YBARRA,
the
court
allowed a patient to recover using the theory of res ipsa loquitur,
which put
the
had caused of
burden
on
the
defendant
the patient's injuries.
-8-
doctors
to establish which
It is clear that the court
allowed
the
patient
to
avail
himself
of
the
res
ipsa
doctrine
because the patient had been unconscious at the time of the alleged
negligence.
If the doctrine is to continue to serve a
useful
purpose,
we
should not forget
that
the
particular
force
and
justice
of
the
rule ... consists in the circumstance that the
chief evidence of the true cause ... is practically accessible to defendants, but inaccessible
to the injured person. Supra at 689.
Thus,
the
be
a
in
SUMMERS
better
and
YBARRA
position
cases
than
the
require
plaintiff
that
the
to offer
defendants
evidence on
the causation issue.
It
negligent
should also be pointed out that all of the allegedly
Defendants
were
YBARRA
law sui ts.
This
before
the court,
and
joined
assured
(2)
as
(I)
that
parties
that
the
each party
in
the
SUMMERS
and
actual wrongdoer was
having the wherewithal
to prove causation had the incentive to do so.
In
contrast,
in
the
DES
drug
cases
like
SINDELL,
it
is actually the plaintiff who is in the best position to determine
the
identity
of
the
actual
The
wrongdoer.
has had actual contact with the drug,
plaintiff's
mother
and may know where she pur-
chased it, or what the packaging or pill looked like.
The manufac-
turer,
on
the
ultimate
users
and,
the
identity
of
the
the
other
hand,
therefore,
manufacturer
has
is
of
in
the
had
no
drug
no
contact with
position
to
prove
which
allegedly
with
equal
caused
harm
to
the plaintiff.
This
cases.
rationale
applies
And more important,
force
in
aSRestos
under the SINDELL market share theory,
there is no guarantee that the actual wrongdoer is even a defendant
-9-
in
the
lawsuit,
since
the
only
requirement
is
that
the
plainti f f
join a "substantial percentage" of the market.
In
connection
Rather,
SINDELL,
had
the
of
time.
to
prove
nothing
failure
Given
its
cannot
of
plaintiff I s
whatsoever
that fact,
liability
say
that
inability to
to
do
with
prove
the
a
causal
defendants.
proof was merely the result of the passage
the defendant is
"non-negligence,"
an alternative
one
the
and
theory
the
of
the
in no better position
rationale which underlies
recovery does
defendant's
not
negligence
exist,
had
i.e.,
anything
to
do with the fact that the plaintiff is now unable to prove causation
or
product
identity.
Nor
is
the
defendant
in
a
better
than the plaintiff to carry the burden of proof.
position
This is in stark
contrast to the equitable basis which may otherwise support application
in
of
a
those
res
ipsa
instances
loquitur
one
may
theory
in
reasonably
any
argue
given
that
action,
the
since
plaintiff I s
injuries could only have been caused by the defendant's negligence.
Further, in those cases, the defendant is truly in a better position
to prove otherwise.
In
INC. ,
358
concern
the
GOODYEAR
So.2d
for
1339,
the
principle
AND
1341
(Fla.
1978),
this
gloss"
which
had
"judicial
of
res
ipsa
RUBBER
COMPANY
TIRE
loquitur.
v.
Court
been
Because
of
HUGHS
expressed
developing
these
is
to
be
utilized
unavailable
to
the
of
only
the
injuring
IL.
i. e.,
where
plaintiff
incident."
its
over
concerns,
the HUGHS SUPPLY court determined to restore res ipsa to its
torically proper balance,
SUPPLY
"his-
the doctrine of res ipsa loquitur
"direct
evidence
due
the
to
Even wi thin
-10-
of
unusual
those
negligence
is
circumstances
bounds,
this
Court
admonished that res ipsa "is a doctrine of extremely limited applicabili ty,"
which
should
only
be
applied
where
the
plaintiff's
injuries could only have been caused by the defendant's negligence.
Supra at pages 1341 and 1343.
Where a market share theory is applied, it is the evidence
of the identity of the wrongdoer which is unavailable to the plaintiff,
not
evidence
therefore,
a
given
lawsuit,
it
of
the
most
negligence.
number
of
probably
market
defendants
was
not
that
any
may
be
particular
they
an
have
been
asbestos
HUGHS
case,
SUPPLY),
SUPPLY,
defined
the
supra
at
by
(if
parameters
the
the
Court will
defendant
1342.
courts
is
See
not
also
of
of
res
this
pardon
the
It
named
in
defendant's
that the market share liability theory knows no proper
limited
injury.
theory,
therefore,
the
plaintiff's
share
that
unlike
the
a
negligence
bounds,
caused
Under
would
ipsa
loquitur
as
Truly,
in
state.
the
paraphrase
"probable actor."
CHENOWETH
v.
seem,
KEMP,
from
HUGHS
396
So.2d
1122 (Fla. 1981).
In
McWHORTER,
position
ipsa
CITY
418
with
loquitur.
OF
NEW
So.2d
261
lower court,
a tion of
against
the
(Fla.
respect
to
Once
again,
an appropriate causal
negligence on
SMYRNA
the
BEACH
1982),
this
parameters
the
the
of
plaintiffs
link between their
the part of
UTILITIES
named
Court
COMMISSION
reaffirmed
liability
were
unable
v.
its
under
res
to
show
injuries and any alleged
defendant.
In reversing the
this -Court repeated its prior concerns over liberalizdoctrine
expansion
of
of
res
its
ipsa
loqui tur,
intended
the plaintiff's plight:
-11-
and implici ty warned
parameters,
notwithstanding
Certainly,
the
district
court I s
desire
to
provide relief to the McWhorters is understandable.
