Liability For a Product That You Did Not Make –
Collective Liability And Lead Paint Litigation
John B. Isbister
Jaime W. Luse
Tydings & Rosenberg LLP
100 East Pratt Street
26th Floor
Baltimore, Maryland 21202
www.tydingslaw.com
John B. Isbister is a partner with the firm of Tydings & Rosenberg
LLP. He is the partner-in-charge of the firm’s products liability, toxic tort
and environmental litigation practice. He has successfully defended
products liability cases in courts in Maryland and the other mid-Atlantic
states involving multiple chemical-sensitivity claims, repetitive-stress injury
claims, chemicals, lead paint, pharmaceuticals, toys, exercise equipment,
consumer-electronics products, industrial machinery, automobiles, and
building products.
Jaime W. Luse is an associate in the litigation department at
Tydings & Rosenberg LLP. Ms. Luse is a graduate of the University of
Baltimore School of Law. Prior to joining Tydings & Rosenberg LLP, she
served as a law clerk for The Honorable Arrie Davis of the Court of
Special Appeals of Maryland. She is admitted to practice in the State of
Maryland and the Commonwealth of Virginia. Her areas of concentration
include commercial and general civil litigation.
I.
Introduction
A fundamental principle of tort liability is that a plaintiff must prove
that his injury was caused by the defendant. This requires, inter alia, that
the plaintiff name the defendant, identify the tortious conduct, and show
the nexus between that conduct and the claimed injury. The purpose of
requiring a plaintiff to establish causation is to limit the scope of potential
liability “to those causes which are so closely connected with the result
and of such significance that the law is justified in imposing liability.” W.
Page Keeton, et al., Prosser & Keeton on Torts 264 (5th ed. 1984). When
faced with certain fact patterns, however, courts have fashioned theories
of collective liability that relieve the plaintiff, to varying degrees, of the
need to identify the tortfeasor who proximately caused his injury. These
judicially created theories shift the burden of proof to each defendant (in
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the group on which liability has been collectively imposed) to demonstrate
that the plaintiff’s injury was not caused by that defendant’s negligence—
in most circumstances a difficult, if not impossible, burden.
The most commonly employed theories of collective liability include
“alternative liability,” “concert of action liability,” “enterprise liability,” and
various forms of “market share liability,” including risk-contribution. While
plaintiffs have sought to use these theories in many circumstances, courts
have generally rejected or restricted the use of collective liability theories.
See Richard E. Kaye, Annotation, “Concert of Activity,” “Alternate
Liability,” “Enterprise Liability,” or Similar Theory as Basis for Imposing
Liability Upon One or More Manufacturers of Defective Uniform Product, in
Absence of Identification of Manufacturer of Precise Unit or Batch Causing
Injury, 63 A.L.R. 5th 195 (1998).
In particular, for many years courts have rejected the application of
collective liability theories in products liability suits brought against
manufacturers of lead paint (the “lead paint litigation”). But defendants in
such suits now face the very real prospect that they may be found liable
for a product that they did not make. A recent decision by the Wisconsin
Supreme Court, Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005), holds
that manufacturers may be sued under a “risk-contribution” theory of
liability in the absence of proof that a particular manufacturer’s product
caused the plaintiff’s injuries. The risk-contribution theory is one of the
many judicially-created theories of collective liability that abandon the
requirement of proximate causation when a plaintiff cannot identify the
specific manufacturer of a defective product. This article will first examine
the evolution of several theories of collective liability, and discuss how
these theories have been applied in the context of products liability actions
in general, and lead paint products liability actions in particular. It will then
examine the Wisconsin Supreme Court’s recent decision, and the impact
that the decision may have in the future.
II.
Theories of Collective Liability
A.
Alternative Liability
Alternative liability provides a method for a plaintiff to establish
causation when the traditional rules of causation would prevent recovery.
Under this theory of liability, initially adopted by the California Supreme
Court in Summers v. Tice, 199 P.2d 1 (Cal. 1948), when two or more
tortfeasors simultaneously commit independent acts of negligence, and
only one act results in injury, the plaintiff is relieved of his burden of proof
with respect to causation, and may sue both without direct proof of
causation. See Restatement (Second) of Torts § 433B (1979). Instead,
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the burden shifts to the defendants to exculpate themselves. Explaining
the rationale behind its burden-shifting rule, the Summers court stated:
When we consider the relative position of the
parties and the results that would flow if plaintiff
was required to pin the injury on one of the
defendants only, a requirement that the burden
of proof on that subject be shifted to
defendants becomes manifest. They are both
wrongdoers -- both negligent toward plaintiff.
They brought about a situation where the
negligence of one of them injured the plaintiff,
hence it should rest with them each to absolve
himself if he can.
Summers, 199 P.2d at 4.
Alternative liability is not always available. The theory is applicable
only if all possible wrongdoers have been brought before the court.
Failure to join all possible defendants precludes a plaintiff from recovering
under an alternative liability theory. See Gaulding v. Celotex Corp., 772
S.W.2d 66, 69 (Tex. 1989) (“When a plaintiff fails to join all possible
defendants, alternative liability does not apply.”).
Use of the alternative liability theory in the context of a products
liability case was attempted in the diethylstilbestrol (“DES”) cases. DES is
a synthetic estrogen that was discovered in the 1930s. See Abel v. Eli
Lilly & Co., 343 N.W.2d 164, 166 (Mich. 1984). The drug was initially
marketed for non-pregnancy uses; however, in 1947, the Food and Drug
Administration ( “FDA”) approved requests from several companies to
market DES for use in preventing pregnancy complications. Id.
Thereafter, the drug was generically marketed for use by pregnant
women. Id.
DES remained on the market for twenty-four years; during this time
approximately 300 different companies manufactured and distributed the
drug. In 1971, researchers discovered a link between DES and cancer,
leading the FDA to prohibit the use of DES for pregnancy-related
complications. Id. at 167. Injuries from DES have generally been limited
to women who were exposed in utero to DES (the “DES daughters”).
While the DES daughters are usually able to show that their mothers’ use
of DES caused their injuries, they typically find themselves unable to
prove which manufacturer produced the DES to which they were exposed.
The dilemma is compounded by practical proof problems: production of
DES in a generic form, the number of manufacturers or marketers, the
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nonexistence or inability to locate pertinent records, and the passage of
time between the plaintiffs’ exposure and the manifestation of cancer.
See Collins v. Eli Lilly Co., 342 N.W.2d 37, 42-43 (Wisc. 1984).
Courts have generally declined to apply the alternative liability
theory in DES and asbestos cases. See, e.g., Morton v. Abbott Labs., 538
F. Supp. 593 (M.D. Fla. 1982); Starling v. Seaboard Coastline R.R. Co.,
533 F. Supp. 183 (S.D. Ga. 1982); Ryan v. Eli Lilly & Co., 514 F. Supp.
1004 (D.S.C. 1981); Sindell v. Abbott Labs., 607 P.2d 924 (Cal. 1980);
Namm v. Charles E. Frosst & Co., Inc., 427 A.2d 1121 (N.J. Super. 1981).
