“ The Federal District Court in Spokane certified seven questions to this court regarding a tort claim filed by Kathleen George against the defendant DES manufacturers and distributors. These questions focus on how liability should be apportioned among the defendants, and ask for explanation and clarification of this court’s decision in Martin v. Abbott Labs.
GEORGE v. PARKE-DAVIS, Leagle, 1987691107Wn2d584_1650, January 22, 1987.
In Martin, we developed the theory of market share alternate liability. Under this theory, a plaintiff can state a cause of action for injuries associated with her mother’s ingestion of DES by suing one or more DES manufacturers and alleging the following:
- her mother took DES,
- the DES caused her subsequent injuries,
- the defendant or defendants produced or marketed the type of DES taken by her mother,
- and this production or marketing of DES constituted the breach of a recognized legal duty to the plaintiff.
Individual defendants can exculpate themselves if they can establish that for whatever reason they did not market the DES which could have caused the plaintiff’s injuries. If the defendants cannot exculpate themselves from liability then they are presumed to have equal market shares unless they can establish their actual market share in the relevant geographic market. Martin, at 605-06. If any defendant can establish its actual market share, then this figure, rather than the presumptive share, controls.
George contends she was injured because of DES ingested by her mother. The federal court has certified seven questions to discuss liability apportionment among defendants in light of Martin. “…
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