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Thomas v. Mallett7/15/2005
47, 51 (E.D.N.Y. 1998)). This type of fungibility is significant "because it is a reason why a product may pose unusually severe identification problems." Id. at 164.
Second, a product can be fungible in the sense that it is "physically indistinguishable." Id. at 164. Because appearances can be deceiving, the degree of physical similarity required, as with functional interchangeability, depends heavily on context: "For example, the difference between two brands of a cola drink in their original packaging will be obvious. After being poured from the can or bottle, they might be completely indistinguishable in appearance, distinguishable by taste for some consumers and not others, and easily distinguishable to chemists analyzing them in a laboratory." Id. at 164. As with functional interchangeability, fungibility in the sense that a product is physically indistinguishable is significant because it is also a reason why a product may pose identification problems. Id. at 165.
Third, a product can be fungible as it presents a "uniformity of risk." Id. at 165. Under this meaning, " 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. However, "whether a product poses a uniform risk can depend on the choice of the unit for which risk is measured. While each milligram of DES presented the same amount of risk, each DES pill did not, because the pills came in different dosages." Id. at 166. Thus, as products may contain different concentrations of the hazardous substance, there is leeway to conclude that strict chemical uniformity does not render all substances fungible. Id. at 166-67. Nevertheless, this was important to market-share liability as it defined "the market" by concretely establishing the risk undertaken by the manufacturers.
Fungibility, therefore, is not a term that is capable of being defined with categorical precision. Its character will depend on the context of the injury, its cause, and the particular obstacles encountered in linking the causation to the possibly negligent defendants. See Hamilton, 32 F. Supp. 2d at 51 ("It is the characteristic relevant to the matter at issue that determines whether a product is the same as and substitutable for another, and therefore, whether the two are interchangeable. . . . "). The facts presented in this case, when construed in the light most favorable to Thomas, however, establish that white lead carbonate is fungible under any of the above meanings.
First, white lead carbonate was functionally interchangeable. All forms of white lead carbonate were lead pigments, which constituted one of the two necessary components of paint (the other being the "vehicle"). The pigment is what provided the hiding power of the paint. Although there may be varying grades of hiding powers based on differing physical properties and concentrations of the particular pigments, those are differences of degree, not function.
Second, based on the summary judgment record, white lead carbonates are physically indistinguishable. As far as Thomas has been able to tell, the pigment at issue is white lead carbonate pigment. And as far as Thomas has been able to tell, there appears to be no difference between the various white lead carbonates. Although the Pigment Manufacturers contend that white lead carbonates were manufactured according to different processes, which resulted in white lead carbonates of different physical properties, these physical differences are available only on the microscopic scal
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