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Thomas v. Mallett7/15/2005
d "with improved sanitation." In the 1941 book entitled Painting Farm Buildings and Equipment, the LIA recommended white lead for domestic interiors, and particularly dark colored lead paints on lower walls so that children's finger marks would be less visible. Similarly in 1942, the LIA published a booklet entitled, "What to Expect From White Lead Paint," wherein the LIA promoted the use of white lead for both interior and exterior surfaces, suggesting that for interior wood, plaster and wallboard that 40 pounds of white lead be mixed with lead mixing or reducing oil to produce enough paint to cover 1,000 square feet of surface. Markowitz and Rosner submit that " any LIA advertisements were directed specifically toward encouraging the use of lead paint in the interiors of 'low-cost homes.'"
Just four years later, in 1946, the LIA Secretary disputed whether lead poisoning was attributable to lead-based paint because he contended that paint for inside uses no longer contained lead. In 1949, the LIA republished Painting Farm Buildings and Equipment, and, in 1952, in Lead in Modern Industry, the LIA stated:
hite lead . . . has practically no undesirable qualities to nullify its advantages . . . . he profitable application of white lead is not confined to exterior use. Pure white lead paints can be utilized to advantage for interior decoration, particularly in public and traditional buildings . . . .
The book further acknowledged that lead poisoning could occur from vapors, dusts, or ingestion of lead compounds. However, the book described ingestion posed the least danger, as the book asserted that most inside paints contained no lead. All the while, the LIA promoted lead paint for interiors.
It was not until December 1952 that the LIA made a decision, based solely on economics no less, to discontinue its promotion of white lead in house paints. Instead, the LIA diverted those funds to promoting red lead. Until at least 1962, however, the LIA continued to distribute Lead In Modern Industry, which advocated the use of white lead for interiors. The LIA withdrawal from promoting white lead, Markowitz and Rosner opine, was a tacit acknowledgment of lead paints' danger to children.
According to Markowitz and Rosner, the Pigment Manufacturers' marketing and ad campaigns created an enduring belief among consumers that the best paint was lead paint----as National Lead stated, "Remember, also, that the more white-lead you use, the better the paint." They further opine that " otwithstanding repeated statements over the years that it no longer produced white lead paint for interior use, the industry continued to sell white lead paints that were applied on interiors."
IV.
We begin our analysis with a discussion of Collins. In that case, the plaintiff developed adenocarcinoma of the vagina and benign adenosis of the vagina in 1975. Collins, 116 Wis. 2d at 174. While she was in utero in 1957, her mother used diethylstilbestrol (DES) to prevent miscarriage. In 1971, medical researchers established "a possible statistical link between fetal exposure to DES during pregnancy and the development many years later of adenocarcinoma of the vagina." Id. at 179. The plaintiff's mother could not remember where she purchased the DES or who manufactured it. Id. at 174. By that time, many mothers had taken DES during their pregnancies. Id. at 181.
After the discovery of the cancer, the plaintiff had much of her reproductive system surgically removed and developed other complications. Id. at 174-75. She sued 12 drug companies, all of which produced or marketed DES. Id. at 175.
The plaintiff was "unable to identify th
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