Last week we put up a post commenting on something that we thought was wrong with New Jersey law.  This week we’re compelled to comment on something that the New Jersey courts have gotten right – they don’t like market share liability – maybe not quite as thoroughly as we detest it, but enough that there hasn’t been a successful case in almost forever.
Just this week in Moreno v. American Home Products, Inc., slip op. (N.J. Super. A.D. July 12, 2010), a three-judge appellate panel rejected the latest attempt (which was very late) by an New Jersey plaintiff to invoke market share liability.  The plaintiff claimed – over 30 years after the fact – that a polio vaccine caused his brain tumor.  Because the plaintiff delayed bringing the claim for all this time (until 2002), there were no records left to identify the manufacturer of the vaccine (between 1968 and 1970).  Slip op. at 2.
We’re puzzled why there’s no statute of limitations issue in the case, but apparently there wasn’t – nobody even mentioned it.  We’re presuming that New Jersey has a minority tolling statute, but even that shouldn’t let a plaintiff slide for 30 years.  It also appears that plaintiff wasn’t much quicker after filing suit than before. The case went through five years of discovery before the defendants were granted summary judgment on failure – and plaintiff claimed he should have even more.  Slip op. at 5-8.
No problem, the plaintiff argued on appeal, just let me sue every maker of polio vaccine under a market share theory.  The vaccine was administered in New York, but by the time plaintiff got around to filing suit, he had lived in New Jersey for 35+ years.  So there was a choice of law question – only the court held that there wasn’t.  There wasn’t because the court found that there was no outcome-dispositive conflict.  That is, neither New Jersey (which hasn’t recognized market share liability in any case) nor New York (which allows it for DES) would permit this plaintiff to proceed on that basis.
First, the court ran through the usual litany of non-market share collective liability theories:  (1) Concert of action failed because there wasn’t any common plan to commit a tortious act.  Slip op. at 10-11. (2) Enterprise liability failed (it’s never actually been recognized by anybody anywhere since Judge Weinstein dreamed it up back in 1972) because the product was governmentally regulated (by the FDA) rather than left in the hands of an industry trade association.  Id. at 12.  (3) Alternatively liability failed because all of the defendants weren’t negligent.  Rather, the plaintiff claimed a lot-specific manufacturing defect.  Id. at 12-13.
Then the court turned to market share liability – which was the real battleground.  As fate might have it, the question of market share liability in New Jersey was governed by a case, Shackil v. Lederle Laboratories, 561 A.2d 511 (N.J. 1989), that long, long ago (but not in a galaxy that far away) Bexis helped litigate.
Fortunately for the defendants in Moreno, Shackil was also a vaccine (DTP) case, and its rejection of strict liability in such cases was impossible for the plaintiff to avoid:

The New Jersey Supreme Court has held that market-share liability cannot be applied to relieve a plaintiff of the obligation of identifying the manufacturer of a childhood vaccine that causes damage. The Court reasoned that Congress had considered the problem of vaccine-induced injuries and provided a remedy that does not require the injured party to identify a manufacturer. The Court also considered the regressive effect that collective liability would have on the social policy of encouraging vaccine production and research. On those bases, the Court rejected application of market-share liability in cases involving vaccines. . . .

Moreno, slip op. at 13 (a half-dozen or so Shackil cites and quotation marks omitted).  Given Shackil’s “assessment of the public policy favoring the development of vaccines,” slip op. at 14, the court affirmed dismissal under New Jersey law.  Id.
The market share claim was also dismissed under New York law, even though the New York Court of Appeals, in one of its whiftier moments (it’s normally a pretty conservative court on product liability matters) had allowed market share liability in a DES case.  See Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989). The DES situation, however, was “singular”:

[T]he DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, generically marketed product, which causes injury many years later, and which has evoked a legislative response reviving previously barred actions.

Moreno, slip op. at 14 (quoting Hymowitz).  Except for DES, market share liability had been universally rejected in New York.  Id. at 17-18 (citing cases involving guns, lead paint pigment, and breast implants). Most critically, since the plaintiff’s theory alleged a manufacturer-specific manufacturing defect that contaminated a particular batch of vaccine, there was no industry-wide defect that even plausibly could justify deviating from the usual tort requirement of suing the manufacturer of the purportedly defective product:

[T]he precedents discussed above require a court applying New York law to reject application of market-share liability in cases involving a vaccine that is defective due to failure to comply with protocols and not attributable to a flawed common generic formula. Deviant defective doses are not generic and fungible doses.

