“Plaintiffs commenced this action in New York alleging that they sustained injuries resulting from their in utero exposure to diethylstilbestrol (DES). Plaintiffs Judith Shepherd Armata, Kathleen Anna Maffa-Krailo and Marianne Margaret Alberigi (collectively, Massachusetts plaintiffs) were born in and are residents of the Commonwealth of Massachusetts and another plaintiff, Lorraine Allison Therrien, was born in and is a resident of Connecticut. As we recognized in a prior appeal, the parties have conceded that Massachusetts substantive law is applicable to the claims of the Massachusetts plaintiffs.” …
ARMATA v. ABBOTT LABS., Leagle, 2002388298AD2d90_1371, October 1, 2002.
In Payton v Abbott Labs., a certified question of law was submitted to the Massachusetts Supreme Judicial Court asking whether market share liability was a viable theory of recovery in Massachusetts. Noting that the “identification of the party responsible for causing injury to another is a longstanding prerequisite to a successful negligence action,” the court rejected the market share theory of liability proposed by the plaintiffs therein. However, the court did not reject market share liability in its entirety and went on to state:
That is not to say that on an adequate record this court would not recognize some relaxation of the traditional identification requirement in appropriate circumstances so as to allow recovery against a negligent defendant of that portion of a plaintiff’s damages which is represented by that defendant’s contribution of DES to the market in the relevant period of time
In the 20 years since Payton, however, no state appellate court in Massachusetts has endorsed market share liability or any other nonidentification theory of liability. The issue has been addressed by the United States District Court for the District of Massachusetts in four cases, spanning 16 years. In the earliest of those cases, the court adopted the market share theory of liability, reducing the plaintiff’s burden to proving only that the defendant produced or marketed the same type of DES ingested by the plaintiff’s mother, as “distinguished by color, shape, size or markings” (McCormack v Abbott Labs.)” …
… continue reading the full paper ARMATA v. ABBOTT LABS., on Leagle.