The
family's
suffering,
occasioned
by such a disgusting invasion of their horne,
would incite the sympathy of any feeling person.
But
regardless
of
the
magnitude
of
the
McWhorters I
misfortune,
the
facts
of
this
case do not justify the Court's efforts to
provide
that
relief
through
the
invocation
of res ipsa loquitur.
Supra at 263.
Clearly,
the McWHORTER court refused to expand an otherwise limited
doctrine
of
proof,
plaintiff's
notwithstanding
the
sympathetic
in
Yet
that
problem
the
precise
the
Third
that
motivation
District I s
case.
for
the
decision
SINDELL
to
appears
court I s
expand
nature
to
have
holding,
traditional
of
the
been
and
for
theories
of
liability in wholesale fashion.
The
shifted
is
a
the
burden
myth--an
established
for
of
SINDELL
the
"' a
of
would
proof
illusion.
have
from
In
of
generic
SINDELL,
products.
us
believe
plaintiff
fact,
the
liabi Ii ty which would
producers
those
court
in
of
court
absolute
favor
Justice
it merely
defendant.
SINDELL
exceed
products
dissent
to
that
of
This
actually
liabi Ii ty ,
the
II
consumers
Richardson,
supra
at 938.
It
appears
that
the
decision in
SINDELL was
principally
grounded upon the California Supreme Court's efforts to find someone
to
II
pay
for
the
plaintiff I s
somebody must pay.
the
court's
and
case
some
of
upon
appropr ia te
its
and
a
general
feeling
that
This determination rings true notwithstanding
II
discussion
liability,
damages,
of
alternative
colorable
rule
lega 1
of
attempt
reason
precedent.
or
Yet
-12-
or
to
some
enterprise
base
other
the
theories
result
logical
in
of
that
extension
the McWHORTER decision makes
it clear that this Court does not feel that it would be appropriate
to use sympathy for a particular class of plaintiffs as a grounds
for
ignoring or otherwise plowing under hundreds of years of legal
precedent.
wi th
Supreme
of
Court,
all
due
its
Florida,which
injured
proper
based
upon
fails
justice
and
the
The
cannot
fairness,
premise
runs
individual
i. e.,
be
the
contrary
rights
acceptable
his
inability
reconciled
market
of
an
collectivist
since
that
the motives
SINDELL
to provide
problem,
defendants.
simply
upon
in
plaintiff I s
SINDELL
for
decision
is
SINDELL therefore
respect
California
to
and
the
law
freedoms.
solution to
the
to
identify
all
jurisprudence
advanced
by
notions
of
with
share
Florida's
liability
is
companies which produce generic
predicated
items
have
no property rights, no ownership interests and, indeed, no identity
beyond that which makes their collective existence "an industry."
Presumably,
law
in
order
to
causation-in-fact is a requirement of Florida
guarantee
that
a
citizen's
to due process will not be violated.
constitutional
right
That is, one citizen's proper-
ty cannot be taken to pay the liability or debt of another citizen.
To hold otherwise is to impair that citizen's fundamental property
rights.
of
the
See, SPEISER v. RANDALL, 357 U.S. 513 (1958) for an example
due
process
concerns
which
may
be
occasioned
where
the
burden of proof is shifted.
With
the
of
court
in
shocking
SINDELL
~isregard
suggested
for
that
the
joining
defendants'
a
rights,
substantial
share
the DES market as defendants would diminish any injustice that
might otherwise result from shifting the burden of proof.
-13-
SINDELL,
supra
at
937)
In
reality,
joining
a
substantial
market does not and cannot diminish injustice;
an
innocent
producer I s
"damages,"
to an injured plaintiff.
the
odds,
ignoring
i. e.,
share
of
the
it merely diminishes
his
financial
obligation
The California Supreme Court was playing
the
fact
that
an
individual
defendant
could
be liable even though the odds might be one hundred to one against
its
liability
which
the
wi t:
a
the
in any
courts
court
to
the
extent
of
the
products
RYAN
v.
1981) ;
have
manufacturer
SINDELL
ELI
so
has
that
case.
long
this
See
v.
become
leap
SINDELL
514
one
reality,
become
1004
COASTLINE
to
Yet
step farther,
dissent,
F.Supp.
SEABOARD
a
that
its products.
even
manufacturers
& COMPANY,
STARLING
has
insurer of
quantum
others.
these circumstances,
rejected
individual
of
Under
become the
takes
LILLY
accord,
given
the
lnsurers
supra
at
at
1017
942;
(D. S.C.
RAILROAD
COMPANY,
533 F.Supp. 183 at 190 (S.D.Ga. 1982).
In
this
instance,
Defendants
are
strictly
Plaintiffs
are
thus
Defendants
owed
INC.,
336 So.2d 80
theory,
a
a
duty
COPELANDS
for
that
of
MR.
(Fla.
1976).
that
injuries.
that
the
The
need
not
prove
that
the
Defendants were
or
See, e.g., WEST v.
claimed
COPELAND I S
they
care,
have
the
CATERPILLAR TRACTOR COMPANY,
Through the use of a market share
the Plaintiffs would also be able to avoid having to prove
causal
Defendants
these
liable
alleging
them
in fact negligent.
the
two
relationship
I
products.
theories
between
The
would
be
net
MR.
COPELAND'S
effect
to put
of
the
the various
injuries
conjunctive
Defendants
and
use
in
the
of
the
position of having to pay damages to the Plaintiffs simply because
those
defendant
were
producers
of
asbestos-related
-14-
products,
and
MR.
COPELAND
has
allegedly
sustained
an
asbestos-related
injury.
