Enterprise liability lets unidentified-product plaintiffs recover by market-share apportionment

Evidence

Courts have also permitted recovery even when, as in the DES case, plaintiffs could not identify which company manufactured the product that harmed them. Rather than deny relief, courts established the doctrine of enterprise liability, under which all manufacturers of a product are required to pay damages for injuries the product caused. In the DES case, the court apportioned liability among the companies that had produced the drug on the basis of their market shares. The doctrine of enterprise liability has proved particularly helpful in assessing liability in so-called toxic torts cases, such as those involving exposure to asbestos or Agent Orange, in which a huge number of plaintiffs have been injured by a generic product. — G. Alan Tarr, Judicial Process and Judicial…, 3464

Categorization

• DEFINE: Names and defines a doctrinal innovation: all manufacturers pay, apportioned by market share.
• XREF: Connects to the DES cases and to mass toxic-tort litigation likely covered elsewhere in the course’s materials.