Only the Michigan Supreme Court, in Abel v. Eli Lilly & Co., 343 N.W.2d
164 (Mich.1984), has applied the alternative liability theory to a DES case.
In Hall v. E.I. DuPont de Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y.
1972), the court recognized alternative liability as a burden-shifting device,
but limited its application to breaches of duty that are "substantially
concurrent in time and of a similar nature." Id. at 380.
B.
Concert of Action Liability
The concert of action theory of liability, a derivation of vicarious
liability, stems from the criminal concept of aiding and abetting. Under the
theory of concerted action, Party A is responsible for the acts of Party B if
Party A
(a)
does a tortious act in concert with the
other or pursuant to a common design
with [it], or
(b)
knows that the other’s conduct
constitutes a breach of a duty and gives
substantial assistance or
encouragement so to conduct [itself], or
(c)
give substantial assistance to the other
in accomplishing a tortious result and
[its] own conduct, separately
considered, constitutes a breach of duty
to the third person.
Restatement (Second) of Torts § 876 (1979). Proof of a common plan,
design, or express agreement alone is insufficient for recovery under a
concert of action theory. For concert of action liability to apply, the plaintiff
must demonstrate that the defendants participated in acts of a tortious
character in carrying out the plan or agreement. Id. cmt. b.
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Participation in a “drag race” is often cited as an example of
concerted action, when two drivers agree to race and one collides with
and injures a third party. One driver is clearly the cause-in-fact of the
accident, but other participating drivers will be held jointly liable for the
injury.
A few courts have applied the theory of concert of action in the
context of DES cases. See, e.g., Abel, 343 N.W.2d at 176 (holding all
DES manufacturers jointly and severally liable if unable to exculpate
themselves); Bichler v. Eli Lilly & Co., 436 N.E.2d 182 (N.Y. 1982)
(“Concerted action” theory became controlling law of case as a result of
DES manufacturer’s failure to move to dismiss complaint for failure to
state a claim), overruled by Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069,
1073 (N.Y. 1989). But see Ryan, 514 F. Supp. at 1015 (rejecting
application of concerted action theory of liability against DES
manufacturers). Further, courts have generally declined to apply the
concert of action theory in asbestos litigation. See, e.g., Marshall v.
Celotex Corp., 651 F. Supp. 389 (E.D. Mich. 1987); Ford Motor Co. v.
Wood, 703 A.2d 1315 (Md. App. 1998). But see In re Asbestos Litig., 986
F. Supp. 761 (S.D.N.Y. 1997) (approving jury’s finding of concerted action
when evidence suggested asbestos manufacturer acted in concert with
other tortfeasors to suppress scientific work that indicated risks of
asbestos).
C.
Enterprise Liability
The concept of enterprise liability, an extension of the theory of
concert of action, arose in the context of the blasting-cap industry in Hall v.
E.I. du Pont de Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972). In
Hall, thirteen children injured in accidents with blasting caps filed suit
against six manufacturers, comprising virtually the entire blasting cap
industry in the United States, and their trade association. The plaintiffs
were unable to link a particular manufacturer to any individual injury.
Nonetheless, the court declined to dismiss the plaintiffs’ claims, and
held that “[p]laintiffs’ allegations of joint knowledge and action raise[d]
issues of fact and law sufficient to defeat dismissal.” Id. at 386.
Defendants who could not exonerate themselves would be held jointly and
severally liable if they had adhered to an unreasonable, industry-wide
safety standard set by their trade association. The plaintiffs could prevail
by demonstrating that the defendants were jointly aware of the risks at
issue and possessed a joint capacity to reduce or affect those risks, and
that it was more probable than not that an injury was caused by a product
manufactured by one of the named defendants. Id. at 378-79.
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The court in Hall emphasized that enterprise liability should be
restricted to those highly centralized industries composed of a small
number of manufacturers. Id. at 378. The California Supreme Court has
agreed with that limitation, and has refused to apply enterprise liability in a
DES case on the basis that the industry was too large and decentralized.
See Sindell, 607 P.2d at 935. When confronted with whether to apply
enterprise liability in DES cases, other courts have rejected the theory,
because enterprise liability requires a greater degree of industry-wide
cooperation than that which existed in the DES industry. See Mulcahy v.
Eli Lilly & Co., 386 N.W.2d 67, 70-71 (Iowa 1986); Zafft v. Eli Lilly & Co.,
676 S.W.2d 241, 245 (Mo. 1984); Martin v. Abbot Labs., 689 P.2d 368,
379 (Wash. 1984).
D.
Market Share Liability
The theory of market share liability, an extension of alternative
liability, was first adopted by the California Supreme Court in the DES
case Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980). Similar to
alternative liability, an underlying philosophy of market share liability is that
as between negligent defendants and an innocent plaintiff, the former
should carry the cost of the injury. Although market share liability
embodies the concept of alternative liability, it eliminates the prerequisite
of contemporaneous negligent acts and the requirement of joining all
possible tortfeasors.
In Sindell, the plaintiffs filed a class action against eleven drug
manufacturers, alleging that the defendants were jointly liable because
they acted in concert to produce, market, and promote DES as a
miscarriage preventative. Due to the latent nature of the injury and the
fact that at least two hundred manufacturers produced the drug from a
generic formula that doctors prescribed interchangeably, the plaintiffs
could not identify which defendants had manufactured the DES
responsible for their injuries. The plaintiffs’ inability to establish the
identity of the precise drug ingested by their mothers led the trial court to
dismiss all claims.
On appeal, the California Supreme Court declined to apply any of
the then-existing theories of collective liability. Alternative liability was
unavailable because all potential tortfeasors had not been joined. Id. at
931. Concert of action was held inapplicable because the plaintiffs had
not alleged a tacit understanding or a common plan among the
defendants. Id. at 933. And enterprise liability was ruled inappropriate as
a result of the considerable number of DES manufacturers and
defendants’ lack of joint control over the risk of harm. Id. at 935.
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Rather than apply one of the existing theories of collective liability,
the court fashioned a new theory, and reversed the trial court’s decision.
The new theory – market share liability – evolved from a recognition that in
a “contemporary complex industrialized society, advances in science and
technology create fungible goods which may harm consumers and which
cannot be traced to any specific producer.” Id. at 936. Under the new
theory, the plaintiffs’ burden of proof was limited to identifying an injury
caused by a fungible product, and demonstrating that it had joined
manufacturers representing a “substantial share” of the DES market.
