DC v Beretta: Count V in the Superior Court

Count V: Collective Liability Theory of Damages

Even if all the substantive causes of action had been pleaded sufficiently as against each defendant, the Complaint must be dismissed to the extent that plaintiffs seek anything other than individualized liability of each defendant. In other words, this case is not pleaded in such a way as to erect a lawful demand for damages based on the concept of ?market share liability? or any other iteration of this theory. There is ample case law to demonstrate this point, and it totally favors the defendants.

Key to our decision were the facts that (1) the manufacturers acted in a parallel manner to produce an identical, generically marketed product; (2) the manifestations of injury were far removed from the time of ingestion of the product; and (3) the Legislature made a clear policy decision to revive these time-barred DES claims.

Circumstances here are markedly different. Unlike DES, guns are not identical, fungible products.  Significantly, it is often possible to identify the caliber and manufacturer of the handgun that caused injury to a particular plaintiff. Even more importantly ? given the negligent marketing theory on which plaintiffs tried this case? plaintiffs have never asserted that the manufacturers?marketing techniques were uniform. Each manufacturer engaged in different marketing activities that allegedly contributed to the illegal handgun market in different ways and to different extents. Plaintiffs made no attempt to establish the relative fault of each manufacturer, but instead sought to hold them all liable based simply on market share.