Slip op. at 18. So the plaintiff came up short in New York, even though market share liability was a something cognized by that state’s highest court.
Since we don’t like market share liability, we like Moreno.  Practically the only way that it falls short is that for some inexplicable reason it’s designated “not for publication.”
So that’s Moreno – which would be enough except this is when we do our longer posts. Not only that, but writing about Moreno had us looking at market share liability generally, and it just so happens that we haven’t done an analytical post on this subject in our more than three-year existence. So we thought we’d do one of our 50-state updates on what states allow it and which ones don’t.

It’s hard to see how market share liability could arise under federal law, but it has.  In In re Dow Corning Corp., 250 B.R. 298, 362-63 (Bankr. E.D. Mich. 2000), the bankruptcy court rejected market share liability in the context of breast implants where the federal government invoked the theory in an attempt to recover Medicare reimbursement.

Market share liability has been rejected under Alabama law in the asbestos context.  Franklin County School Board v. Lake Asbestos of Quebec, Ltd., 1986 WL 69060 (N.D. Ala. Feb. 13, 1986).

We couldn’t find anything on market share liability in Alaska.

Ah, the wonders of MDL litigation.  In In re Minnesota Breast Implant Litigation, 36 F. Supp. 2d 863 (D. Minn. 1998), the court predicted that Arizona would reject market share liability.  A bit closer to home, the Ninth Circuit declined to predict that Arizona would apply market share liability in an asbestos case.  White v. Celotex Corp., 907 F.2d 104 (9th Cir. 1990).

The Eighth Circuit has predicted that Arkansas would reject market share liability in an asbestos case.  Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir. 1993).  Applying Jackson, a federal district court concluded that “Arkansas has not adopted alternative or market share liability,” in Fields v. Wyeth, Inc., 613 F. Supp.2d 1056, 1060 (W.D. Ark. 2009), a case involving multiple producers of the same drug in branded and generic forms.  See Burns v. Universal Crop Protection Alliance, 2007 WL 2811533 (E.D. Ark. Sept. 25, 2007) (no market share liability in herbicide case).

The California Supreme Court invented market share liability in Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980), a DES case.  California courts are split on whether market share liability could apply in vaccine cases.  A state court said no. Sheffield v. Eli Lilly & Co., 192 Cal. Rptr. 870, 876-77 (Cal. App. 1983), but a federal court said yes – the only decision in the country to do that, as far as we know.  Morris v. Parke, Davis & Co., 667 F. Supp. 1332 (C.D. Cal. 1987).  Attempts to apply market share liability to other prescription medical products have failed.  Kennedy v. Baxter Healthcare Corp., 50 Cal. Rptr. 2d 736 (Cal. App. 1996) (latex gloves).  A bunch of California cases refuse to extend market share liability to a variety of other products.  Ferris v. Gatke Corp., 132 Cal. Rptr. 2d 819 (Cal. App. 2003) (asbestos); Edwards v. A.L. Lease & Co., 54 Cal. Rptr. 2d 259 (Cal. App. 1996) (pipe); Setliff v. E.I. Du Pont de Nemours & Co., 38 Cal. Rptr. 2d 763 (Cal. App. 1995) (paint and varnish); Mullen v. Armstrong World Industries, Inc., 246 Cal. Rptr. 32 (Cal. App. 1988) (asbestos); Sanderson v. International Flavors & Fragrances, Inc., 950 F. Supp. 981 (C.D. Cal. 1996) (perfume); In re Related Asbestos Cases, 543 F. Supp. 1152 (N.D. Cal. 1982) (asbestos).

We didn’t find anything on market share liability in Colorado, which surprised us a bit, since it’s not a small state.

The Connecticut state courts haven’t spoken, but a federal court rejected market share liability in a DES case under Connecticut law.  Gullotta v. Eli Lilly & Co., 1985 WL 502793 (D. Conn. May 9, 1985).