PITTSBURGH CORNING would submit that such a result would run contrary
this
to
the
Court
notions
in WEST,
of
causation
which
were
re-emphasized
by
ironically at the very moment that the Court
was adopting strict liability for application in Florida.
In
not
make
effect
of
WEST,
the
the
Court
manufacturer
adoption of
noted
or
strict
that
seller
strict
an
liability
insurer."
liability was
simply
"does
Rather,
the
"to remove the
burden from the user of proving specif ic acts of neligence."
Yet
the opinion in WEST was careful to note that adoption of the Restatement
rules
of
rule
of
strict
liability
would
causation and the defenses
not
abrogate
"ordinary
applicable to negligence .... "
WEST, supra at 90.
In other words
strict liability should be
imposed only when a product the manufacturer
places on the market, knowing that it is to
be used without inspection for defects, proves
to have a defect that causes injury to a human
being .... In order to hold a manufacturer liable
on the theory of strict liability in tort,
the
user
must establish the manufacturer's
relationship to the product in question, the
defect
and
unreasonably
dangerous
condition
of the product, and the existence of the proximate causal connection between such condition
and the user's
injuries or damages.
Supra
at 86-87.
Obviously,· adoption
of
a
market
share
theory
of
liability would
radically alter these standards for recovery.
Through
the
use
of
a
market
share theory of
liability,
a plaintiff would be able to avoid having to prove that any given
manufacturer's
would
not
have
product
to
caused
actually
establish
"the
injury.
manufacturer's
-15-
The
plaintiff
relationship
to
the
product
"proximate
in
question,"
causal
manufacturer I s
contrary to
above,
and
and
Court t s
manufacturer I s
the
would
connection"
product
this
and
products
of
between
the
to
in
injuries
a
or
to
this
own
Court's
all
II
as was
their
the
particular
damages,
In short,
insurers .of
contrary
demonstrate
defect
in WEST.
become
others,
have
any
"user's
mandate
would
not
noted
products
statement
of policy in the WEST case.
It
allow
a
is
little
manufacturer
not
produce
the
the
plaintiff.
comfort that
to
escape
specific
The
the market
liability
by
asbestos-related
Third
District
has
share theory would
proving
product
already
that
it
which
did
injured
acknowledged
that
such proof is virtually impossible for even the plaintiff to obtain;
yet
the
better
plaintiff
position,
to
avoid
was
not
is
to
certainly
identify
liability,
producing
Plaintiff I s
a
as
actual
particular
asbestos
exposure.
in
at
good
a
tortfeasors.
defendant
any
PITTSBURGH
posi tion,
time
is
CORNING
Thus,
left
during
if
the
would
to
in
a
order
prove
years
submit
not
of
that
it
the
this
alteration of traditional standards of proof would seriously undermine the notion of probability which has been adhered to throughout
Florida jurisprudence.
For
produced
of
a
example,
asbestos-related
plaintiff I s
ducts.
It
plaintiff
However,
assume
is
was
twenty
that
products
year
according
to
to
the
that
particular
for
history
possible, "although
exposed
a
only
of
not
at
last
exposure
all
particular
SINDELL
the
defendant
to
few
probable,
the
months
similar pro-
defendant's
rationale,
has
that
the
product.
improbability
of this causal connection does nothing to mitigate the defendant's
-16-
liabili ty
to
the
plaintiff,
since
the
SINDELL
decision makes
it
clear that a defendant must show the complete absence of a possible
nexus between its .product and the plaintiff's injuries. The plaintiff, on the other hand, must only prove that the defendant produced
asbestos.
of
The
rest
defendant's
certainly
of
plaintiffs'
liability,
runs
contrary
is
to
case,
presumed.
the
including
This
traditional
type
the
of
notions
extent
presumption
of
proximate
causation which have been espoused by this Court.
40
So.2d
In
CONE v.
148
(Fla.
INTERCOUNTY TELEPHONE AND TELEGRAPH COMPANY,
1949),
this
Court
issued what
has
become
the
definitive pronouncement in this state on proximate causation.
Not every negligent act of ommision or commission gives rise to a cause of action for injuries sustained by another.
It is only when
injury
to
a
person ... has
resulted directly
and in ordinary natural sequence from a negligent act without the intervention of any independent efficient cause r or as such as ordinarily and naturally should have been regarded
as a probable, not a mere possible, result
of the negligent act, that such injured person
is entitled to recover damages as compensation
for his loss.
Conversely, when the loss is
not a direct result of the negligent act complained of, or does not follow in natural
ordinary sequence from such act but is merely
a possible, as distinguished from a natural
and probable, result of the negligence, recovery
will not be allowed.
Supra at 149.
Application
a
of
jury verdict,
these
principles
caused the
CONE court to
reverse
since the Court did not feel that the plaintiff s
I
injuries could be viewed as the probable consequence cf
the
dant's negligence.
The responsibility of a tort-feasor for
consequences of his negligent acts must
somewhere,
and under our
legal system
-17-
the
end
the
defen-
liability of the wrongdoer is extended only
to the reasonable and probable, not the merely
possible,
result of a dereliction of duty.
CONE, supra at 150.
Yet
as
was
liability
noted
would
against
above,
often
result
defendant
a
application of
in
whose
an
a market
assessment
product
share theory
of
money
damages
possibly--but
had
of
not
probably--caused injury to the plaintiff.
More recently, in GOODING v. UNIVERSITY HOSPITAL BUILDING,
INC.,
445
So.2d
standing
Florida
"more
from
principle
has
Dean
pure
best
a
that
than
not"
Prosser I s
not
lS
a
of
proving
caused
enough.
