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Poole v. Alpha Therapeutic Corp. - 696 F. Supp. 351 (N.D. Ill. 1988)

Rule:

It is possible that cases may arise in which some modification of the rule of alternative liability may be necessary because of complications arising from the fact that one of the actors involved is not or cannot be joined as a defendant, or because of the effect of lapse of time, or because of substantial differences in the character of the conduct of the actors or the risks which they have created.

Facts:

From 1975 until 1987, Stephen Poole, a hemophiliac, purchased and internally injected an antihemophilic factor known as factor VIII; thereafter, Poole contracted Acquired Immune Deficiency Syndrome (AIDS) and died on July 10, 1987. Plaintiffs, Poole’s surviving relatives, filed a complaint seeking to hold the defendants, i.e., complete market of manufacturers, processors, marketers and distributors, liable for Poole’s death. Plaintiffs moved to add counts IX and X to their amended complaint, specifically labeling the counts as “Market Share Liability” claims. In these counts, plaintiffs asserted that from 1982 to 1985 defendants solicited donors known to have a high risk of contracting AIDS without informing Poole of this risk, and that they marketed improperly-treated factor VIII products, despite the fact that they knew that these products could lead to the contraction of AIDS. Plaintiffs further asserted that while they have identified all those defendants from whom decedent purchased factor VIII, they "cannot identify with certainty the manufacturer or manufacturers that marketed the Anti-hemophilic Factor responsible for the AIDS virus transmitted to Poole." The proposed counts sought damages based on the respective market share of each defendant and asserted theories of liability that would allocate the burden of proof in such a way that each defendant would be required to show that its product did not cause Poole's death.

Issue:

Should the plaintiffs be allowed to amend their complaint to include additional theories of recovery from defendant corporations?

Answer:

Yes, but only as to the theory of alternate liability.

Conclusion:

The federal district court determined that theory of liability was not applicable because the relatives had identified all alleged guilty parties. The court declined to adopt the market share theory of liability. As to the concerted action theory of liability, the court ascertained that the relatives had failed to allege that the corporations pursued a common plan or tacitly agreed to commit the tortious acts about which the relatives complained of. Moreover, the court held the complaint was wholly devoid of assertions necessary to sustain a concerted action claim. The court allowed the relatives to proceed on the theory of alternate liability. In sum, the court granted the motion to include the theory of alternate liability and denied the motion to amend the complaint to include the market share and concerted action liability recovery theories.

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