… “Plaintiffs are twenty-seven women allegedly suffering damage to their reproductive systems due to their in utero exposure to DES. Plaintiffs claim that each of the defendants was either a manufacturer or distributor of DES. In their complaints each plaintiff asserted strict liability under products liability, negligence under products liability, breach of warranty, market share liability, concert of action and alternative liability.
Under the claim headed “market share liability” each plaintiff uniformly alleged that
“the passage of time since DES exposure and the Defendants’ methods of sale, distribution and promotion of DES has made it unreasonably difficult to determine which Defendant manufactured the exact DES which harmed the Plaintiff.”
Each plaintiff claimed that
“as a result of the difficulty of proof stated [above], the market share theory of liability should be applied, requiring each Defendant [sic] affirmatively prove it did not cause the Plaintiff’s injuries.”
KURCZI v. ELI LILLY & CO., Leagle, 19971539113bf3d1426_11538, May 12, 1997.
All defendants moved for summary judgment on all claims based on market share liability on the ground that Ohio had neither adopted such a cause of action nor abandoned the traditional tort requirement that a plaintiff must show, as part of the causation element of her claim, that she was injured by the conduct of a specific defendant. Plaintiffs filed cross-motions for summary judgment on the legal issue of their right to proceed on the theory of market liability. After examining the only two Ohio cases on the subject, the district court concluded that if properly presented with the question, the Ohio Supreme Court would recognize a market share theory of liability in DES litigation. The district court noted that on the one occasion in which the Ohio Supreme Court considered the theory of market share liability in the context of asbestos litigation, the court left the issue of market share liability in DES cases open for future consideration.” …
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