Rather,
or
a
in
a
negligence
a
defendant's
plaintiff's
mere
or
"I
the
the
GOODING,
I"
action
in
negligence
injuries.
possibli ty
Citing
of
matter
such causremains
probabilities
becomes the duty of
defendant.
long
the GOODING court through
" I when
conjecture,
it
Court reaffirmed the
that
the
that
the
this
plaintiff
stressed
evenly balanced,
for
1984),
treatise on torts,
speculation
verdict
(Fla.
burden
McDonald
ation ' "
of
the
likely
Justice
1015
one
are
at
the court to direct
supra
at
1018,
citing
to Prosser, Law of Torts, §41 (4th Ed. 1971).
In GOODING, the court refused to "approve the substitution
of ... an
obvious
declined
to
inequity
relax
for
a
traditional
perceived
burdens
one,"
of
i. e.,
proof
the
merely
court
because
existing causation requirements might ultimately prove too burdensome
for
those
plaintiffs
"who
the medical malpractice caused
could
an
prove
injury but
probability of causation .... "
GOODING,
arly,
Court
in
this
instance,
the
-18-
the
possibility
could not prove the
supra at 1019-1020.
should
that
refuse
to
Simil-
judicially
negate time worn burdens
because
some
of proof and theories of causation solely
plaintiffs
may
have
asbestos-related
a
difficult
every
exposed.
Adoption of the market share theory would be particularly
fied
several
case,
where MR.
asbestos-related
to
which
identifying
virtually
inappropriate in this
product
time
they
have
been
COPELAND has in fact identi-
products
which
he
used
during
his
career.
Subsequent application of the
fornia
of
v.
indefensible
basis
for
liability.
SUPERIOR COURT, etc., 184 Cal.Rptr.
defendant was
form
created by the Cali-
Supreme Court in SINDELL has demonstrated the limitlessness
this
the
"law"
for
use
able
to
by women.
show
98
that
it
In
MYLES
LABORATORIES
(App. 1982), for example,
never marketed
The court ru led
that
DES
the defendant
in any
could
be held liable,
since it knew or should have known that pharmacists
would
DES
put
share by
Such
and
its
acquiescing
conduct,
spirit
that
to
case
if
of
in
a
use.
"The
the
drug's
is
certainly
SINDELL
decision."
true,
the
wrote
such
scathing
defendant
use for
opinion
gained
a
market
an unintended purpose.
actionable
The
under
the
dissenting
regarding
the
logic
justice
direction
in
the
law has taken in the State of California.
Similar
v.
E.R.
the
evidence
that
by
SQUIBB
the
Eli
DES
Lilly
&
results
SONS,
are
INC.,
overwhelmingly
ingested
Squibb.
permi tted
the
190
under
Cal.Rptr.
supported
the
by ··the plaintiff I s
Company,
Defendant
possible
On
plaintiff
the
jury
appeal,
to
state
a
-19-
349
In
(App.
1983)
defendant's
MERTAN
where
contention
mother had been produced
returned
the
SINDELL.
court
market
a
verdict
ordered
share
a
in
favor
retrial
cause
of
of
and
action
against Squibb.
The appellate court felt
that there was at least
a possibility that defendant Squibb was the culpable manufacturer.
(Eli
Lilly
action,
Company
&
was
inexplicably
therefore giving rise to the
must pay"
no
longer
a
party
inference that the
to
the
"somebody
mentality was once again a factor.)
Market share liability also creates serious equal protec-
tion
concerns.
liability
Parties who avail
theory
(those
who
themselves
cannot
of
identify
the market
the
share
manufacturer)
are in a more favorable position than those plaintiffs in asbestos
actions
who
certainly
tort
Thus,
may
base
in
actions,
the
pick
a
their
more
upon
favorable
e.g.,
who
choose
in
cannot
among
standard
position
plaintiffs
plaintiff
and
claims
any
tort
law.
They
than plaintiffs
medical
prove
any
number
of
malpractice
causation
potential
are
in other
lawsuits.
whatsoever
defendants,
thereby increasing his opportunity for recovery.
Obviously,
of
plaintiffs
provides
identity.
the
an
who
unequal
are
incentive
This
plaintiff
manufacturer
is
can
may
protection
unable
to
for
plaintiff
a
particularly
readily
not
be
plaintiff's jurisdiction.
identify
true
identify
amenable
under
is
to
the
law
specific
to
a
evidence
manufacturer
insolvent,
service
favor
manufacturers
withhold
where
in
of
or
where
process
in
of
whom
that
the
1
At this point, it is .. worth mentioning that the largest single
I /
producer of asbestos-related products, JOHNS-MANVILLE, is currently
undergoing reorganization.
Pursuant to the applicable bankruptcy
regulations, all proceedings against MANVILLE in this state have
been stayed, although asbestos-related bodily injury claims remain
pending as to all other named defendants.
-20-
Thus,
the
manufacturer
who
cannot
the plaintiff may be left "holding the bag"
escape
liability
to
for another defendant,
even though the other defendant's circumstances are not the result
of
an
are
is
abundance
strictly
it
ducts
caution
fortuitous.
that
as
collective whole
a
stances,
that
a
lack
of
it
under
liability
where
a
by
a
to
reason
prove
not
make
of
share
of
a
causal relationship is
it makes
no
Yet
"rough
that
the
the
sense that
a
justice"
manufacturer
who
of
the
keeps
should
best
their pro-
circum-
are
sufficient
that
not necessary to
the
nor
individualized
records
market
s ens e
but may
conclusively
lack thereof
rather
theory,
a
be
share
plaintiff
liability then
a
valid defense.
approach
records
to
If the exis-
could not possibly have been exposed to its product.
tence
but
are liable for
market
manufacturer's
manufacturer
negligence,
doe s
defendant manufacturers
avoid
e. g.,
or
Simi lar ly ,
fair
nevertheless
allow
of
for
the
mandates
longest
time will have the best chance of avoiding liability.