Delaware courts have said no to market share liability, at least in the asbestos context.  Nutt v. A.C. & S. Co., 517 A.2d 690 (Del. Super. 1986); In re Asbestos Litigation, 509 A.2d 1116 (Del. Super. 1986), aff’d, 525 A.2d 146 (Del. 1987).

The D.C. Circuit, applying D.C. law, has rejected market share liability in a DES case.  Tidler v. Eli Lilly & Co., 851 F.2d 418 (D.C. Cir. 1988).  A “state” trial court likewise rejected market share liability in firearms litigation.  District of Columbia v. Beretta U.S.A. Corp., 2002 WL 31811717 (D.C. Super. Dec. 16, 2002), aff’d in part and rev’d in part on other grounds, 872 A.2d 633 (D.C. 2005).

The Florida Supreme Court recognized market share liability in Conley v. Boyle Drug Co., 570 So. 2d 275 (Fla. 1990), a DES case.  Later, a Florida federal court held that market share liability would lie in a blood products case.  Ray v. Cutter Laboratories, 754 F. Supp. 193, 195 (M.D. Fla. 1991).  However, a Florida trial court refused to apply market share liability where the plaintiff didn’t know which of several companies made the generic drug he took in Sharp v. Leichus, 2006 WL 515532 (Fla. Cir. Feb. 17, 2006), aff’d, 952 So.2d 555 (Fla. App. 2007).  Market share liability has also fared poorly outside of the prescription medical product context.  See Celotex Corp. v. Copeland, 471 So. 2d 533 (Fla. 1985) (no market share liability in asbestos litigation); Pulte Home Corp. v. Ply Gem Industries, Inc., 804 F. Supp. 1471 (M.D. Fla. 1992) (no market share liability against manufacturers of roofing materials).

Georgia state courts have yet to address market share liability, but it has been rejected by federal courts applying Georgia law.  Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir. 1985) (asbestos insulation); Starling v. Seaboard Coast Line Railroad Co., 533 F. Supp. 183, 186 (S.D. Ga. 1982) (asbestos).

There’s certainly no paradise for defendants in Hawai’i when it comes to market share liability.  It’s the only state in the union where the supreme court has imposed market share liability against a prescription medical product other than DES.  See Smith v. Cutter Biological, 823 P.2d 717 (Haw. 1991) (blood products AIDS case).

Nothing in the state court, but in Doe v. Cutter Biological, 852 F. Supp. 909 (D. Idaho 1994), appeal dismissed, 89 F.3d 844 (9th Cir. 1996), a blood products case, the federal court held that market share liability does not comport with Idaho law.

Since the Illinois Supreme Court rejected market share liability in a DES case, Smith v. Eli Lilly & Co., 560 N.E.2d 324 (Ill. 1990), there’s no real chance it would be adopted for any other product.  See Poole v. Alpha Therapeutic Corp., 696 F. Supp. 351 (N.D. Ill. 1988) (no market share liability in blood product case).

In a firearms case, the Indiana Supreme Court refused to recognize market share liability.   City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003).

Nope, and no way. The Iowa Supreme Court rejected market share liability even in DES cases in Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986).

Not a thing in Kansas on market share liability.

Nothing from Kentucky state courts, but a federal court declined to predict Kentucky’s adoption of market share liability in a case involving the antibiotic tetracycline.  Dawson v. Bristol Laboratories, 658 F. Supp. 1036 (W.D. Ky. 1987).

In In re Factor VIII or IX Concentrate Blood Products Litigation, 2000 WL 282787 (E.D. La. March 14, 2000), a court applying Louisiana law declined to impose market share liability in – you guessed it – a blood products case.  In George v. Housing Authority of New Orleans, 906 So.2d 1282 (La. App. 2005), market share liability was rejected in a case involving smoke detectors.  The theory has also been repeatedly rejected by the Fifth Circuit applying Louisiana law.  Jefferson v. Lead Industries Ass’n, Inc., 106 F.3d 1245 (5th Cir. 1997) (lead paint pigment); Bateman v. Johns-Manville Sales Corp., 781 F.2d 1132 (5th Cir. 1986) (asbestos); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir. 1983) (asbestos).

