Collective Liability and Product Identification in Kansas

ABSTRACT: The necessity of product identification is one area where there is a scarcity of reported case law, but clear indications that Kansas requires plaintiffs to identify the specific product that caused their alleged harm. No reported Kansas case has ever adopted a "collective liability" theory like enterprise liability, alternate liability, or market share liability.

The volume of reported case law in Kansas tends to be lower than in many other jurisdictions, sometimes resulting in the apparent novelty of legal issues that have long been settled elsewhere. The necessity of product identification is one area where there is a scarcity of reported case law, but clear indications that Kansas law requires plaintiffs to identify the specific product that caused their alleged harm. No reported Kansas case has ever adopted a “collective liability” theory like enterprise liability, alternate liability, or market share liability. We have also obtained summary judgment in favor of a product manufacturer on both enterprise and alternative liability theories.

Causation is an essential element of a product liability claim and a prerequisite to recovery, whether the claim sounds in negligence or in strict liability.  Wilcheck v. Doonan Truck & Equip., Inc., 220 Kan. 230, 235, 552 P.2d 938, 942 (Kan. 1976). For plaintiffs to recover on a product liability claim, the defective product must be both the actual and proximate cause of the injury. Wilcheck, 220 Kan at 235, 552 P.2d at 942.  Actual cause, or “cause-in-fact,” must be established. Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 759 (D. Kan. 1978) (applying Kansas law).  “The mere fact that a person suffered injury while using a product is insufficient in itself to satisfy the requirement of proof that a defect in the product was a proximate cause of the injury.” Wilcheck, 220 Kan. at 235-36, 552 P.2d at 943.

Where a plaintiff fails to adduce sufficient evidence of causation, by linking a defect in the product to the plaintiff’s alleged injuries, plaintiff is not entitled to proceed to a jury on his claims and entry of summary judgment is proper. Wilcheck, 220 Kan. at 238-39, 552 P.2d at 945. The overwhelming majority of jurisdictions agree that, to prove actual and proximate causation of his injuries, a plaintiff must, at a minimum, identify the manufacturer of the allegedly defective product that is claimed to have caused his injuries. See, e.g., Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (D. Kan. 1999) (applying Kansas law). 

The lead Kansas case on product identification is Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348, 360 (Kan. 1983). Mays involved product liability claims brought by a worker injured in an explosion of a gas pipeline. Id., 233 Kan. at 39-40, 661 P.2d at 350-51. Among the components of the gas pipeline system were fiberglass pipe and related products manufactured by defendant Ciba-Geigy, as well as numerous components engineered, manufactured and sold by entities other than Ciba-Geigy. See id. The Supreme Court affirmed the trial court’s grant of summary judgment to Ciba-Geigy on the grounds that the plaintiff in Mays failed to establish the essential elements of his case. The Supreme Court cited with approval the finding of the trial court that:

“plaintiff is unable to negate products by manufacturers other than Ciba-Geigy as being products where a failure occurred. Although there is a possibility that a Ciba-Geigy product failed, there is an equal possibility that a non-Ciba-Geigy product failed.”

233 Kan. at 54, 661 P.2d at 361. 

Not specifically addressed by Mays is the circumstance in which plaintiffs seek to proceed on collective liability theories, naming numerous manufacturer defendants who marketed products of the type that caused injury to plaintiff. No reported Kansas case has adopted any of these theories, however, which have gotten stale with the passage of time.

Other jurisdictions that have considered cases where a plaintiff cannot identify the particular product that caused him injury have overwhelmingly held that such plaintiff’s product liability claims should be dismissed as a matter of law, because proof of the identity of the product that allegedly caused injury is a “fundamental principle” of product liability law and is necessary for plaintiff to prove cause-in-fact and proximate cause. See, e.g., Smith v. Eli Lilly & Co., 560 N.E.2d 324, 328 (Ill. 1990); Mathers v. Midland-Ross Corp., 532 N.E.2d 46, 49 (Mass. 1989); Case v. Fibreboard Corp., 743 P.2d 1062, 1064 (Okl. 1987); Abel v. Eli Lilly & Co., 343 N.W.2d 164, 170 (Mich. 1984); Namm v. Charles E. Frosst and Co., Inc., 427 A.2d 1121, 1125 (N.J. Super. App. Div. 1981); Roehling v. National Gypsum Co. Gold Bond Building Prods., 786 F.2d 1225, 1226 (4th Cir. 1986); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985) (applying Georgia law); Bryant v. Tri-County Elec. Membership Corp., 844 F. Supp. 347, 354 (W.D. Ky. 1994); Pipon v. Burroughs-Wellcome Co., 532 F. Supp. 637, 638 (D.N.J. 1982); Gray v. United States, 445 F. Supp. 337, 338 (S.D. Tex. 1978).

Arguing a combination of Mays and the abundant reported case law on product identification in other jurisdictions seems to be a winning formula. The Kansas courts have not adopted theories of enterprise, alternative, or market share liability, and at this time there is no indication that the courts would be inclined to accept such theories.