## Facts

- Parents alleged their infant daughter suffered severe, permanent brain damage after receiving a DPT (diphtheria-pertussis-tetanus) vaccine.
- They claimed the whole-cell pertussis component contained toxins that could have been removed using available technology, and that defendants’ DPT vaccines were defectively designed and inadequately tested and warned against.
- Because provider records were missing or inadequate, plaintiffs could not identify which manufacturer produced the specific DPT dose administered.
- Plaintiffs sued multiple vaccine manufacturers under negligence, breach of warranty, misrepresentation, and strict products liability.
- To address the inability to identify a specific manufacturer, plaintiffs invoked a collective-liability theory akin to market-share or risk-based liability.

## Issues

1. Whether New Jersey should permit a DPT-vaccine products-liability action to proceed without identifying the specific manufacturer by adopting a form of collective responsibility (e.g., market-share or risk-based liability) for fungible products.
2. Whether dismissal at the interlocutory stage was improper where plaintiffs, despite due diligence, could not identify the manufacturer of the particular vaccine dose.

## Decision

- The Appellate Division reversed the interlocutory dismissal of claims against the pharmaceutical-manufacturer defendants and remanded.
- The court recognized a modified market-share/risk-based collective-liability approach for the DPT-vaccine context when product identification is not possible despite due diligence.
- Under this approach, plaintiffs may proceed against multiple manufacturers, with liability apportioned according to each defendant’s share of the relevant market or contribution to the risk during the relevant period.
- Defendants retain the opportunity to avoid or reduce liability by proving their product could not have caused the injury.

## Legal Principles

- Traditional products-liability doctrine generally requires product identification—proof that a particular defendant made or sold the product that caused the injury.
- For fungible, substantially identical products distributed in a way that predictably impedes later identification, courts may relax strict identification requirements to avoid leaving injured plaintiffs without a remedy.
- A plaintiff seeking collective liability must make a prima facie showing that: (1) the product is fungible/substantially identical across manufacturers, (2) the sued defendants collectively account for a substantial share of the market at the relevant time, and (3) the plaintiff cannot identify the actual manufacturer despite due diligence.
- When collective liability applies, responsibility is several and proportional, based on market share or risk contribution, and defendants may exculpate themselves by showing their product could not have caused the harm.

## Conclusion

The court permitted a DPT-vaccine injury case to proceed despite the plaintiff’s inability to identify the specific manufacturer, adopting a limited, modified market-share framework that apportions liability by market participation or risk contribution while preserving defendant exculpation.


Shackil v. Lederle Lab'ys, 530 A.2d 1287 (N.J. Super. Ct. App. Div. 1987)