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Suffolk Cty. Water Auth. v. Dow Chem. Co. - 2014 NY Slip Op 24155, 44 Misc. 3d 569, 987 N.Y.S.2d 819 (Sup. Ct.)

Rule:

For purposes of "market share liability," judicial action is necessitated with respect to some products in order to overcome the inordinately difficult problems of proof caused by generically fungible products which were defective from their inception, where the harm caused by the same did not occur until substantial time had passed since use. Under such circumstances, equity requires that where the injury remained dormant for such a long period and where manufacturers contributed to the devastation, the ever-evolving dictates of justice and fairness, which are the heart of the common-law system, require formation of a remedy for injuries caused by the defective product.

Facts:

Plaintiff sued defendants manufacturer and distributor based on "market share liability" doctrine and asserted that it suffered environmental damage due to perchloroethylene (PCE). Defendants moved to dismiss based on the inability of the plaintiff to identify each precise defendant whose allegedly defective product injured the plaintiff and how the conduct of such party was the "cause-in-fact" of such injury.

Issue:

Does the failure of the plaintiff to identify each precise defendant whose allegedly defective product was the "cause-in-fact" of the plaintiff's injur warrant the dismissal of the complaint?

Answer:

No.

Conclusion:

The motion was denied. The court held that the plaintiff sufficiently pleaded that the use of "market share liability" regarding environmental damage allegedly caused by the manufacturers of perchloroethylene (PCE) was appropriate because the plaintiff alleged, inter alia, PCE was defective from the moment of manufacture, PCE was a generically fungible product, identification of the exact manufacturer was impossible, the injury to the CWA's wells took years to occur, and it was reasonably foreseeable that PCE would cause harm to the groundwater system.

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