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Thomas v. Mallett7/15/2005
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3.
Thomas is also unable to identify the precise manufacturer of the white lead carbonate that caused his injuries due to the number of manufacturers, the passage of time, and the loss or records. See id. at 177. Additionally, he cannot identify which of the three types of white lead carbonate he ingested. On this failure of proof, the Pigment Manufacturers contend, Thomas's claim must fall. They argue that because white lead carbonate was not "fungible" or manufactured from a chemically identical formula, Collins' risk-contribution cannot be applied here. We disagree.
a.
One of the proof problems the Collins court recognized the plaintiff had was that she was unable to identify the precise producer or marketer of the DES her mother took due to, among other things, "the generic status of some DES." Id. at 177. In different terms, this court stated that the plaintiff could not identify the drug company that caused her injury because "DES was, for the most part, produced in a 'generic' form which did not contain any clearly identifiable shape, color, or markings." Id. at 180. This court also observed that "DES was a fungible drug produced with a chemically identical formula, and often pharmacists would fill DES prescriptions from whatever stock they had on hand, whether or not a particular brand was specified in the prescription." Id.
There is no denying that Collins involved a situation where a chemically identical formula allegedly caused harm. It is also true that white lead carbonate was made from three different chemical formulas. However, Collins did not address whether DES was fungible because of its chemical identity, because of its interchangeability due to its generic status, or because of both. The question is, does fungibility require chemical identity? We conclude that it does not.
Chemical identity was a feature that DES apparently shared, and it was that chemical formula that created a possibility of causing 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.
b.
But the question still remains: what does fungibility mean? It has been noted that " hile 'fungibility' become an obsession for courts discussing market share liability, no court has ever explained thoroughly what 'fungibility' means or why it is important." Allen Rostron, Beyond Market Share Liability: A Theory of Proportional Share Liability for Non-fungible Products, 52 UCLA L. Rev. 151, 163 (Oct. 2004) [hereafter Beyond Market Share Liability]. Rostron writes that a product can be fungible in at least three different senses.
First, a product can be "functionally interchangeable." Under this meaning, whether a product is fungible is a matter of degree and heavily dependent on the context of whatever "function" is at issue. For example, "'for signaling New Year's Eve, a blast from an auto horn and one from a saxophone may be equivalent as noise, but few would want to dance to the former.'" Id. at 163-64 (quoting Hamilton v. Accu-Tek, 32 F. Supp. 2d
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