Once these two elements were established, the burden would shift to the
defendant to prove that it could not have manufactured the DES ingested
by plaintiff’s mother. Any defendant that was unable to exonerate itself
would be held severally liable for an amount of the judgment proportionate
to its share of the market at the time plaintiff’s mother ingested the drug.
Id. at 936-37.
The Sindell court supported its newly-created theory on several
grounds. First, by joining a substantial share of the appropriate market,
“the injustice of shifting the burden of proof to defendants to demonstrate
that they could not have made the substance which injured plaintiff is
significantly diminished.” Id. at 937. Second, the court cited a policy
consideration -- that justice prefers to see negligent defendants bear the
cost of an innocent plaintiff’s injury. Id. at 936. Finally, the court reasoned
that imposing liability on manufacturers would provide an incentive to
produce safer products and affix clear warnings of potential harmful
effects. Id.
E.
The Aftermath of Sindell
Most states have been unwilling to embrace the California court’s
formulation of market share liability in the context of DES litigation. See,
e.g., Wood v. Eli Lilly & Co., 38 F.3d 510 (10th Cir. 1994) (applying
Oklahoma law); Smith v. Eli Lilly & Co., 560 N.E.2d 324 (Ill. 1990);
Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986); Sutowski v. Eli Lilly
& Co., 696 N.E.2d 187 (Ohio 1998); Gorman v. Abbott Labs., 599 A.2d
1364 (R.I. 1991). However, a few courts have adopted modified versions
of the Sindell holding. For example, the Washington, Florida, and New
York courts have adopted some form of market share liability in DES
cases, but their approaches differ with respect to the requirement of a
“substantial share” and in apportioning damages among defendants.
In 1984, the Washington Supreme Court in Martin v. Abbot Labs.,
689 P.2d 368 (Wash. 1984), rejected the original, Sindell, formulation and
developed its own version known as “market share alternate liability.” See
also McCormack v. Abbot Labs., 617 F. Supp. 1521 (D. Mass. 1985)
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(adopting the market share alternative liability theory advanced in Martin).
The Martin court’s rejection was based on the failure in Sindell to define
“substantial market share.” Consequently, the Martin court did not require
joinder of a substantial share of the market. Further, the Martin court
declared that the Sindell theory was problematic in that less than 100% of
the market would be required to bear 100% of the cost of plaintiff’s
injuries.
Under the Martin court’s theory, the plaintiff must allege and prove
that: (1) the plaintiff’s mother took DES; (2) DES caused the plaintiff’s
subsequent injuries; (3) the defendant produced the type of DES taken by
the plaintiff’s mother; and (4) the defendant’s conduct in producing or
marketing the DES constituted a breach of a legally recognized duty to the
plaintiff. Martin, 689 P.2d at 381. In order for an individual defendant to
exculpate itself, the defendant must establish “that [it] did not produce or
market the particular type of DES taken by the plaintiff’s mother; that [it]
did not market the DES in the geographic market area of the plaintiff’s
mother’s obtaining the drug; or that [it] did not distribute DES in the time
period of the plaintiff’s mother’s ingestion of the drug.” Id. at 382.
Under Martin, defendants that are unable to exculpate themselves
using these criteria are liable to the plaintiff for damages. The liable
defendants are presumed to hold equal shares in the market and,
consequently, are liable only for the percentage of the judgment
representing their presumptive (that is, equal) shares of the market. Each
defendant is entitled to rebut this presumption and, in turn, reduce its
potential liability, by establishing its actual respective share of the DES
market in the plaintiff’s geographic market. Id. at 383.
The Florida Supreme Court adopted the Martin approach, with
minor variation, in Conley v. Boyle Drug Co., 570 So. 2d 275 (Fla. 1990).
The Conley court added a requirement that a plaintiff must show a
genuine attempt to locate the actual manufacturer before the could would
apply the market share theory. Further, the court limited the use of market
share liability to negligence cases only, specifically holding that the theory
is not applicable to strict liability actions. Id. at 286.
In 1989, the New York Court of Appeals adopted a broad and
liberal market share theory of liability based on a national market. See
Hymowitz v. Eli Lilly & Co., 539 N.E. 2d 1069 (N.Y. 1989). The court’s
version of market share differs from the original version in that it does not
allow individual defendants to exculpate themselves by affirmatively
demonstrating that the plaintiff’s mother did not ingest a particular
manufacturer’s DES. Instead, a defendant is absolved from liability only if
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it proves that it never marketed DES for use during pregnancy. Id. at
1078.
A handful of courts have applied the market share liability theory to
a limited number of other products. See, e.g., In re: Methyl Tertiary Butyl
Ether Prods. Liab. Litig., 379 F. Supp. 2d 348 (S.D.N.Y. 2005) (allowing
different plaintiffs from different states to pursue their claims under various
forms of the market share liability theory in multi-district litigation
concerning contamination of groundwater from a gasoline additive); Ray
v. Cutter Labs., Div. Of Miles, Inc., 754 F. Supp. 193 (M.D. Fla. 1991)
(approving application of market share alternate liability theory to claims of
plaintiffs who allegedly contracted AIDS from infected blood products);
Morris v. Parke, Davis & Co., 573 F. Supp. 1324 (C.D. Cal. 1983)
(applying market share liability to plaintiff’s claims concerning defective
diphtheria-pertussis-tetanus (DPT) vaccine where all of the defendants’
DPT vaccines were defective); Smith v. Cutter Biological, Inc., 823 P.2d
717 (Haw. 1991) (approving modified theory of market share liability in a
case involving a blood product needed by hemophiliacs). But see
Sheffield v. Eli Lilly & Co., 144 Cal. App. 3d 583, 92 Cal. Rptr. 870 (1983)
(declining to apply market share liability to claim for defective polio vaccine
when plaintiff was unable to identify responsible defendant).
The overwhelming majority of courts confronted with the issue have
held market share liability is inappropriate in cases alleging injury from
exposure to asbestos. See, e.g., Robertson v. Allied Signal, Inc., 914
F.2d 360, 380 (3d Cir. 1990); White v. Celotex Corp., 907 F.2d 104, 106
(9th Cir. 1990); Blackston v. Shook & Fletcher Insulation Co., 764 F.2d
1480, 1483 (11th Cir. 1985); In re Asbestos Litig., 509 A.2d 1116, 1118
(Del. Super. Ct. 1986); Celotex Corp. v. Copeland, 471 So. 2d 533, 53739 (Fla. 1985); Leng v. Celotex Corp., 554 N.E.2d 468, 470-71 (Ill. App.
Ct. 1990); Sholtis v. Am. Cyanamid Co., 568 A.2d 1196, 1203-05 (N.J.
