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Thomas v. Mallett7/15/2005
e. Our concern here is 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). We acknowledge that the physical identity in this case is markedly different from that in Collins. Whereas in Collins, the plaintiff's mother could identify certain characteristics about the particular DES pill she ingested, that type of analysis is not possible here, as pigment in paint by its nature and concentration defy more specific identification. Nevertheless, we conclude the factual circumstances of physical interchangeability that are present are still sufficiently similar to remain within Collins' confines.
Third, we have already noted that white lead carbonates were produced utilizing "virtually identical chemical formulas" such that all white lead carbonates were "identically defective." See id. at 165; see also Wheeler v. Raybestos-Manhattan, 11 Cal. Rptr. 2d 109, 111 (Cal. Ct. App. 1992) (concluding that although brake pads containing asbestos chrysotile fibers were not all manufactured from one single chemical formula, "they are fungible . . . by virtue of containing roughly comparable quantities of the single asbestos fiber, chrysotile."). It is the common denominator in the various white lead carbonate formulas that matters; namely, lead.
Therefore, based on the factors identified in Collins, we conclude that Thomas's case is factually similar to warrant extension of the risk-contribution theory.
C.
The Pigment Manufacturers, however, contend that there are a number of factual dissimilarities between this case and Collins that should preclude recognizing the risk-contribution theory here. While there are dissimilarities between the two, we do not agree that these defeat the extension of Collins in this case.
1.
First, the Pigment Manufacturers note that the paint Thomas allegedly ingested could have been applied at any time between construction of the two houses in 1900 and 1905 and the ban on lead paint in 1978. This significant time span greatly exceeds the nine-month window during which a plaintiff's mother would have taken DES, the Pigment Manufacturers note. Given that Collins attempted to strike a balance between assuring a DES plaintiff had a remedy and providing a realistic opportunity to each DES pill manufacturer to prove that it could not have caused the plaintiff's harm (by establishing its DES could not have reached the mother during her pregnancy), the Pigment Manufacturers contend that Collins should not be extended given that they have no reasonable ability to exculpate themselves.
We recognize that the window during which the possible injury causing white lead carbonate was placed in a house that eventually harmed Thomas is drastically larger than a nine-month window for pregnancy. However, the window will not always be potentially as large as appears in this case. Even if it routinely will be, the Pigment Manufacturers' argument must be put into perspective: they are essentially arguing that their negligent conduct should be excused because they got away with it for too long. As Thomas says, the Pigment Manufacturers "are arguing that they should not be held liable under the risk contribution doctrine because of the magnitude of their wrongful conduct."
Collins was concerned with providing possibly innocent defendants a means to exculpate themselves by establishing their product could not have caused the injury. Collins, 116 Wis. 2d 191 n.10. If they could not do so, this court stated that the equities "favor placing the consequences on the defendants." Id. at 198. Equity does
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