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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee


United States


The plaintiffs were suing on behalf of hundreds or thousands of women who suffered from cancer after their mothers had taken a drug called DES during pregnancy. Over 200 companies manufactured DES at the time, and it was impossible to know which company had made the pills take by which woman’s mother. There was a further complication in that not all of the potential defendants could be identified, and of those that could, not all of them could be sued in California.


Can a group of defendants be held liable for the damage cause by the fault of one of them?


Yes; they can be held liable in proportion to their share of the market at the time DES was prescribed.


Mosk J. based his decision on the fact that all of the defendants were at fault; it seems fairer that they should bear the cost of the injury rather than the innocent plaintiffs. Mosk J. refused to follow Summers v. Tice (the US equivalent of Cook v. Lewis) and reverse the burden of proof of causation.

Mosk J.’s “market share” approach was based on the policy goal of compensation combined with a desire not to hold one drug company responsible for the faults of the others.


It seems to me that this case should be classified under “unidentified victim” as well as “unidentified wrongdoer.” It’s interesting because it involves a large number of wrongdoers and a large number of victims; the only problem is drawing the individual links between companies and patients. The “market share” approach seems like the fairest approach if one can leave behind notions of individual responsibility and think of it as a problem of collective responsibility.

Market share liability was used a few more times in the US, but soon died out.

This seems like a law-and-economics-derived approach to liability.

J. Weinstein, “Ethical Dilemmas in Mass Tort Litigation” (1994) (excerpt)

Weinstein points out that mass tort cases involving thousands of plaintiffs are more akin to public institutional litigation than to individual tort cases. They are not just about assigning fault and assessing compensation, they are also about people’s health and sense of security and the viability of major economic institutions. They concern the public at large, not just the people before the court. The legal process needs to be modified to match today’s social, economic and technological realities.


The Appropriate Scope of Responsibility

Acts and Omissions

Does the law impose a duty to rescue people in danger (or simply in need of help)?

This begs another important question: Is the law willing to impose positive obligations?

In Stovin v. Wise, Lord Hoffman summarized the three main arguments against positive obligations:

1. a political argument: liberal individualism

2. a moral argument: the “why pick on me” question

3. an economic argument: activities which create risks should bear their own costs

The common law has traditionally found these arguments convincing and refused to impose a duty to act.

There is also the fact that causation is difficult to assess in cases imposing a duty to act.

Civil law has not been convinced by these arguments. It believes in:

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