That
was
most
aptly
market
share
expressed
by
liability
Justice
violates
Richardson
equal
in
his
protection
dissenting
opinion in SINDELL.
A system priding
itself
on
'equal
justice
under the law' does not flower when the liabili ty as well as the damage aspect of a tort
action is determined by a defendant I s wealth.
The inevitable consequence of such a result
is
to
create
and
perpetuate
two
rules
of
law--one
applicable
to
wealthy
defendants,
and another standard pertaining to defendant I s
who are poor or 'who have modest means. SINDELL
at 941.
From
a
historical
tort
liability
perspective,
have
expanded
the
to
dimensions
an
-21-
alarming
and
parameters
extent.
of
Judicial
rulings
which
are
tacitly
based
upon
a
"deep
pocket"
theory
or
which are otherwise designed to adjust for problems of proof should
be strictly applied within the bounds of constitutional principles.
Historically,
further,"
only
the
courts
have
to
decide
years
take that next step.
has
curtai led
res
ipsa
the
loquitur,
said
"we will
later
of
one
it
alarming trend,
such
"deep
far
is
but
time to
this
pocket"
no
Court
theory,
and has otherwise refused to relax traditional
burdens of proof in medical malpractice actions.
to take
this
that perhaps
Recognizing this
expans ion
go
This Court refused
"that extra step" in the GOODING and HUGHES SUPPLY cases.
Adoption
of
represent
a
a
market
major
share
step
beyond
liability
the
theory
of
recovery
lines which were
would
drawn by
the
Court in those two cases.
PRACTICAL APPLICATION OF MARKET SHARE LIABILITY
WOULD BE IMPOSSIBLE, UNCERTAIN AND INEQUITABLE
According to the court in SINDELL, the formula for determining
the
extent
of
a
defendant
manufacturer's
liability
under
a market share theory is as follows:
(w] e hold it to be reasonable in the present
context to measure the likelihood that any
of the defendants supplied the product which
allegedly injured plaintiff by the percentage
which the DES sold by each of them for the
purpose of
preventing miscarriage bears
to
the entire production of the drug sold by
all for that purpose.
Supra at 937.
The court further required ··that a "substantial share" of the "appropriate market" be joined as defendants.
[This] also provides a ready means to apportion damages among the defendants.
Each defen-22-
dant will be held liable for the portion of
the judgment represented by its share of that
market. Supra at 937.
PITTSBURGH
CORNING
would
submit
that
the
SINDELL
court--in
its
attempt to "diminish the injustice,"--has provided a formula which
is so susceptible to alternate interpretations that it is virtually
incapable of practical application.
It would
tionate share of
where
liability
is otherwise
since
is
based
formula,
bution,
any
it
in
upon
"fact"
by that defendant's
such
fault.
the mere
circumstances
of production,
share of the market,
bears
no
relationship
The determination of a defendant I s
the
II
appropr ia te
market"
and
requires
an
to
"market
economic
which is only designed to provide a means of risk distrisince
true
is
based upon
"measured"
the concept of
obvious that a defendant 's propor-
liability must be capable of precise measurement,
liability
share"
seem rather
such
a
determination would
assignation
of
fault,
by
have
little
definition.
For
to
this
do
with
reason,
essential that the formula be capable of fair and equitable
application between each of the defendant manufacturers.
What
graphic area,
ed,
the
appropriate or relevant market?
Time,
geo-
the forum in which the defendant's product is market-
and the quantity of asbestos in that product are all relevent
variables
Share
U.
is
affecting
Liability:
Ill.L.Rev.
Defective
a
defendant's
A Plea
1003
Products:
for
(1982};
An
market
Chase,
share.
Legislative Alternatives,
Newcomb,
Ill-Advised
Market
Remedy
Share
for
Market
1982,
No.4,
Liability
the
Problem
for
of
Identification, 76 N.W. U.L.Rev. 300 (1981)
What
year
constitutes
the
-23-
relevant
market?
In
a
DES
context,
the
relevant
market
in
terms
of
time would
when plaintiff's mother ingested the DES.
context,
be
the
time
However, in an asbestos
since exposure is continuous over a period of time, every
year,
month or day during the years of exposure would be relevant,
since
arguably
it
cannot
be
determined
tracted the asbestos-related disease.
when
It
the
Plaintiff
con-
likely that a defen-
1S
dant's liability will vary greatly depending upon the year chosen,
and
in fact
it would appear that some kind of
formula would have
to be worked out so as to include virtually every moment of exposure.
Absent
some
kind
of
ruling
which
would
require
that
a the relevant market include the entire period of the plaintiff's
exposure
to
year will
asbestos-related
determine
the
products,
relevant
who
market?
be dictated by the whim of the plaintiff,
have
the
means
of
optimizing
his
were
left
open
to
selection,
a
own
is
If
to
the
decide
which
decision
is
to
then the plaintiff will
recovery.
plaintiff would
If
this
period
presumably
bring
suit against those manufacturers who are best able to pay an award,
and
who
otherwise
held
the
greatest
share
of
the
market
during
the period of exposure.
Which asbestos products will be considered in determining
the
relevant
Plaintiff
not
the
Such
may
others.
quanti ties
market?
have
Many
products
contain
to
some
Moreover,
ea9h type
of
product will contain varying
asbestos
depending
upon
nature of
equations
the product,
will
be
even
and the
more
the
asbestos
asbestos.
exposed
of
been
different
manufacturing
but
formula,
identity of the manufacturer.
confused by
-24-
products,
the
fact
that
each
manufacturer may not have produced specific products during different periods of time.
Apportionment
is
yet
another
aspect
of
market
share
liability upon which the California Supreme Court in SINDELL elected
not
to
elaborate.
