Metropolitan News-Enterprise


Friday, April 18, 2003


Page 1


C.A. Rejects ‘Market Share’ Liability in Asbestos Exposure Case


By KENNETH OFGANG, Staff Writer/Appellate Courts


The First District Court of Appeal has declined to extend the “market share” theory of tort liability to a case involving exposure to asbestos fibers.

Div. Four Wednesday ordered publication of a March 28 opinion upholding a judgment in favor of Gatke Corporation, a former manufacturer of asbestos-containing products, including friction brake shoes.

Gatke was one of a number of companies sued by the widow and two children of Harley Ferris, who died four years ago of mesothelioma, a cancer thought to be caused by inhalation of asbestos particles.

The plaintiffs theorized that Ferris was exposed to asbestos while working in naval shipyards and around other sources of the mineral and while replaced friction brake shoes on his and other people’s automobiles, something he did for close to 40 years.

They argued that even though they could not prove Ferris had been exposed to any Gatke product, the company should be held liable in proportion to its share of the market for friction brake shoes during that period.

Sindell Cited

They cited Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 in which the California Supreme Court held that market share liability could be imposed on manufacturers of DES, a fertility drug that became the subject of thousands of claims after being linked to cancerous growths in women whose mothers had taken it during pregnancy.

Under the court’s ruling, each manufacturer of the drug could be held liable for each plaintiff’s damages in proportion to its share of the national DES market unless it could prove that it did not manufacture the DES ingested by the plaintiff’s mother.

The late Justice Stanley Mosk, writing for the court, cited a 1948 decision in which the court held that where two hunters negligently fired birdshot in the same direction, injuring the plaintiff, the plaintiff should be allowed to recover from either or both of them, rather than be denied a remedy for lack of proof as to which of the pair fired the shot that actually hit the plaintiff.

San Francisco Superior Court Judge Tomar Mason granted Gatke’s motion to exclude evidence supporting a market share theory of liability, and later granted the company a nonsuit.

Justice Patricia Sepulveda, writing for the Court of Appeal, said the trial judge was correct.

Market share liability should not be applied in asbestos cases, except where they are factually analogous to the drug cases, Sepulveda reasoned.

DES Different

In the DES cases, she explained, all of the companies had produced essentially the identical product—they had all made the drug from the same formula. Unless an asbestos plaintiff was injured by exposure to a specific, similarly fungible product, Sepulveda said, “Sindell’s burden-shifting ‘market share’ theory” should not be applied.

The justice distinguished Wheeler v. Raybestos-Manhattan (1992) 8 Cal.App.4th 1152, in which the court held that market share liability might apply if the plaintiffs could prove their claim that their injuries resulted from exposure to a single type of asbestos fiber manufactured by all three of the defendants they had named.

According to the pleadings, Sepulveda noted, Ferris had been exposed to asbestos dust for a number of years during which he would not have been exposed to Gatke products. In addition, the jurist pointed out, Ferris was able, before his death, to identify two of the manufacturers whose products he was exposed to.

Market share liability, the justice went on to say, is an “extraordinary departure from conventional tort law doctrine, with its Aristotelian conception of causation,” and should be applied “with great caution” under circumstances that “are truly compelling.”

The case is Ferris v. Gatke Corporation, 03 S.O.S. 1940.


Copyright 2003, Metropolitan News Company