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Thomas v. Mallett7/15/2005
reased by January 1993 to 27 ug/dl, it rose to 49 ug/dl by July 1993. Thomas was admitted to Children's Hospital of Wisconsin for five days of chelation treatment.
From mid-August 1993 to early September 1993, Thomas's BPb rose from 13 ug/dl to 33-40 ug/dl. From August 1993 until November 1993, Thomas lived at 4736 North 37th Street, Milwaukee, Wisconsin. Thereafter, Thomas's BPb steadily declined but was still in the BPb range for lead poisoning.
According to Dr. John F. Rosen, a professor of pediatrics and head of the Division of Environmental Sciences at the Children's Hospital at Montefiore of the Albert Einstein College of Medicine, Thomas's cognitive deficits are a "signature or constellation of cognitive effects" that are typical of lead poisoning. In Thomas's case, Rosen states that these deficits are permanent. In addition, due to Thomas's elevated BPb over the extended period of time, Thomas will require lifetime medical monitoring-surveillance for physical disorders, as he is now at a high risk for developing future medical complications, including kidney disease, peripheral neuropathy, hypertension, and cardiovascular disease. Rosen opines that Thomas's high lead levels are exclusively derived from ingesting lead based pigments in paint.
Thomas subjected various paint samples from his prior residences to chemical analysis. Robert Dragen, an electron microscopist, analyzed the various paint layers contained in the samples and provided the elemental composition for each layer. According to that analysis, none of the paint layers contained detectable levels of sulfur or chromium. Thus, according to Dr. Paul Mushak, a toxicologist and human health risk assessment specialist, this analysis conclusively rules out lead sulfate or lead chromate pigments. These pigments along with white lead carbonate pigments were the essential lead pigments used for residences. White lead carbonate was the principal pigment used, however. Because lead sulfate and lead chromate could be empirically excluded, Mushak opines to a reasonable degree of scientific and technological certainty that the houses contain lead paint made with white lead carbonate pigment.
As noted, the houses where Thomas alleges he ingested lead paint were built in 1900 and 1905. During that period, use of lead paint for residences was common. Lead paint contained up to 50 percent lead pigment and maintained widespread use through the 1940s. The use and manufacturing of interior lead-based paints declined during the 1950s, and, in 1955, the lead industry voluntarily adopted a standard of the American National Standards Institute that limited lead content to a maximum of one percent in paints intended for children's toys, furniture, and interior surfaces. However, lead paint for interiors continued to be available until the 1970s.
As of December 31, 1972, lead paint for interior and exterior household use containing more than 0.5 percent lead of its total weight was banned from interstate commerce. 16 C.F.R. § 1500.17(a)(6)(i)(B) (2005). In 1978, the ban was expanded to residential use of paint containing more than 0.06 percent lead by weight. 16 C.F.R. § 1303.2(2) (2005); 16 C.F.R. § 1303.4 (2005). In 1980, Wisconsin banned the use of lead paint. Wis. Stat. § 254.12 (2003-04); Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 61, 596 N.W.2d 456 (1999).
On December 4, 1996, prior to commencing the action that is the subject of this appeal, Thomas settled with Fire Insurance Exchange, the insurer for the landlord of 2652 North 37th Street, on a Pierringer basis for $62,652.55. On September 10, 1999, Thomas commenced the underlying action against his remaining two landlo
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