That
is,
the
Court
failed
to
specify whether
or not each defendant's market share is to be determined in proportion to every other defendant's share or in relation to
relevant
market.
This
problem
is
illustrated
by
th~
the
entire
following
scenario:
Assume that plaintiff's damages are $100,000
and
he
joins enough asbestos manufacturers
to represent 60% of the relevant market.
Defendant X occupies 20% of the relevant market
and 33 and 1/3 % of the market that all joined
defendants represent.
If each defendant is
liable only for the percentage of the judgment
that is equivalent to its share of the relevant
market, then Defendant X would be liable for
20% of the damages, or $20,000.
If defendants
are required to pay 100% of the judgment,
however,
then Defendant X must pay 1/3 of
the judgment or $33,333, which is equivalent
to 1/3 of the market that all joined defendants
represent.
In other words, Defendant X would
have to pay 67% ($13,333) more than its share
of
the
relevant market.
Fischer,
Products
Liability--An Analysis of Market Share Liability, 34 Vanderbilt L.Rev. 1623 at 1646 (1981).
Thus,
share
it can be seen that the extent to which a defendant's market
and
the
ul timately
defendant's
depend
of the market"
upon
whether
manageable
market
and
method
must
or
are
not
disproportionate
a
will
"substantial
percentage
may
to
is involved in the suit.
Assuming- arguendo
a
liability
and
the
be
fair
method
individual
applied
that
to
a
court
for
market
calculating
shares
reality.
-25-
of
This
be
able
both
the
devine
relevant
the
defendants,
would
largely
that
depend
upon the continuing existence of
is
no
have
guarantee
kept
volved.
may
it
such
If
a
that
each of
records
over
relevent market data.
the
the
various
twenty
particular manufacturer
escape
liability,
Yet there
defendant manufacturers
to
forty
has
not
year period
kept
such
in-
records,
or should the court speculate as
to its
share of the market?
Market
well-publicized
be forced to
in
order
to
share
liability
asbestos
makes
manufacturers.
easy
targets
of
large,
These
manufacturers
will
join as many of the smaller manufacturers as possible
spread
the
losses.
(Assuming,
of
course,
that these
smaller manufacturers will be amenable to suit in the jurisdiction
recognizing
tional
market
share
liability.)
tort/products
This
transforms
the
tradi-
lawsuit
liability
into
multi-defendant/multi-district litigation and involves tremendously
increased litigation costs.
In
STUART
v.
HERTZ,
351
So.2d
703
(Fla.
1977),
this
Court specifically prohibited a defendant in an automobile accident
law sui t
a
from
physician
plaintiff
in
br inging
who
this
third
allegedly
sustained
STUART,
a
in
Court
the
party
had
action
aggravated
original
clearly
for
the
indemnity
injuries
accident.
proscribed
what
which
its
it
characterized
To hold otherwise would in effect permit a
defendant to determine the time and manner,
indeed the appropriateness, of a plaintiff's
action for malpractice.
This decision eliminates the traditional policy of allowing the
plaintiff to chose the time, forum and manner
in which to press his claim.
A complete outsider,
*
*
and a
tort feasor at that,
-26-
the
In
as an inappropriate attempt to expand third party practice.
*
against
decision
must not be allowed to ... make the plaintiff I s
case against the original tortfeasor longer
and more complex through the use of a third
party
practice r ule which was
adopted
for
the
purpose
of
expediting
and
simpli fying
litigation.
*
*
*
[A] third party action ... would not only incorrectly expand traditional concepts of indemnity
to the point of making it indistinguishable
from contribution, but also expand the applicability of the third party rule and make it
a tool whereby the tortfeasor is allowed to
complicate the issues to be resolved in a
personal injury suit and prolong the litigation
through the filing of a third-party malpractice
action.
STUART, supra at 706.
Thus,
this Court refused to allow the third party indemnity action
ln STUART.
Notwithstanding
these
however ,
it
seem
where
named
sui t
a
would
attempts
hardly
defendant
to
plead
in
fair
a
policy
laudable
to
bar
particular
market.
share
a
considerations,
third
party
action
asbestos-related
injury
liabili ty
in
a
third
party
action against manufacturers who had not been named by the plaintiff
in
the
original
complaint.
would
certainly
be
would
undoubtedly
could
not
state
This
attractive
be
to
appropriate
conclusively
kind
the
in
that
of
third
smaller
any
he
practice
manufact.urers,
case
had
party
where
only
a
been
and
plaintiff
exposed
to
those products which were manufactured by the original defendants.
Thus,
been
exposed
a
plaintiff
solely
to
one
who
is
virtually
product,
but who
certain
is
that he
honest
enough
had
to
concede that he might have worked with the products of other manufacturers, will be put in the unenviable position of being subjected
to a massive third party action which was not of his own choosing.
-27-
This
kind
of
third
party
practice
has
other
ominous
implications
the
judgment
as well.
If
to
the
each. defendant's
share
of
an adversarial
each
the
other
will
be
of
defendants,
position vis
defendant
share
a
vis
required
the
defendants
each other.
to
hire
is
wi 11
In all
it
own
relative
be
in
likelihood,
accountants
and
actuaries
for
the purpose of determining the extent of its liabil-
i ty.
the
larger
If
smaller
the
manufacturers
manufacturers
same
as
litigation
parties
costs
as
are
successful
defendant,
the
the
former.
in
joining
latter
The
total
will
the
have
potential
cost of such complex litigation is staggering.
