A recent product liability case involving foil pans and market share liability is a win for the defendants. In a products liability action, identification of the exact defendant whose product injured the plaintiff is generally required.  Hymowitz v Eli Lilly and Co., 73 NY2d 487, 504 (1989).  Market share liability provides a narrow exception to this general rule. Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 240 (2001).  Under New York's market-share liability theory, first adopted in Hymowitz v. Eli Lilly & Co., a defendant manufacturer may—in limited circumstances—be presumed liable to the extent of its share of the relevant product market.  S.F. v Archer Daniels Midland Co., 594 Fed Appx 11, 13 (2d Cir 2014).  In Hymowitz, the Court of Appeals explained market share liability was necessary because the drug DES was a fungible product and identification of the actual manufacturer that caused the injury to a particular plaintiff was impossible. Nonetheless, the court carefully noted that the DES situation was unique and that key to its decision were the facts that “(1) the manufacturers acted in a parallel manner to produce an identical, generically marketed product; (2) the manifestations of injury were far removed from the time of ingestion of the product; and (3) the legislature made a clear policy decision to revive these time-barred DES claims.” Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 240 (2001) (rejected market share liability against manufacturers of hand guns).  Market share liability, however, “has been sparingly adopted” and “[i]ts application has been largely rejected by the courts primarily on the ground that the product in question was not fungible.”  S.F. v Archer Daniels Midland Co., 594 Fed Appx 11, 13 (2d Cir 2014) (rejected market share liability against manufacturers of high-fructose corn syrup); see also Matter of New York State Silicone Breast Implant Litig., 166 Misc 2d 85, 90 (refused to apply market share liability to silicone breast implants).

In a recent example, a lower court declined to adopt market share liability against manufacturers of foil pans.  Perez v CM Packaging, Inc., Sup Ct, Bronx County, January 19, 2018, Ruiz, J., index No. 20077/2016.  Plaintiff alleged that she was severely burned when a foil pan collapsed causing its contents to spill on her body.  The complaint indicated that the pan was purchased from a discount store.  The pan did not have a label or any warnings, and thus, plaintiff could not identify a specific manufacturer.  She proceeded against various foil pan manufacturers on the market share theory.  She alleged that the pans are generic in nature and thus fungible.  Defendants moved to dismiss pursuant to CPLR § 3211(a)(7).  In support of their motions, the defendants submitted catalogues which demonstrated that the foil pans contain several variables from one variety to the next, such as the strength and dexterity of the metal employed and physical attributes like the ribbing of the sidewalls, which may affect its strength.  The court granted the defendants motions to dismiss and held that foil pans are not fungible and thus declined to apply the market share theory.

Given the strong precedent and the recent court ruling, clients should strongly consider a motion to dismiss in cases where the plaintiff fails to specifically identify their products but tries to proceed on the theory of market share liability.