A Study On American Market Share Liability

Market share liability in the tort law of the USA started with DES series of cases in the eighties of the last century, first created in the Sindell case by California Supreme Court. To deal with the problems that in DES cases most victims are unable to confirm the pharmaceutical enterprises truly cause their harm, market share liability modify causation request in the traditional tort law, and allow plaintiff gain compensation e basis on defendants’market share when the causation is not clear. Market share liability has been advanced into many mode, the California mode and the New York mode are the most Representative ones.In21st Century, as the science and the industrial productivity have been greatly improved, mass tort cases with uncertain causation happen frequently in our country and bring great challenge to our tort law system. Market share liability is of great value for us to deal with this challenge. There are essential differences between New York mod and California mode in their design philosophy, so choosing a right mode is of crucial importance. This article will compare and analysis differences between New York mod and California mode, such as design philosophy, basis of liability, determination of causation, and study in the essence of market share liability.In the end of this article it would be concluded that the New York mod market share liability is better by design when dealing with mass tort cases.In the first chapter, we introduce the background of the development of market share liability and the two mod of market share liability, then we discuss the characteristics of these two different mod market share liability.In the second chapter, we will further explore the characteristics of New York mod and California mode, contrast these two kinds of market share liability objectively, analyze their own advantages and disadvantages and finally conclude that New York mod market share liability is more rational in practice.In the third chapter, firstly, we argue that market share liability is not base on the merely risk, but the actual damage defendants have made. Then, integrating two main causation theories of market share liability, we advance an opinion that causation still is an important factor for New York mod market share liability. Finally, we conclude that New York mod market share liability dose not deviate from the traditional tort law principle and it shall get more widely admitted.In the fourth chapter, combine with a series of mass tort cases with uncertain causation occur in our country recent year, we discuss that China’s tort law system still is new to this kind of case and introducing market share liability is quite necessary. Then we further discuss some problems probably encounter and must be solved.