Furthermore,
possible
of
a
to
the
to
product
the
must
into
of
that
is the case,
will
at 1654.
plished
is
costs
bear
some
Damages
in
the
litigation
excess
ity
these
consumer.
estimated
to
pass
there
hundreds
costs
which
and
can
be
on
no
guarantee
to
consumers,
rational
that
it
because
relationship
to
the asbestos-related cases
of
billions
the
resulting
passed
on
of
dollars.
figure
to. the
would
be
the
price
its
value
have
been
Add
that
may well
consumer.
be
If
in
this
the risk distribution purposes of market share liabil-
be
defeated.
In addition,
where
any
Newcomb,
supra
at
316;
Fischer,
supra
risk distribution cannot possibly be accom-
number
of
manufacturers
are
no
longer
in
the
market place, or have otherwise gone out of business.
In
which
of
that - regard," there
warrant
each
of
more
these
than
a
mere
considerations
are
several
footnote,
would
other
considerations
although
warrant
a
the
broadnes s
separate
brief.
For example, where does the liability of wholesalers or distributors
-28-
.,
. ..
fit
into
such
the
broad
entities
defective
are
scheme of
liable
products.,
market
where
pursuant
share
they
to
this
liability?
have
passed
Court I s
Certainly,
along
otherwise
adoption
of
strict
liability.
Under
liable
where
the
they
circumstances,
have
sold
are
distributors
asbestos-related
to
be
products?
held
If
so,
how is a distributor's market share to be determined?
While
ordinary
such
sugggestions
circumstances,
given
might
a
appear
distributor's
academic
under
potential
cause
of action for indemnity against an "actively negligent" manufacturer, the absence of fault in a market share approach should arguably
render
indemnity
questions
then the distributor I s
in fact,
have
to
a
If
that
is
the
case,
share of the market becomes a factor,
in some instances,
profited
meaningless.
and,
the largest distributors may actually
greater
degree
from
the
distribution
of
asbestos-related materials than did some of the smaller manufacturers.
These
inquiries
alone
should
be
sufficient
to
call
the
advisability of adoption of this theory of recovery into question.
As
can
raised
be
readily' seen
above,
profit
prominence than do
tortfeasor
is
or
utilized.
that market
and
share
the
considerations
market
share
such questions
proximate
Yet
from
where
CORNING
liability will
to
have
assume
been
greater
as the identity of a particular
causation
PITTSBURGH
begin
which
not
a
market
would
serve
share
theory
respectfully
submit
the purpose for which
it was intended.
In a
traditional product liability jurisdiction,
-29-
a manu-
facturer
ordinarily
has
the
incentive
to
produce
a
safe product,
because the manufacturer is only responsible for its own products.
However, where market share liability is implemented, manufacturers
will almost certainly be held liable for injuries which were actually
caused
the
by
another
manufacturer
subsidizing
the
of
a
manufacturer's
relatively
manufacturers
manufacturer
is
being
of
safe
held
will
be
for
a
always
defendants,
smaller manufacturer to
this
may
for
a
and the
there
setting,
actually
products.
liable
generic product,
In
product
defective
damages caused by a
almost
product.
Thus,
percentage
be
since
of
all
larger manufacturers
is
really
no
incentive
improve upon its production of that
particular generic product.
The possibility of being subjected to a product liability
suit will only operate as an incentive to an individual manufacturer
where
potential
over
which
example,
liability
that
where
particular
a
bears
manufacturer
manufacturer
measures
to
has
remedy
any
relationship
manufacturer
has
believes
exposure to litigation and/or a
the
some
some
that
it
to
a
product
control.
may
For
curtail
its
judgment by improving its product,
additional
incentive
perceived defect
to
in his
take
appropriate
product line.
On
the other hand,
where market share liability is implemented,
there
is
the
sued.
The
no
limit
threat
to
of
number
litigation,
of
times
therefore,
to the individual manufacturer,
has
that
a
company
serves
as
no
can
real
be
deterent
since that manufacturer's liability
no direct correlation with anything over which the individual
defendant
manufacturer
principle of
has
any
control.
behavioral science may be,
-30-
As
axiomatic
as
this
it has apparently escaped
·
.,
those who would advocate market share liability.
Most courts
have rejected market share liability because
of the belief that it fails to serve the deterent and risk distribution purposes
same
are
for
courts
have
inherent
in
attempting
to
PANY,
also
the
437
been
N.E.
the
2nd 37,
v.
STARLING
F.Supp.
183
(S.D.Ga.
538
F.Supp.
593
(M.D.Fla.
543
F.Supp.
1152
567
SALES
CORPORATION,
cases,
rejection
determining
there
has
STARLING,
supra;
714
has
relevant
been
supra;
joint
RYAN v.
COASTLINE
RELATED
HANNON
581
ELI LILLY & COM-
(5th
unanimous
526
ALBERT
v.
WATERMAN
Cir.
1983).
because
the
CASES,
STEAMSHIP
JOHNS-MANVILLE
In
asbestos
difficulty
is
particularly
exposure
to
the
product.
CASES,
589
COMPANY,
ASBESTOS
THOMPSON v.
ASBESTOS
F.Supp.
LABORATORIES,
shares
RELATED
ADVERT
ELI LILLY
RAILROAD
IN
RE
v.
COLLINS v.
v.
and
CORNING
several
would
liability
and
finally
of
acute
where
See,
e.g.,
supra;
liability.
practice,
which
compelled
to
Aside
were
point
from
raised
out
that
the
address
contribution
feasors which will arise should this
share
which
HANNON,
THOMPSON, supra.
PITTSBURGH
of
injustices
& COMPANY,
(E.D.La.);
been
most of these
PATENT
MORTON
1982);
F.2d
RE
LILLY
1982);
market
IN
1984);
1982);
continuous
1982;
SEABOARD
90
the
market.
Mass.
Wis.
(N.D.Cal.
