In re DES Market Share Litigation

I respectfully dissent for the reasons stated at Supreme Court. I would add only that the initial determination with respect to the percentage of market share of each defendant is, as the majority states, an alternative method of identifying the defendant whose product injured the plaintiffs. Because this is a narrow preliminary issue that involves a party’s status, there is no constitutional right to a jury trial (see, Matter of Erlanger, 136 Misc 784, affd 229 App Div 778; see also, Shippey v Berkey, 6 AD2d 473). The right to trial by jury provided in "Section 425, C.P.A. [now CPLR 4101…