No court in Maine has addressed market share liability to date, but a federal district court a couple of states over predicted that Maine would reject the theory, at least in the context of fire resistant tape.  Kinnett v. Mass Gas & Electric Supply Co., 716 F. Supp. 695 (D.N.H. 1989) (applying Maine law).

The D.C. Circuit predicted that Maryland wouldn’t recognize market share liability in a DES case in Tidler v. Eli Lilly & Co., 851 F.2d 418 (D.C. Cir. 1988).  Market share liability also failed when asserted against breast implant manufacturers in Lee v. Baxter Healthcare Corp., 721 F. Supp. 89 (D. Md. 1989), affirmed without op., 898 F.2d 146 (4th Cir. 1990).  The theory has also failed against non-medical products, and Maryland’s high court has a pending case that would allow it to speak on the subject for the first time.  See Reiter v. AC&S, Inc., 947 A.2d 570 (Md. App. 2008) (no market share liability in asbestos litigation), cert. granted, 954 A.2d 467 (Md. 2008); Herlihy v. Ply-Gem Industries, Inc., 752 F. Supp. 1282 (D. Md. 1990) ( no market share liability in fire retardant plywood case).

Massachusetts law can get rather liberal on some things, but not market share liability, as the Supreme Judicial Court rejected non-identification liability in DES litigation in Payton v. Abbott Labs, 437 N.E.2d 171 (Mass. 1982).  Accord Armata v. Abbott Laboratories, 747 N.Y.S.2d 863, 865 (N.Y.A.D. 2002) (applying Massachusetts law and rejecting market share liability in DES case).  Market share liability has also failed under Massachusetts law against various other prescription medical products.  Mills v. Allegiance Healthcare Corp., 178 F Supp 2d 1, 8-9 (D. Mass. 2001) (latex gloves); Spencer v. Baxter International, Inc., 163 F. Supp.2d 74 (D. Mass. 2001) (blood products); Gurski v. Wyeth-Ayerst Division of American Home Products Corp., 953 F. Supp. 412, 418-19 (D. Mass. 1997) (oral contraceptive).

The Michigan Supreme Court recognized something like market share liability in Abel v. Eli Lilly & Co., 343 N.W.2d 164 (Mich. 1984), in a DES case.  No Michigan court that we know of has ever applied the Michigan quasi-market share liability theory outside the DES context.  See Marshall v. Celotex Corp., 651 F. Supp. 389 (E.D. Mich. 1987) (declining to apply market share liability to asbestos litigation).

Oddly, the only context in which market share liability has been raised in Minnesota has been with respect to flammable clothing.  That’s happened twice, and in both cases the theory’s been rejected.  Bixler v. Avondale Mills, 405 N.W.2d 428 (Minn. App. 1987); Mason v. Spiegel, Inc., 610 F. Supp. 401 (D. Minn. 1985).

Nada in Mississippi. That’s another state where we thought we’d find something, but didn’t.

What we said for Massachusetts applies equally to Missouri.  See Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. 1984) (rejecting market share liability in DES case).  See also City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007) (rejecting market share liability in lead paint pigment case).

No court applying Montana law has said anything about market share liability.

Market share liability, per se, has never come up under Nebraska law.  In Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir. 1988) (applying Nebraska law), the court refused to apply something called “market share apportionment,” which seems to be mostly the same thing.

Deafening silence in Nevada on market share liability.

It’s never come up in a drug case, but market share liability under New Hampshire law was rejected in University System of New Hampshire v. U.S. Gypsum Co., 756 F. Supp. 640, 655-56 (D.N.H. 1991) (asbestos).

As discussed above, the New Jersey Supreme Court rejected market share liability in the vaccine context in Shackil. The court did not slam the door on market share liability in all conceivable contexts, however.  Two intermediate appellate courts (pre-Shackil) rejected market share liability and other non-identification theories in DES cases, Lyons v. Premo Pharmaceutical Labs, Inc., 406 A.2d 185 (N.J. Super. App. Div. 1979); Namm v. Charles E. Frosst & Co., 427 A.2d 1121 (N.J. Super. App. Div. 1981), as has a federal court, Pipon v. Burroughs-Wellcome Co., 532 F. Supp. 637 (D.N.J. 1982), aff’d without op., 696 F. 2d 984 (3d Cir. 1982).  Between them, these decisions which pretty much obliterate an even older trial court case allowing market share liability in DES litigation.  Cf. Ferrigno v. Eli Lilly & Co., 420 A.2d 1305 (N.J. Super. Law Div. 1980).  Market share liability has been rejected as against non-medical products as well.  See Becker v. Baron Brothers, 649 A.2d 613 (N.J. 1994) (asbestos); McLaughlin v. Acme Pallet Co., 658 A.2d 1314 (N.J. Super. App. Div. 1995) (wooden pallets); Sholtis v. American Cyanamid Co., 568 A.2d 1196 (N.J. Super. App. Div. 1989) (asbestos).

