Article by Andrew R. Klein
This Article asserts that the extension of market share liability principles to blood products litigation is illogical based on the extension's incompatibility with the nature of blood products. More broadly, the Article counsels against replacing traditional causation doctrine with risk-allocation theory in cases that do not involve risk uniformity.
In reaching these conclusions, the Article first traces the development of relaxed causation theory before the creation of market share liability, focusing on Summers v. Tice and its connection to the tradition of individualism. The Article next outlines the development of market share liability in DES litigation, beginning with the theory's inception in Sindell and ending with its denouement in Hymowitz. The Article then considers the Smith decision and asserts that its embrace of market share liability is improper. This section of the Article focuses on the nature of blood products and policy justifications for adherence to the traditional causation rule in blood products litigation. Finally, the Article maintains that compensation based solely on risk allocation is a legislative function and suggests an outline for a legislative alternative that would help compensate individuals injured through the use of blood products.
About the Author
Andrew R. Klein. Assistant Professor of Law, Cumberland School of Law, Samford University. B.A., University of Wisconsin-Madison, 1985; J.D., Emory University, 1988.
Citation
68 Tul. L. Rev. 883 (1994)