Chavers

This appeal requires us to consider the vitality of the idea of “group” or “collective” legal accountability in the products liability context. For well over a quarter century, courts across the nation have struggled with a variety of novel theories under which manufacturers of a defective product could assertedly be held liable in damages to plaintiffs injured by use of or exposure to it. Litigation involving asbestos, tobacco, and DES are prominent examples. Owing to circumstances, the plaintiffs in such cases often were unable to identify the specific manufacturer of the product that allegedly produced their injuries. The rule at common law, of course, placed tort litigants under an un waivable requirement of proving not only a compensable injury but also the identity of the offending manufacturer whose acts caused the plaintiff’s injury. Proof of causation, in other words, is an essential condition for liability in tort.

In the struggle to adjust traditional notions of tort liability to the changing realities of national business practices, five more or less distinct theories have arisen. Under all of them, product manufacturers can be held collectively—and jointly…