Super. Ct. App. Div. 1989); Goldman v. Johns-Manville Sales Corp., 514
N.E.2d 691, 700-01 (Ohio 1987); Case v. Fibreboard Corp., 743 P.2d
1062, 1064-67 (Okla. 1987); Gaulding v. Celotex Corp., 772 S.W.2d 66,
70-71 (Tex. 1989). But see Hardy v. Johns-Manville Sales Corp., 509 F.
Supp. 1353 (E.D. Tex. 1981), rev’d in part on other grounds, 681 F.2d 334
(5th Cir. 1982) (holding that the Texas courts would adopt some form of
market share liability in asbestos-related litigation). Courts commonly
reason that market share liability, or any version thereof, is unsuitable for
asbestos litigation because asbestos is not a fungible product, as
evidenced by the broad range of asbestos-containing products, the
varying types and amounts of asbestos in those products, and the varying
degrees of risk posed by those products. Indeed, asbestos is not even a
“product,” but instead is a generic name for a family of minerals.
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Goldman, 514 N.E.2d at 700. As the court in In re Related Asbestos
Cases, 543 F.Supp. 1152, 1158 (N.D. Cal. 1982), explained:
After careful consideration of the issue, it is
concluded that the market share liability theory
was not intended to be applied in a context
such as the one which is before the court.
Where asbestos is the product in question,
numerous factors would make it exceedingly
difficult to ascertain an accurate division of
liability along market share lines. For example,
unlike DES, which is a fungible commodity,
asbestos fibers are of several varieties, each
used in varying quantities by defendants in
their products, and each differing in its harmful
effects. Second, defining the relevant product
and geographic markets would be an
extremely complex task due to the numerous
uses to which asbestos is put, and to the fact
that some of the products to which the plaintiffs
were exposed were undoubtedly purchased
out of state sometime prior to the plaintiffs’
exposure. A third factor contributing to the
difficulty in calculating market shares is the fact
that some plaintiffs were exposed to asbestos
over a period of many years, during which time
some defendants began or discontinued
making asbestos products.
F.
Collins v. Eli Lilly Co.
In Collins v. Eli Lilly Co., 342 N.W.2d 37, 49 (Wisc. 1984), the
Supreme Court of Wisconsin announced a new theory of collective liability
– risk contribution – which, as discussed below, the court would eventually
expand to lead paint litigation in Thomas, 701 N.W.2d 523 (Wis. 2005).
The Collins court declined to apply the Sindell version of market share
liability due to the “practical difficulty of defining and proving market
share.” Id. at 49. Instead the court adopted a risk-based approach to
market share liability that purports to apportion liability based on the
amount of risk a defendant created that the plaintiff would be injured, with
market share being a relevant factor in this inquiry.
The plaintiff in Collins alleged injuries caused by in utero exposure
to DES. The plaintiff was unable to identify the manufacturer of the DES
taken by her mother. Id. at 43. The court recognized that identifying the
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responsible manufacturer was especially difficult, in part, because “DES
was a fungible drug produced with a chemically identical formula.” Id. at
44. Moreover, it was produced in generic form and did not have a clearly
identifiable color, shape, or markings. Id.
Consequently, the court held that the plaintiff’s inability to identify
the defendant that manufactured the specific drug that caused her injury
was not fatal to her claim. Instead, each defendant that produced or
marketed DES contributed to the risk of injury to the public and,
specifically, to the individual plaintiff. Therefore, all the defendants shared
some degree of culpability in producing DES, and, according to Collins,
should bear the cost of injury to plaintiffs. Id. at 49-50.
Consequently, the court formulated the risk-contribution theory. A
plaintiff seeking a remedy under the risk-contribution theory need file suit
against only one defendant and allege the following elements:
[1] that the plaintiff’s mother took DES; [2]
that DES caused the plaintiff’s subsequent
injuries; [3] that the defendant produced or
marketed the type of DES taken by the
plaintiff’s mother; [4] and that the defendant’s
conduct in producing or marketing the DES
constituted a breach of a legally recognized
duty to the plaintiff.
Id. at 50. Plaintiffs who are unable to establish the third element need
only allege and prove that the defendant produced or marketed DES for
use in preventing miscarriages during pregnancy. Id. Once a plaintiff
proves a prima facie case, the burden shifts to the defendant to prove that
he did not produce or market the subject DES either during the time period
of the plaintiff’s exposure or in the relevant geographical market area. Id.
at 52.
The Collins court further held that, in calculating damages,
Wisconsin’s statutory principles of comparative negligence apply. Id. at
52-53 (citing Wis. Stat. § 895.045). Under Wisconsin’s comparative
negligence statute, the amount of liability, which comprises the proportion
of the total damages, “is determined in proportion to the percentage of
causal negligence attributable to each defendant.” Id. at 53. The court
outlined a non-exclusive list of factors that a jury may consider in
assigning a percentage of liability to each defendant:
whether the drug company conducted tests on
DES for safety and efficacy in use for
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pregnancies; to what degree the company took
a role in gaining FDA approval of DES for use
in pregnancies; whether the company had a
small or large market share in the relevant
area; whether the company took the lead or
merely followed the lead of others in producing
or marketing DES; whether the company
issued warnings about the dangers of DES;
whether the company produced or marketed
DES after it knew or should have known of the
possible hazards DES presented to the public;
and whether the company took any affirmative
steps to reduce the risk of injury to the public.
Id. at 53.
III.
Collective Liability and Lead Paint Cases
A.
Lead Paint Overview
Until the second half of the twentieth century, lead pigments were
used in the production of paint for diverse purposes and were routinely
included in paint sold for residential applications. By the 1950’s most
paint manufacturers had voluntarily discontinued the manufacture and
sale of interior residential paint that contained more than one percent lead.
In the 1950’s, 1960’s, and the 1970’s many communities banned the sale
of lead-based paint. In 1978, the federal government banned the sale of
lead-based paint for consumer or residential purposes.
Produced by numerous manufacturers, lead-containing paints
came in thousands of different formulas with varying quantities and types
of lead pigments. Although lead pigment added to paint was primarily in
the form of white lead carbonate, lead sulfate, leaded zinc oxide, red lead,
lead chromate, and lead silicate were also used as paint additives.
Lead pigment was commonly used in residential paint because the
pigment gave the paint superior hiding power (the ability of a paint to
obscure the surface to which it is applied) and durability. Consequently,
many older homes are coated with layers of lead-based paint. While
anyone can be affected by lead, children are at the greatest risk of being
harmfully exposed to lead from lead-based paint. Children in homes that
contain lead-based paint can ingest lead when the paint is not maintained
and is allowed to flake, chip, or otherwise deteriorate. Children can eat
paint chips or flakes that contain lead or can ingest lead dust or soil
contaminated with lead from flaked paint. Consequently, lead paint is
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often cited as a cause for lead poisoning in children and its victims often
seek remedies in the courts. (Other sources of lead exposure in children
include gasoline, solder used in cans for food products, plumbing
products, and recently, certain Mexican candies.)
