Transcript 藥害責任
藥害責任 楊智傑 懷孕期間因使用DES而得癌 • In Sindell, the plaintiff, a young woman, claimed to have contracted cancer as a result of prenatal exposure to the drug DES. She sued some, but not all, of the manufacturers who had sold DES for use by pregnant mother. The defendants were shown to have been negligent in testing and marketing the drug, but it was impossible to establish which manufacturer had made the dosages that were taken by the plaintiff’s mother a generation earlier. 市場份額責任 • Adopting a novel doctrine of “market-share liability,” which shifted to the defendants the burden of disproving factual causation, the court held that the plaintiff’s complaint stated a cause of action. • In taking this step, the court first determined that other doctrines (in particular, alternative liability 連帶責任 and enterprise liability聯營責任) were incapable of resolving the dilemma. 市場份額責任 • It provided that if a defendant failed to show that it could not have produced the particular dosages consumed by the palintiff’s mother, it would be liable only for that proportion of the judgement equivalent to that defendant’s share of the overall DES market. Hence the term “market-share liability” 就算自己沒賣也不能免責 • Furthermore, the Hymowitz court held that a manufacturer who distributed the drug for use by pregnant mothers could not avoid liability by proving that it did not make the dosages of the drug which had harmed the plaintiff. The court wrote: “It is merely a windfall for a producer to escape liability solely because it manufactured a more identifiable pill, or sold to certain drugstores. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here. 有限連帶責任 • In addition, the New York court determined that under its approach to market-share liability, “liability of DES producers is several only, and should not be inflated when all participants in the market are not before the court in a particular case.” 兩方都無法滿足 • Thus, the court embraced a compromise position pursuant to which neither side in the litigation gained everything that it wanted: a defendant might be held liable although it did not make the pill taken by the plaintiff’s mother, and the plaintiff would probably be unable to recover the full amount of her damages.