A Comparative Study Of Market Share Liability

Market share theory of liability in tort law from the United States deals with defective products case, among which the most influential case is DES case that trailed by the California Supreme Court. The plaintiff in that case could not determine the causation between specific injury and which defendant'products. DES is a synthetic hormone, and the main role is to help pregnant women to prevent miscarriage. In 1941-1971, there was a total of over two hundred manufacturers produced this drug in the United States. Until the late 70s of 20th century. U.S. scientists found that DES has serious side effects. The next generation of those took DES will be potential sufferers because the daughters of those mums may have higher possibilities to catch cancer than normal kids. While the plaintiff's mother does not remember which manufacturers of the DES she had taken. Unfortunately, at the same time, DES was not patented, and they are produced by pharmaceutical companies generally without any trademarks. Doctors'prescription just wrote down "DES" or "Diethylstilbestrol". In short, the plaintiff can not identify the drug producers. In order to protect the legitimate interests of victims, case law broke the traditional theory of tort law rules to establish binding rules of so called'market share'liability, that is, in some poisonous and harmful substances in cases of virulence, due to damage caused by substances that have been included in some substitutability of generic products, the plaintiff has no evidence that the damage is caused by which producers. In the case the liability can not be identified, to this regard, the court will holds, after consideration of the policy account for a large share of the market in a number of vendors as a common for plaintiff. The defendant in their respective market share of the damage has to pay back the plaintiff within the scope of liability. After this leading case, there came to many states to have established this rule.In 2008, the series of melamine cases in China raise new challenges to the tort law, how to determine causation and effect in such cases, as a result, are determinant for the victims to get compensation. According to the existing rules, the court, based on procedural rules to require sufficient evidence to prove causation, usually dismissed the plaintiff's complaint. The sate had to use national finance force to pay the plaintiffs'damage and offer free medical treatment to victims. The victims'losses can not be wholly compensated, and it is also questionable that the tort liability of the manufacturers is beard by innocent taxpayers for its legitimacy-deficit. With China's pharmaceutical, food industrial sector's development, its safety was questioned. Take drugs for example, the continuous development of China's pharmaceutical industry and the improvement in the level of internationalization can not meet any longer the demand of drugs in terms of patent protection in foreign countries over the drug formulation and production technology, which, through long-term testing and clinical applications, to some extent, ensured the relative safety of drugs (also no evidence that its side effects). But in China more and more pharmaceutical companies have developed drug technology themselves. And then how to ensure that potentials from "DES"-like harms will be China's priority. In the Chinese market, domestic enterprises lacks scientific production process and effective monitoring systems and many other factors may be the high handles for users suffering physical and mental health situation. Meanwhile, manufacturers and more extensive distribution channels, consumers will find it difficult to claim damages. The Chinese torts law has hardly a perfect answer to our problems. The dilemma is that proposal to establish "market share liability theory" will be not consistent with the existing tort rules, and if not, similar mass "DES cases" will not well dealt.This article attempts to analysize the United States jurisprudence of the "Sindell v. Abbott Laboratories", "Lead poisoning cases", "Collins v. Eli Lilly Company" and other related cases to understand the "market share liability theory" and the relevant rules. Meanwhile, the theory of collective responsibility, the market share liability theory in different states will be accessed. The conclusion will be whether it is possible and how to introduce this controversial theory and what is the affect of it to ius commonne.