No New Mexico court has spoken on market share liability – that we’ve been able to find, anyway.

The New York Court of Appeals adopted market share liability in a DES case, all the while emphasizing the unique nature of the DES litigation.  Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989).  That uniqueness has been maintained, as market share liability has been rejected in other prescription medical product cases, In re New York State Silicone Breast Implant Litigation, 631 N.Y.S.2d 491 (N.Y. Sup. 1995), aff’d mem., 650 N.Y.S.2d 558 (N.Y.A.D. 1996) (breast implants – duh!), as well in cases involving non-medical products.  Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001) (firearms); Healey v. Firestone Tire & Rubber Co., 663 N.E.2d 901 (N.Y. 1996) (multi-piece wheels); Brenner v. American Cyanamid Co., 699 N.Y.S.2d 848 (N.Y.A.D. 1999) (lead paint pigment); Gifaldi v. DuMont Co., 569 N.Y.S.2d 284 (N.Y.A.D. 1991) (chemicals used to make insulation); Catherwood v. American Sterilizer Co., 532 N.Y.S.2d 216 (N.Y. Sup. 1988) (ethylene oxide); 210 E. 86th St. Corp. v. Combustion Engineering, 821 F. Supp. 125 (S.D.N.Y. 1993) (asbestos).

Market share liability hasn’t been asserted very much in North Carolina.  It was rejected in Griffin v. Tenneco Resins, Inc., 648 F. Supp. 964 (W.D.N.C. 1986), a case involving benzidine congener dyes.

Market share liability has never been raised in a North Dakota law prescription medical product case, but was rejected in the context of asbestos brake pads in Black v. Abex Corp., 603 N.W.2d 182 (N.D. 1999).

Market share liability is so not happening in Ohio.  Even when it was otherwise pro-plaintiff, the Ohio Supreme Court rejected market share liability in DES.  Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio 1998).  So did the Sixth Circuit applying Ohio law. Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1431-32 (6th Cir. 1997) (applying Ohio law).  To top it off, the legislature has barred market share liability by statute.  Ohio R.C. §2307.73(C).

The Oklahoma Supreme Court considered and rejected market share liability in an asbestos case.  Case v. Fibreboard Corp., 743 P.2d 1062 (Okla. 1987).  Likewise, the Tenth Circuit, applying Oklahoma law, has rejected market share liability in both DES and vaccine cases.  Wood v. Eli Lilly & Co., 38 F.3d 510 (10th Cir. 1994) (DES); Miller v. Wyeth Laboratories, 43 F.3d 1483, 1994 WL 708197 (10th Cir. Dec. 21, 1994) (vaccine) (unpublished).

The Oregon Supreme Court refused to recognize market share liability in a vaccine case.  Senn v. Merrell-Dow Pharmaceuticals, Inc., 751 P.2d 215 (Or. 1988).