Exposure to lead at very high levels can cause convulsions,
seizures, coma, lead encephalopathy and anemia. Lower levels of
exposure are detrimental to the central nervous system, peripheral
nervous system and the kidneys. Personal injury claims brought by
children with elevated blood levels seek recovery for damages that include
medical and counseling costs, diminished IQ, diminished cognitive
functions, learning disabilities, behavioral problems, loss of future income
potential, and other harms.
The first round of suits seeking recovery for alleged childhood lead
exposure were brought, and continue to be brought, as tort actions against
building owners or property managers. As noted above, lead-containing
paint is most prone to cause harm to young children when it is allowed to
deteriorate, and these suits claim that the landlord failed to observe the
duty to inspect and abate lead-based paint hazards on the property. The
suits were brought throughout the country and have resulted in huge
damage awards against residential landlords.
With the passage of time, many of the landlords who would be the
targets of these suits have become insolvent, have exhausted their
insurance coverage, or no longer have insurance coverage for lead paint
claims. In a search for other deep pockets to sue, plaintiffs began to bring
products liability actions against former manufacturers or sellers of lead
pigment and lead-containing paint, or the successors in interest of such
companies. In addition, in some cases, plaintiffs have named as
defendants lead mining companies, lead smelters, manufacturers of
tetraethyl lead (a former gasoline additive) and two trade associations, the
Lead Industries Association (LIA) and the National Paint and Coating
Association.
Many of these actions have failed because plaintiffs have not been
able to produce evidence that identifies the specific manufacturer or seller
of the lead paint or lead pigment at issue. Since any interior lead-based
paint causing harm to children was probably applied no later that the
1950’s, it is not surprising that records that might identify the manufacture
or seller of the paint no longer exist, and the painters who applied the
paint are unknown, deceased, or have no recollection of the products that
they applied more than half a century ago. In the absence of product
identification evidence, plaintiffs have urged courts to adopt some version
of collective liability. As detailed below, the attempts to impose collective
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liability on defendants in lead paint products liability actions have been
generally unsuccessful.
B.
Prior Attempts to Impose Collective Liability
Courts have found the theory of alternative liability to be
inapplicable to the facts in lead paint cases. One problem with applying
the alternative liability theory to lead paint cases is that manufacturers did
not act simultaneously in manufacturing the lead paint. See Skipworth v.
Lead Indus. Ass’n, Inc., 690 A.2d 169, 174 (Pa. 1997). Numerous
manufacturers entered and left the lead paint market over an
approximately 100 year period. See id. Additionally, most plaintiffs in lead
paint cases are unable to join all entities that manufactured paint during
the 100 year period, making the theory of alternative liability unavailable.
See id.
Courts have also generally rejected the concerted action theory in
the context of lead paint litigation. See, e.g., Santiago v. Sherwin Williams
Co., 3 F.3d 546 (1st Cir. 1993). Evidence has not shown that the lead
industry conspired to hide the dangers of lead paint -- rather, the evidence
is undisputed that the alleged hazards of lead, and lead paint, are widely
known and publicized. Indeed, one trial court in Maryland found that
plaintiffs’ evidence of a civil conspiracy to suppress knowledge of the
dangers of lead failed as matter of law on summary judgment. The court
found that the hazards of lead paint were widely known in Baltimore as
early as 1951, when the city enacted an ordinance banning the sale of
lead-based paint for interior use; that newspaper articles throughout the
1940’s and 1950’s featured lead poisoning cases; that scientific articles
detailing the hazardous effects of lead-based paint were published in the
medical literature in the 1940’s, and earlier (as early as 1848); and, that a
1958 Baltimore ordinance required specific warnings to be placed on the
cans of any lead-based paint sold in Baltimore for exterior purposes. The
court also found that there was no evidence that the defendants had
concealed any medical research into the health effects of exposure to lead
or altered or misrepresented any scientific findings. Finally, the court held
that there was no evidence of any conspiratorial agreement among the
defendants. Wright v. Lead Indus. Ass’n, Nos. 94363042/CL190487 and
94363043/CL190488 (Cir. Ct. Baltimore City, MD, June 20, 1996), aff’d,
No. 1896 (Md. Ct. Spec. App., Oct. 21, 1997). The Wisconsin Supreme
Court in Thomas held that the plaintiff had not shown that the defendants
entered into an agreement to commit tortious acts and affirmed the grant
of summary judgment on plaintiff’s civil conspiracy claim. Thomas v.
Mallet, 701 N.W. 2d 523, 566-67 (Wisc. 2005). Accordingly, in the
absence of evidence of participation by the lead paint defendants in
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carrying out an agreement to hide the dangers of paint from the public,
concerted action liability is inappropriate.
Thus far, courts have also declined to extend the enterprise liability
theory to cases involving lead paint. The Appellate Court of Illinois
recently rejected enterprise liability in a lead paint case, noting that such a
theory would inappropriately make the manufacturers insurers of their
industry. Lewis v. Lead Indus. Ass’n, Inc., 793 N.E.2d 869, 875 (Ill. App.
2003); see also City of Phila. v. Lead Indus. Ass’n, Inc., 994 F.2d 112 (3d.
Cir. 1993).
In addition, no court, other than the Wisconsin Supreme Court in
Thomas, has applied market share liability, in any of its various forms, to
lead paint cases. See, e.g., Brenner v. Am. Cyanamid Co., 699 N.Y.S. 2d
848, 851 (1999) (concluding that cases “involving injuries allegedly caused
by lead pigment [are] not amenable to recovery based on a market share
theory.”); Skipworth, 690 A.2d at 172 (“Application of market share liability
to lead paint cases . . . would lead to a distortion of liability which would be
so gross as to make determinations of culpability arbitrary and unfair.”).
In Santiago, the First Circuit also rejected the market share theory
of liability in the lead paint context. Santiago, 3 F.3d at 550. The Court
also noted that the defendants’ contributions to the lead paint market
varied significantly during the time lead based paints were sold in the
United States, making it difficult to determine market share.
IV.
Thomas v. Mallett
One commentator suggested that the Wisconsin version of market
share liability adopted in Collins was the most flexible and most likely to be
expanded to other products and situations. Allen Rostron, Beyond Market
Share Liability: A Theory of Proportional Share Liability for Nonfungible
Products, 52 UCLA L. Rev. 151, 170 (2004). The Thomas decision
proves out this thesis as, despite the holdings in the cases discussed
above, it is the only court to apply a market share theory in the context of
lead paint.
In Thomas, the Supreme Court of Wisconsin expanded the riskcontribution theory it adopted in the DES context to encompass
companies that once produced lead pigment. Steven Thomas, a
teenager, filed suit against manufacturers of white lead carbonate to
recover damages for his neurological injuries, which he claims are the
result of his ingestion of paint chips and dust as a young child. Thomas,
701 N.W.2d at 528. Thomas was unable to pinpoint which manufacturer
produced the allegedly defective pigment that he claimed caused his
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injury, and sought to bypass the causation requirement by alleging riskcontribution.
