Black v. Abex Corp.
603 N.W.2d 182 (1999)
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Rule of Law:
Market share liability is inappropriate for claims involving asbestos-containing products because they are not fungible, varying widely in their composition and the degree of risk they pose. Additionally, alternative liability is inapplicable in asbestos cases where the plaintiff cannot join all potential tortfeasors in the lawsuit.
Facts:
- From 1971 to 1986, Markus Black worked as an auto mechanic in the Air Force.
- In his role, Markus Black was occupationally exposed to asbestos-containing 'friction products,' such as brake and clutch parts, manufactured by numerous companies.
- The asbestos content in the friction products made by the various defendant manufacturers ranged widely, from seven percent to seventy-five percent.
- In 1991, Markus Black died of lung cancer.
- His wife, Rochelle Black, was unable to identify the specific manufacturer of the asbestos-containing product that caused her husband’s illness and death.
Procedural Posture:
- Rochelle Black sued forty-eight asbestos manufacturers in a North Dakota state trial court for wrongful death and survival claims.
- The defendant manufacturers filed a motion for partial summary judgment to dismiss the claims based on market share and alternative liability theories.
- The trial court granted the defendants' motion, dismissing the market share and alternative liability claims in a Pretrial Order.
- Black subsequently settled or voluntarily dismissed all her remaining claims against the defendants.
- The trial court then entered a final 'Concluding Order' disposing of the case.
- Rochelle Black (appellant) appealed the trial court's grant of summary judgment to the Supreme Court of North Dakota.
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Issue:
Does North Dakota law permit a plaintiff in an asbestos exposure case to use the theories of market share liability or alternative liability when the specific manufacturer of the injury-causing product cannot be identified?
Opinions:
Majority - Kapsner, Justice
No. Neither market share liability nor alternative liability can be applied to this asbestos case. For market share liability to apply, the products must be fungible, meaning they are identical and present an equivalent risk of harm. The court found that asbestos-containing friction products, which varied in asbestos content from 7% to 75%, were not fungible and did not create a 'singular risk factor.' This variation in risk makes it inequitable to apportion liability based on a defendant's share of the market. For alternative liability to apply, a plaintiff must join all potential tortfeasors as defendants. Because Black did not, and could not, sue every manufacturer of asbestos products to which her husband might have been exposed, this theory is also inapplicable, as it would be unfair to shift the burden of proof to a small subset of the potentially responsible parties.
Analysis:
This decision aligns North Dakota with the overwhelming majority of jurisdictions in rejecting the application of market share and alternative liability theories to asbestos litigation. The court's reasoning emphasizes that the non-fungible nature of asbestos products and the vast number of potential manufacturers make these burden-shifting doctrines fundamentally unfair to defendants. This ruling creates a significant barrier for asbestos plaintiffs in North Dakota who cannot meet the traditional tort requirement of proving causation against a specific defendant, reinforcing the high value placed on direct causation in product liability law. While the court did not foreclose the possibility of adopting these theories in a different factual context, its analysis signals a strong skepticism toward their use in complex mass torts involving dissimilar products.