Pennsylvania courts have not addressed market share liability in DES, but have rejected other non-identification theories in that context.  Burnside v. Abbott Laboratories, 505 A.2d 973 (Pa. Super. 1985).  Market share liability has been rejected as to other prescription medical products.  Mellon v. Barre-National Drug Co., 636 A.2d 187 (Pa. Super. 1993) (syrup of ipecac).  In addition, the Pennsylvania Supreme Court and other courts applying Pennsylvania law have rejected market share liability in quite a few non-prescription medical product situations.  See Skipworth v. Lead Industries Ass’n, Inc., 690 A.2d 169, 173 (Pa. 1996) (lead paint pigment); Pennfield Corp. v. Meadow Valley Electric, Inc., 604 A.2d 1082 (Pa. Super. 1992) (wire); Cummins v. Firestone Tire & Rubber Co., 495 A.2d 963 (Pa. Super. 1985) (tires); City of Philadelphia v. Lead Industries Ass’n, 994 A.2d 112 (3d Cir. 1993) (lead paint pigment); Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir. 1990) (asbestos); Warnick v. NMC-Wollard, Inc., 512 F. Supp.2d 318 (W.D. Pa. 2007) (airplane belt loader); Mathai v. K-Mart Corp., 2006 WL 166521 (E.D. Pa. Jan. 20, 2006) (electrical plug); Santarelli v. BP America, 913 F. Supp. 324 (M.D. Pa. 1996) (fish); In re School Asbestos Litigation, 1990 WL 168400 (E.D. Pa. Oct. 30, 1990) (asbestos); Vigiolto v. Johns-Manville, 643 F. Supp. 1454, 1463 (W.D. Pa. 1986) (same), aff’d mem., 826 F.2d 1058 (3d Cir. 1987).

The Rhode Island Supreme Court has rejected market share liability even in DES cases.  Gorman v. Abbott Laboratories, 599 A.2d 1364 (R.I. 1991).

The South Carolina state courts haven’t spoken on the subject, but two federal district court decisions reject market share liability even in the DES context.  Mizell v. Eli Lilly & Co., 526 F. Supp. 589 (D.S.C. 1981); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004 (D.S.C. 1981).

A long time ago, a federal district court – blatantly ignoring federalism – predicted that the South Dakota Supreme Court would adopt market share liability.  McElhaney v. Eli Lilly & Co., 564 F. Supp. 265 (D.S.D. 1983).  A quarter century later and that hasn’t happened yet, only another federal court refusing to apply market share liability in a multi-piece tire rim case.  Bradley v. Firestone Tire and Rubber Co., 590 F. Supp. 1177 (D.S.D. 1984).

The Sixth Circuit refused to predict that Tennessee would adopt market share liability in a dental amalgam case.  Barnes v. Kerr Corp., 418 F.3d 583 (6th Cir. 2005) (applying Tennessee law).  The theory has also been rejected in asbestos litigation.  Bailiff v. Manville Forest Products Corp., 772 F. Supp. 1578 (S.D. Miss. 1991) (applying Tennessee law).

“Texas state courts have not adopted the theories of alternative liability, concert of action, enterprise liability, or market share liability.”  Hicks v. Charles Pfizer & Co., 466 F. Supp.2d 799, 804 (E.D. Tex. 2005) (vaccine case).  “We know of no Texas appellate decision which … has even approved of in dicta, much less adopted, the theories of ‘alternative liability, concert of action, enterprise liability, or market share liability” Cimino v. Raymark Industries, Inc., 151 F.3d 297, 313-14 (5th Cir. 1998) (asbestos).  What we do know is that the Texas Supreme Court considered and broadly rejected market share liability in an asbestos case. Gaulding v. Celotex Corp., 772 S.W.2d 66 (Tex. 1989).  A federal court also rejected market share liability in a blood products case under Texas law.  Les v. National Hemophilia Foundation, 2001 WL 432628 (N.D. Tex. April 25, 2001).

No Utah court has given market share liability either a thumbs down or a thumbs up.

Zilch in Vermont on market share liability.

Nothing in Virginia on market share liability either – the most populous state in the county about which that may be said.

The Washington Supreme Court recognized market share liability in Martin v. Abbott Laboratories, 689 P.2d 368 (Wash. 1984), in a DES case.  No Washington court has applied market share liability outside the DES context.

West Virginia courts have not spoken to market share liability.

Wisconsin is the pits on this issue.  First, the Wisconsin Supreme Court recognized a variant of market share liability in Collins v. Eli Lilly & Co., 342 N.W.2d 37 (Wis. 1984), a DES case.  Then the court compounded the error by expanding Collins even further so that a fungible product isn’t even required.  See Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005) (lead paint pigment).  This theory hasn’t raised it’s ugly head in Wisconsin prescription medical product cases yet, to our knowledge.  We recently blogged about how one federal court found the Thomas/Collins liability theory so expansive and bizarre as to be unconstitutional.

Wyoming law is silent as to market share liability.