A.
Facts of the Case
Thomas was exposed to lead paint in the early 1990’s while living
in two different houses in Milwaukee, Wisconsin. Id. One house was built
in 1905, and was documented for lead-based paint violations by the health
department in 1992. The other house was built in 1900, and was cited for
lead-paint violations on August 12, 1993.
Paint samples from both houses were subjected to chemical
analysis. Thomas’s expert, basing his opinion upon the chemical analysis,
concluded that the houses contained lead paint made with white lead
carbonate pigment. Id. at 529.
Thomas settled claims against the owner of the first house prior to
filing suit. Thereafter, Thomas filed suit against the owners of the second
house and their insurer, then amended his complaint to join certain
manufacturers of white lead carbonate pigment, or their successors in
interest, and the LIA, a trade association. It is important to note that these
defendants were sued as manufacturers of lead-containing pigment, not
as manufacturers of lead paint -- though some had manufactured paint
that contained lead pigment. Thomas subsequently settled claims against
the second owner, and the LIA filed a bankruptcy petition and was
dismissed. Thus, Thomas’s remaining claims were directed solely at the
manufacturers of white lead pigment.
The plaintiff claimed that his elevated blood lead levels were
caused by white lead carbonate pigment from the houses. Thomas
acknowledged that he was unable to prove who manufactured the paint in
the homes where he had resided, who manufactured the white lead
carbonate he ingested, or when the paint was applied. The white lead
carbonate pigment defendants moved for summary judgment, arguing that
Thomas was unable to prove causation in fact or proximate cause.
Because he was unable to identify the specific company that made the
lead pigment he ingested, Thomas asked the court to apply a theory of
collective liability, citing Collins. The defendants explicitly argued that the
court should not extend Collins. Id. at 531.
The circuit court agreed with the defendants and dismissed
Thomas’s claims. First, the circuit court distinguished Collins from
Thomas’s situation, noting that, unlike the plaintiff in Collins, who was
remediless without the risk-contribution theory, Thomas had a viable
remedy against his landlords. Second, the circuit court concluded that
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application of the risk-contribution theory would be inappropriate because
the time frame of Collins – nine months – was dramatically narrower than
the nearly 100 year time frame in Thomas. Id. Third, the court noted that,
while DES produced a rare form of cancer, white lead carbonate does not
produce a “signature injury.” Fourth, different forms of lead pigments were
used in varying amounts by paint manufacturers, unlike all brands of DES
that have an identical composition. Finally, the circuit court declared that
DES manufacturers were in exclusive control of the product, whereas “the
Pigment Manufacturers were not in exclusive control of the risks involved
as they did not make the finished paint product or ensure that the product
was properly maintained in homes.” Id.
The Court of Appeals affirmed the decision on appeal, leading to
Thomas’s appeal to the Supreme Court of Wisconsin. Id. at 531-32.
B.
The Majority’s Analysis
In a 4-2 ruling, the Wisconsin Supreme Court reversed the trial
court’s refusal to extend the risk-contribution theory set forth in Collins to
Thomas’s claims. Noting that Collins authorized expansion of the riskcontribution theory in other factually similar scenarios, the majority
analyzed whether Thomas’s suit was factually similar to Collins. Id. at
557. The majority first held that the policy rationale espoused in Collins
warranted extension of the risk-contribution theory in the case at hand. Id.
at 558. According to the majority, “the record easily establishe[d] the
Pigment Manufacturers’ culpability for, at a minimum, contributing to
creating a risk of injury to the public.” Id. Moreover, the majority opined
that the white lead carbonate pigment manufacturers, as compared to
Thomas, were in a better position to absorb the cost of the injury. Thus,
the majority concluded that it was “better to have the Pigment
Manufacturers or consumers share the cost of the injury rather than place
the burden on the innocent plaintiff.” Id.
The majority next dealt with the defendants’ argument that
application of the risk-contribution theory is appropriate only when the
product at issue is “fungible” or “manufactured from a chemically identical
formula.” Id. at 559. Unlike DES, white lead carbonate pigment was not
fungible or marketed generically. Although the majority acknowledged
that white lead carbonate pigment was made from three different chemical
formulas, they concluded that fungibility does not require chemical identity,
stating:
Chemical identity was a feature that DES
apparently shared, and it was that chemical
formula that created a possibility of causing
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harm. Here, although the chemical formulas
for white lead carbonate are not the same,
Thomas’s toxicologist, Mushak, opines that it is
the common denominator in the formulas that
counts: lead. According to Mushak, the
formulary differences between white lead
carbonates do not affect the bioavailability of,
and hence the consequences caused by, the
lead pigment. Thus the formulas for both DES
and the white lead carbonate are in a sense on
the same footing as being inherently
hazardous. Therefore, it would be imprudent
to conclude that chemical identity is a
touchstone for fungibility and, in turn, for the
risk-contribution theory. To prevent the
triumph of form over substance, we conclude
that chemical identity is not required.
Id. at 559-60.
The majority then noted that, whether a product was “fungible” with
another product, could be viewed in different ways. First, it noted that a
product can be fungible in that it is “functionally interchangeable.” Id. at
560. In other words, “whether a product is fungible is a matter of degree
and heavily dependent on the context of whatever ‘function’ is at issue.”
Id. Second, a product can be fungible if it is “physically indistinguishable.”
Id. Third, a product can be fungible because it presents a “uniformity of
risk.” Id. Quoting Collins, the majority declared that “[a]s a result of
sharing an identical or virtually identical chemical formula, each
manufacturer’s product posed the same amount of risk as every other
manufacturer’s product. The products therefore were ‘identically
defective,’ with none being more or less defective than the rest.” Id. at
560-61 (internal quotation marks omitted).
The majority concluded that white lead pigment was fungible under
each of the above three meanings. First, it held that white lead carbonate
was functionally interchangeable because all forms of white lead
carbonate were lead pigments, and it was the pigment that provided the
hiding power of the paint. Thus, the function of one form of white lead
carbonate was interchangeable with the function of another form – both
were designed to give the paint hiding power. The majority dismissed the
notion that the different physical properties of particular pigments
destroyed fungibility, stating that such differences are matters of degree,
not function. Id. at 561.
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Next, the majority held that, based on the underlying record, white
lead carbonates are physically indistinguishable. Id. Disregarding any
microscopic physical differences, the majority stated that its concern was
“whether the white lead carbonates are physically indistinguishable in the
context in which it is used (in paint) and to whom is using it (the consumer
or injured party).” Id. at 561-62. Because Thomas was unable to discern
any difference between the various white lead carbonates, the majority
concluded that the product was physically interchangeable. Id. at 562.
