The doctrine permits recovery against manufacturers of a fungible product in proportion to their market share, where the plaintiff cannot identify which produced the item causing harm. It originated in DES litigation.
Application requires product fungibility and a defined market.
Alternative Names:
Market Share Theory, Enterprise Liability
Why it Matters?
Fungibility is what confines the doctrine, since it requires that all manufacturers' products be identical in the relevant respect so that market share approximates the probability of causation. Courts have declined to extend it to asbestos, lead paint, and firearms on that basis, because those products differ materially in composition and hazard. The doctrine remains adopted narrowly and rejected outright in many states.
Frequently Confused with
Related terms
Frequently asked questions
Why has the doctrine not extended beyond DES?
Is it widely adopted?