F.Supp.
about
relevent
V.
However,
the difficulties which arise when
ELI
533
CORPORATION,
concerned
2nd 171,
MIZELL
1981);
designed.
theory and
342 N.W.
supra.;
(D.S.C.
is was
determine
LABORATORIES,
& COMPANY,
which
the
among
problem
joint tort
Court decide to adopt market
implications
for
earlier~
PITTSBURGH
a
share
market
-31-
third
party
CORNING
feels
theory
of
recovery
·
"
would
hopelessly
feasors,
confuse
contribution
pursuant to Florida law,
actions
among
joint
tort
and otherwise render meaningless
this state's jurisprudential concept of joint and several liability.
For
example,
would
any
given
defendant
in
an
ongoing
asbestos
lawsuit have the right to seek contribution from all other manufacturers
the
(or
distributors
suit?
Would
all
or
wholesalers)
defendants
be
who
were
jointly and
not
joined
severally
in
liable,
or would each defendant simply be responsible for paying his "share"
of the plaintiff's damages?
Clearly,
his
share
of
the
if
a
defendant
damages
caused
could
to
only
be
held
the plaintiff
liable
as
among
for
those
defendants who are actually joined in a lawsuit, then that defendant
would
have
the
other
potential
right
to
file
defendant
a
who
third
had
party
not
been
action
named
against
in
the
any
suit.
What will this do to the cost of asbestos litigation, particularly
if trial court
judges get into the habit of denying
leave to file
third party complaints, pursuant to this Court's mandate in STUART?
These and a plethora of similar questions will arise--and
have arisen in California--with the advent of market share liabilIn
ity.
submit
the
that
final
a
analysis,
plaintiff's
therefore,
inability
to
PITTSBURGH
identify
CORNING would
specific
tort
feasors does not provide a sufficient reason to change fundamental
principles of tort
law which have evolved over hundreds of years.
To
PITTSBURGH
the
contrary"
CORNING
would
respectfully
submit
that this is the wrong forum for redress of such concerns.
If
a
generic
there
is
a
product which
sense
has
of
collective
responsibility
been manufactured on
-32-
an
for
industrywide
t
..
I
scale,
then
imposition
of
inherently unjust.
Our
injustices,
create
since
to
recognized
indi vidual
our
not
that
rights
courts
court
And
judicial
freedoms,
with
on
an
individual
system was designed
them.
our
and
applies
liability
system
the
equal
while
our
is
to
correct
courts
have
designed
mandate
force
to
basis
which
to
we
defendants,
such
long
protect
have
as
is
given
well
as
plaintiffs.
It
can
impose
has
that
is
respectfully
liability on
power
and
submitted
an entire
that
that
only
industry.
capability.
Yet
the
legislature
Only the
legislature
PITTSBURGH
CORNING would
suggest that there is a real question as to whether even the legislative branch of any given state would have the authority to legislate
the
kind
of
in
this
instance
court
liability
which
solely
has
wi thin
been
a
created
single
by
state,
the
lower
since
this
is truly a nation-wide problem.
Undoutedly,
to
pass
pay
a
for
law
were the
which
damage
would
which
had
legislature of the State of Florida
require
been
a
handful
caused
by
of
the
manufacturers
entire
to
membership
of a particular industry, that statute would be subjected to strict
judicial scrutiny,
ali ty.
be
no
It
less
is
and would otherwise be of doubtful constitution-
respectfully
repugnant
from
submitted
a
that
a
constitutional
simi lar
result would
standpoint where
that
result has been achieved through judicial fiat.
At
than
the
the .very
courts
aids
legislature on this
tional
problems,
least,
action
by
the
efficiency and assures
topic will
which will
preclude
uniformity.
rather
National
law"
jurisdic-
repeatedly,
and which
"choice of
otherwise arise
-33-
legislature
will undoubtedly induce forum-shopping should market share liability
be
adopted
in
have urged a
tiffs
who
STARLING
and
190;
only
few
states.
Many
courts
and
commentators
legislative solution for the problems of those plain-
are
V.
a
incapable
SEABOARD
NAMM
v.
of
COAST
CHARLES
identifying
LINE
E.
RAILROAD
FROSST
&
the
proper
COMPANY,
COMPANY,
defendant.
supra
427
at
Atl.2d
186
1121
at 1129 (N.J.App. 1981).
For
in
this
the
brief,
reasons
and
for
which
the
have
reasons
been
which
set
will
forth
be
at
length
expressed
by
the other Petitioners and Amicus, PITTSBURGH CORNING would earnestly
submi t
that this
legislature,
is
indeed a
problem which should be
left to the
and most appropriately for resolution by the Congress
of the United States.
-34-
·
,.
CONCLUSION
For all of the above cited reasons, Amicus Curiae PITTSBURGH
enter
of
CORNING
CORPORATION
an order quashing
Appeal,
and
respectfully
the
otherwise
decision of
rejecting
requests
the
market
this
Court
to
Third District Court
share
liability
as
a
theory of recovery for plaintiffs in asbestos-related bodily injury
actions pending in Florida.
Respectfully submitted,
ROBERT M. KLEIN
CARON E. SPEAS
-35-
_,
I
l
)
CERTIFICATE OF SERVICE
WE
foregoing was
HEREBY
served
CERTIFY
by mail
that
a
this
true
and
correct
21st day of May,
copy
of
the
1984,
to
the
attached list of addressees.
STEPHENS, LYNN, CHERNAY, KLEIN
& ZUCKERMAN, P.A.
One Biscayne Tower, Suite 2400
Miami, Florida 33131
(305) 358-2000
BY:
IN
~
~
A
fv.,
6&...-.~-
- - - M.
- -KLEIN
--------ROBERT
-36-