Professional Documents
Culture Documents
MARKET SHARE
Write a Note like Naomi Sheiner and you could be cited by the Ninth
Circuit
Market Share Liability
Key Issues
Qs to Ask
Hymowitz
Is it a signature disease?
Yes
Yes
No
Yes
Several Liability
Which market?
National
LOST CHANCE
Holding a physician liable for damages when he diminishes or
destroys a patients likelihood of survival
Limited to malpractice cases
Reliability of experts and statistical evidence
A competent party is present on the liability side
There are common issues in the field
Further limited to actual death
Theoretically inconsistent
Not functional as a deterrent
Second step of causation analysis weeding out some of the causes that
we caught in causation-in-fact net
Third Restatement 29 : HWF^R
Harms that result from the risks that made the actors conduct tortious
Rylands v. Fletcher
Two factors: degree of danger posed + commonness in the area
Degree of risk
Degree of harm
Inability to reduce risk exercising reasonable care
Uncommonness
Appropriateness in the area
Theories of SL
Reducing information and error costs
Influencing activity level and research decisions
Promoting insurance / cheapest cost avoidance
Satisfying rights-based norms of responsibility
Negligence v. SL Whats at stake?