Finally, the majority concluded that white lead carbonate presents a
uniformity of risk. The majority noted that “white lead carbonates were
produced utilizing ‘virtually identical chemical formulas’ such that all white
lead carbonates were ‘identically defective.’” Id. at 562. Lead, which was
the common denominator in the differing white lead carbonate formulas,
caused the white lead carbonate to be uniformly risky.
Concluding that the factual similarities to Collins warranted an
extension of the risk-contribution theory in Thomas, the majority then
tackled the defendants’ contention that the numerous other factual
dissimilarities between Thomas and Collins should preclude such an
extension. Id. at 562. The majority first addressed the pigment
manufacturers’ argument that the manufacturers would have no
reasonable ability to exculpate themselves due to the expansive time
frame during which the paint Thomas allegedly ingested could have been
applied. Id. The paint could have been applied at any time between
construction of the two houses in 1900 and 1905 and the ban on lead
paint use in 1978. Companies such as The DuPont Company, which
produced white lead carbonate pigment from 1917 until 1924, and
participated in the applicable market for a fraction of the relevant time
frame, will nonetheless find it difficult to establish that its product could not
have been the one that caused injury. Unlike the DES defendants in
Collins, who could show that they were not in the market during a
definitive nine-month window for a particular pregnancy, the Thomas
defendants that were in and out of the market during different times
between 1900 and 1978 would have no way to exculpate themselves.
The majority rejected the pigment manufacturers’ argument
regarding the time frame differences, stating that the defendants were
“essentially arguing that their negligent conduct should be excused
because they got away with it for too long.” Id. at 562. Further, the
majority declared that, although Collins was concerned with giving
possibly innocent defendants an opportunity to exculpate themselves by
demonstrating that their product could not have caused the injury, if the
defendants had not been able to do so “the equities ‘favor placing the
consequences on the defendants.’” Id. (quoting Collins, 342 N.W. at 52).
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In the majority’s opinion, the equities should not be reversed merely
because the defendants were able to benefit from manufacturing and
marketing white lead carbonate for so many years. Id. at 563.
Next, the majority responded to the manufacturers’ contention that
extension of the risk-contribution theory was inappropriate because the
plaintiff’s lead exposure could have been caused by a variety of sources,
and lead exposure does not produce a “signature injury”. Id. The majority
agreed that lead paint is not the only cause of lead poisoning, and that
other alternate explanations for Thomas’s cognitive defects existed. Id.
The majority, however, held that such arguments had no bearing on
whether extension of the risk-contribution theory to white lead carbonate
claims was appropriate:
Harm is harm, whether it be “signature” or otherwise. Even
under the risk-contribution theory, the plaintiff still retains a
burden of establishing causation . . . The plaintiff’s burden is
relaxed only with respect to establishing the specific DES the
plaintiff’s mother took, which, in this case, translates into the
specific type of white lead carbonate Thomas ingested.
Id. Thus, arguments regarding whether Thomas’s injuries stemmed from
the ingestion of white lead carbonate would have to wait for the jury.
Finally, the majority addressed the manufacturers’ claim that the
risk-contribution theory should not be extended because they were not in
exclusive control of the risk their product created. Id. Unlike DES, white
lead carbonate was a raw material that was used as an ingredient in a
finished product created by paint manufacturers. The white lead
carbonate manufacturers had no control over their product because they
did not determine the amount of pigment that was incorporated into the
final product, nor did they determine whether the final product would be
used for residential purposes.
The majority disagreed with the defendants’ contention, in part
because exclusive control of the risk was not a distinction relevant in
Collins. Moreover, the risk inherent in the white lead carbonate pigment
existed at the moment it was created. Id. Also, the majority stated that
the record demonstrated that the manufacturers were responsible for
magnifying the risk through their aggressive promotion of white lead
carbonate. According to the majority, the manufacturers’ actions made
whoever had “exclusive control” over the product immaterial. Id. at 564.
The majority concluded its opinion by declining to rule on the
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contribution theory. The pigment manufacturers argued that extending the
risk-contribution theory to Thomas’s claims violated principles governing
retroactive liability and due process. Id. at 565. According to the court,
constitutional issues were not ripe.
C.
Proving Risk-Contribution Liability After Thomas
Thomas established a four-part test for a successful claim for
negligence and strict products liability against lead carbonate
manufacturers in Wisconsin. In order to establish negligence, a plaintiff
must prove:
(1)
That he ingested white lead carbonate;
(2)
That white lead carbonate caused his
injuries;
(3)
That the Pigment Manufacturers
produced or marketed the type of white
lead carbonate he ingested; and
(4)
That the Pigment Manufacturers’
conduct in producing or marketing the
white lead carbonate constituted a
breach of a legally recognized duty to
the plaintiff.
Thomas, 701 N.W.2d at 564. The majority noted that “[b]ecause [the
plaintiff] cannot prove the specific type of white lead carbonate he
ingested, he need only prove that the Pigment Manufacturers produced or
marketed white lead carbonate for use during the relevant time period:
the duration of the houses’ existence.” Id.
To prove a strict products liability claims, a plaintiff only has to
prove:
(1)
That the white lead carbonate was
defective when it left the possession or
control of the pigment manufacturers;
(2)
That it was unreasonably dangerous to
the user or consumer;
(3)
That the defect was a cause of plaintiff’s
injuries or damages;
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(4)
That the pigment manufacturer engaged
in the business of producing or
marketing white lead carbonate or, put
negatively, that this is not an isolated or
infrequent transaction not related to the
principal business of the pigment
manufacturer; and
(5)
That the product was one which the
company expected to reach the user or
consumer without substantial change in
the condition it was when sold.
Id. After a plaintiff makes a prima facie case of negligence or strict
products liability, “the burden shifts to each defendant to prove by a
preponderance of the evidence that it did not produce or market white lead
carbonate either during the relvant time period or in the geographical
market where the house is located.” Id. The majority declined to address
whether damages should be assigned to defendants who cannot
exculpate themselves in accordance with Wisconsin’s comparative
negligence statute because the parties had failed to raise the issue. Id. at
565 n.52; see supra Part II.F.
The majority took pains to point out that defendants can still argue
to the fact finder that plaintiff’s injuries could be caused by factors other
than exposure to lead and indeed, the plaintiff still retains the burden of
establishing causation in that regard. Id. at 563. In addition, the majority
noted that the plaintiff continues to bear the burden to prove that he was
exposed to lead from white lead carbonate, as opposed to other sources
of lead exposure. Id. at 564-65. (In the context of most cases, as shown
by this decision, this will not be difficult). Despite these words of comfort
to the defendants, the Court’s decision, as noted in one of the dissenting
opinions, “creates an irrebuttable presumption of causation in the case
and extends [the risk-contribution theory] to a point where every paint
pigment manufacturer that produced white lead carbonate at one time or
another is absolutely liable.” Id. at 579 (Wilcox, J. dissenting).
