 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Thomas v. Mallett7/15/2005
not support reversing that balance simply because the Pigment Manufacturers benefited from manufacturing and marketing white lead carbonate for a significant period of time.
2.
Next, the Pigment Manufacturers contend that the risk-contribution theory should not be extended because Thomas's lead poisoning could have been caused from many different sources. We agree that the record indicates that lead poisoning can stem from the ambient air, many foods, drinking water, soil, and dust.
Further, the Pigment Manufacturers argue that the risk-contribution theory should not be extended because lead poisoning does not produce a "signature injury." As alternate explanations for Thomas's cognitive deficits, the Pigment Manufacturers have brought forth evidence that genetics, birth complications causing damage to the central nervous system, severe environmental deprivation, inadequate parenting, parental emotional disorders, and child abuse could all, in varying ways, cause such impairments.
These arguments have no bearing on whether the risk-contribution theory should be extended to white lead carbonate claims. Harm is harm, whether it be "signature" or otherwise. Even under the risk-contribution theory, the plaintiff still retains a burden of establishing causation. To establish a negligence claim under the risk-contribution theory, this court concluded that the plaintiff nonetheless needed to prove that "DES caused the plaintiff's subsequent injuries." Collins, 116 Wis. 2d at 193. Similarly, on a products liability claim, the Collins court held that the plaintiff has to prove "that the defect was a cause of the plaintiff's injuries or damages." Id. at 196. On whatever theory the plaintiff chooses to proceed, this causation showing must be made by a preponderance of the evidence, and ultimately "to the satisfaction of the trier of fact." Id. at 194. The plaintiff's burden is relaxed only with respect to establishing the specific type of DES the plaintiff's mother took, which, in this case, translates into the specific type of white lead carbonate Thomas ingested. See id. at 193-94.
While Collins concerned a plaintiff who had injuries of a "signature" nature, that merely means that Thomas may have a harder case to make to his jury. Further, while the Pigment Manufacturers are correct to argue that Thomas's lead poisoning could have come from any number of sources, that is an argument to be made before the jury.
3.
Finally, the Pigment Manufacturers argue that because they were not in exclusive control of the risk their product created, the risk-contribution model should not apply to them. We again disagree.
This was again not a distinction relevant in Collins. Further, we see no reason why it should be for at least two reasons. First, as doctors were the ones who prescribed the dosage of DES, so too were the paint manufacturers that mixed the amount of white lead carbonate in the paint. However, the paint did not alter the toxicity of the white lead carbonate anymore than the pharmacist did by filling a prescription. To the contrary, at best, the paint manufacturers actually diluted the white lead carbonate's toxicity. In other words, the inherent dangerousness of the white lead carbonate pigment existed the moment the Pigment Manufacturers created it.
Second, the record is replete with evidence that shows the Pigment Manufacturers actually magnified the risk through their aggressive promotion of white lead carbonate, even despite the awareness of the toxicity of lead. In either case, whoever had "exclusive" control over the white lead carbonate is immaterial.
D.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|