Hawaii Adopts Market Share Theory
夏威夷最高法院在血友病患者因输血感染艾滋病而起诉多家制造商的产品责任案中，采纳了市场份额理论，允许原告在无法确定具体侵权人时追究所有制造商的连带责任。
In a detailed discussion of the various theories for proving who caused an injury in a negligence case, the Hawaii Supreme Court approved the use of market share liability. Smith, the plaintiff in the case, sued several manufacturers of Antihemophilic Factor Concentrate (AFT) after he became infected with acquired immune deficiency syndrome (AIDS). Smith was a hemophilic and received AIDS-infected AFT to enable his blood to coagulate properly in 1983 or 1984. The manufacturers made the AFT from donated blood. Because Smith could not identify the manufacturer of the tainted AFT, the trial court granted judgment for the manufacturers. Smith appealed, and the federal court of appeals certified the issue of causation to the Hawaii Supreme Court for a determination of whether state recognized market share liability. The supreme court concluded that Smith could use a theory of market share liability to pursue his claim for negligence. Although a state statute prevented the application of strict product liability to Smith's claims, it did not preclude actions for one's own negligence or willful misconduct. The manufacturers argued that the exception required proof of individual causation. The court rejected this argument on two grounds. First, the argument would have left no room for cases in which there were several tortfeasors. Second, the legislative history of the law did not support the manufacturer's argument. Having found the statute did not preclude the claim, the court next addressed whether state tort law recognized a negligence claim without an identification of a specific tortfeasor. The manufacturers argued that cases based on tainted blood were different from other cases recognizing some form of market share liability. First, the number of companies was small. Second, the product was not inherently defective as was diethylstilbestrol (DES), the source of many market share cases. The court rejected both arguments, but only after finding other theories of joint liability should not be available. First, the court rejected the theory of alternative liability. In an alternative liability case, all the defendants act negligently simultaneously and the harm results from one of them. All responsible parties must be joined, and then it is up to each defendant to show that it did not cause a harm. If it fails to do so, it is jointly and severally liable for all the damage. The alternative liability theory was not applicable since the manufacturers did not act simultaneously and Smith may not joined all the potential defendants. Second, the court rejected liability based on concerted action. The concerted action theory is premised on the planned action of several parties and is similar to aiding and abetting in criminal law. …