D.
Analysis.
As noted above, the Thomas decision expands the use of a market
share liability theory into an area in which other courts have specifically
refused to apply such liability. The dissenting opinions are thorough
expositions of why that expansion was incorrect.
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In the first dissenting opinion, Judge Wilcox recognized the validity
of applying the risk-contribution theory to the unique set of facts in Collins.
Judge Wilcox argued, however, that expansion of the theory to cover the
facts in the present case was inappropriate. Id. at 568 (Wilcox, J.
dissenting). “The majority opinion amounts to little more than this court
dictating social policy to achieve a desired result.” Id. The majority’s
result-oriented approach was expressed from the outset of their analysis,
as they stressed that between an innocent plaintiff and a defendant that
may or may not have produced the product that caused injuries, the
defendant should bear the cost of injury. Id. at 557.
Judge Wilcox identified facts that rendered the underlying case
completely distinguishable from Collins. First, the case involved a much
longer time frame for when the injury-causing product may have been
manufactured and distributed. Instead of a narrow time frame, such as
the nine-month window in Collins, the defendants faced a time frame of
nearly 80 years. During large parts of the 80 year time period, several of
the defendants could not possibly have produced the lead pigment at
issue, but because “[t]he defendants are in no better position than Thomas
to acquire this information,” these defendants may be trapped with no
hope of exculpation. Id. at 579.
Another factual distinction is the plaintiff’s inability to prove what
product he ingested. In Collins, one of the prerequisites for applying the
risk-contribution theory was proof “that the plaintiff’s mother took DES.”
Collins, 342 N.W.2d at 50. Thomas, on the other hand, “cannot prove that
white lead carbonate, as opposed to some other type of white lead
pigment, or other leaded ingredient of paint, caused his injuries.” Thomas,
701 N.W.2d at 580. Instead, Thomas is merely able to prove that he has
manifested symptoms of lead poisoning and that some types of white lead
paint contained white lead carbonate. Id.
Additionally, the lack of a signature injury associated with the
product alleged to have caused injury distinguishes Thomas from Collins.
Id. at 583. Injured DES daughters typically suffer from a distinct form of
cancer that is traceable to their mothers’ ingestion of DES. Thomas’s
injuries, however, may have been caused by ingestion of lead from
another source. Without a signature injury, Thomas lacks the proof
necessary to conclusively demonstrate that white lead carbonate caused
his injuries. Id.
Yet another significant distinction between Thomas and Collins is
the white lead carbonate manufacturers’ lack of exclusive control over the
risk posed by the product that allegedly injured Thomas. Id. DES did not
change between the time of manufacture and ingestion. The Collins
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defendants created the finished product that, when utilized for its intended
purpose, caused injury. To the contrary, white lead carbonate
manufacturers produced a raw material. They did not produce lead-based
paint, the product allegedly ingested by Thomas, and, therefore, had no
control over the manufacture, marketing or sales of the finished product
that caused injury. Id. at 584. In further contrast, the defendants lacked
control over whether their raw material would be utilized in its intended
fashion.
Finally, Thomas is factually distinguishable because the product
involved, unlike DES, is not fungible. Id. Part of the Collins court’s
justification for adopting the risk-contribution theory was that DES was a
fungible drug, produced in generic form, and produced with a chemically
identical formula. Collins, 342 N.W.2d at 44. The Thomas defendants,
however, “overwhelmingly demonstrated that lead paints and pigments
were anything but generic, fungible, or chemically identical.” Thomas, 701
N.W.2d at 584. A single, identical chemical formulation of white lead
carbonate simply did not exist. Id.
The existence of these factual distinctions makes application of
Collins to the facts in Thomas inappropriate and unjustified. Thus, Judge
Wilcox noted, that “[b]y ignoring or downplaying the significance of these
factual distinctions and focusing solely on the policy articulated in Collins
of allowing an injured plaintiff to recover, the majority casts a wide net that
will ensnare numerous defendants and have drastic consequences for
firms doing business in Wisconsin.” Id. at 588.
The second dissenting opinion, authored by Judge Prosser, raises
constitutional issues that the majority declined to address. First, the
extension of the risk-contribution theory to the facts of the underlying case
violates a defendant’s procedural due process rights because it creates
no-fault liability – the defendant is not given the opportunity to show that
its particular product was not the cause of the plaintiff’s injury. Id. at 593
(Prosser, J. dissenting). Next, the majority’s holding violated substantive
due process because it “imposes ex post facto liability on the defendants
for activities long past.” Id. at 595. Finally, Judge Prosser opined that the
majority’s holding violated the equal protection clause, in that less
culpable manufacturers may bear a disproportionate share of the liability if
a more culpable defendant has gone out of business. Id. at 596.
V.
Potential Impact of Thomas v. Mallett
The Wisconsin Supreme Court’s unprecedented decision extending
risk-contribution as a basis for liability in products liability lead paint
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litigation will undoubtedly impact the lead pigment industry. One of the
dissenting judges in Thomas noted his fear that
Wisconsin will be the mecca for lead paint
suits. There is no statute of repose on
products liability here, and this court has now
created a remedy for lead paint poisoning so
sweeping and draconian that it will be nearly
impossible for paint companies to defend
themselves or, frankly, for plaintiffs to lose.
Thomas, 701 N.W.2d at 590 (Prosser, J. dissenting).
Furthermore, Thomas will potentially impact manufacturers of
products other than DES and white lead carbonate pigment. Wisconsin
courts, and courts adopting the rationale in Thomas, may conclude that
extension of the risk-contribution theory to products other than lead
pigment is appropriate when plaintiffs demonstrate similarities between
their facts and the facts in Thomas and Collins. In particular, the decision
may specifically impact other raw material manufacturers whose products
were incorporated into a finished product that ultimately causes injury
years later. Judge Wilcox warned that injured plaintiffs will no longer have
an incentive to locate the responsible party if they “can now sue the entire
raw material industry and place the burden on each individual defendant
to disprove their presumptive liability.” Id. at 589 (Wilcox, J. dissenting).
The Wall Street Journal, designating Wisconsin “Alabama North,”
predicts that the state will emerge as a favorite trial lawyer destination.
See Alabama North, Wall St. J., Aug. 9, 2005, at A10. Filing suits in
Wisconsin under the risk-contribution theory will be attractive to trial
lawyers for two reasons. First, proving the element of causation
essentially will be eliminated from their case-in-chief. Second, the threat
that a court may apply the risk-contribution theory, which makes it
practically impossible for a defendant to exculpate itself, will entice more
defendants to settle rather than risk a trial. Id.
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