Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
caused the plaintiff’s harm. Hymowitz, by contrast, explicitly severed the causal connection
between the injured plaintiff and the liable defendant. Is this a justifiable evolution of the
common law to deal with a unique type of problem? Or is this an example of courts trying to
solve a problem that they are not institutionally suited to handle?
No other forum adopted Hymowitz’s national market share liability. This created the
strange consequence that DES manufacturers whose market share in New York was higher than
their national market share benefitted relative to manufacturers whose market share in New York
was lower than their national market share, due to the different rules in each jurisdiction.
Wisconsin and Washington both chose approaches where defendants were liable based on some
probability that they caused the injury, which was measured by a combination of market share and
other facts in each trial. Defendants in those states were exculpated if they could prove that the
plaintiff did not ingest their product. Collins v. Lilly & Co., 116 Wis. 2d 166 (1984); Martin v.
Abbott Labs., 102 Wash. 2d 581 (1984). Are the conflicting effects of different rules in each state
a reason why state tort law may be ill-suited to handle this type of national problem? Or can the
ongoing dialogue between state courts we saw in Hymowitz create reasonable accommodation of
other states’ approaches?
3. Lead poisoning and market share. When is market share liability an appropriate solution?
Pennsylvania distinguished the DES cases to deny recovery on a market share theory in suits
brought by minor victims of lead poisoning suffered in homes painted over decades with paint
from unidentified paint manufacturers:
[T]he relevant time period in question is far more extensive than the relevant time
period in a DES case. In this case, [plaintiff Skipworth] cannot identify any
particular application, or applications, of lead paint which have caused Skipworth’s
health problems. Thus, they “pinpoint” a more than one hundred year period from
the date the house was built until the lead paint ceased being sold for residential
purposes as the relevant time period. In contrast, the relevant time period in a DES
case is necessarily limited to the nine months that the patient ingesting the product
was pregnant.
The difficulty . . . is that entities who could not have been the producers of the lead
paint which injured [plaintiff Skipworth] would almost assuredly be held liable.
Over the one hundred year period at issue, several of the pigment manufacturers
entered and left the lead paint market.
Skipworth v. Lead Inds. Ass’n, 690 A.2d 169, 233-34 (Pa. 1997). The court further noted that:
[L]ead paint, as opposed to DES, is not a fungible product. All DES used for
treatment of pregnant women was manufactured according to an identical formula
and presented an identical risk of harm. In contrast, it is undisputed that lead
pigments had different chemical formulations, contained different amounts of lead,
and differed in potential toxicity. . . . [I]n this case, apportioning liability based
upon a manufacturer defendant’s share of the market (even if it were possible to
obtain an accurate statistic considering the lengthy relevant time period at question)
would not serve to approximate that defendant’s responsibility for injuries caused
by its lead paint. For example, a manufacturer whose lead product had a lower
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