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Thomas v. Mallett7/15/2005
Thomas has brought claims for both negligence and strict products liability. Applying the risk-contribution theory to Thomas's negligence claim, he will have to prove the following elements to the satisfaction of the trier of fact:
(1) That he ingested white lead carbonate;
(2) That the white lead carbonate caused his injuries;
(3) That the Pigment Manufacturers produced or marketed the type of white lead carbonate he ingested; and
(4) That the Pigment Manufacturers' conduct in producing or marketing the white lead carbonate constituted a breach of a legally recognized duty to Thomas.
See id. at 193. Because Thomas cannot prove the specific type of white lead carbonate he ingested, he need only prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence. See Id. at 194.
Applying the risk-contribution theory to Thomas's strict products liability claim, Thomas will have to prove the following elements to the satisfaction of the trier of fact:
(1) That the white lead carbonate was defective when it left the possession or control of the pigment manufacturers;
(2) That it was unreasonably dangerous to the user or consumer;
(3) That the defect was a cause of Thomas's injuries or damages;
(4) That the pigment manufacturer engaged in the business of producing or marketing white lead carbonate or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the pigment manufacturer; and,
(5) That the product was one which the company expected to reach the user or consumer without substantial change in the condition it was when sold.
See id. at 195-96.
Once Thomas makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. However, if relevant records do not exist that can substantiate either defense, "we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers]." Id. at 198. In addition to these specific defenses, and unlike in the DES cases, the Pigment Manufacturers here may have ample grounds to attack and eviscerate Thomas's prima facie case, with some of those grounds including that lead poisoning could stem from any number of substances (since lead itself is ubiquitous) and that it is difficult to know whether Thomas's injuries stem from lead poisoning as they are not signature injuries.
We continue to believe that this procedure will result in a pool of defendants which can reasonably be assumed "could have caused the plaintiff's injuries." See id. at 198. The alarmist tone of the dissents aside, our application of Collins here achieves Collins' requirement that it be shown that the defendant pigment manufacturer "reasonably could have contributed in some way to the actual injury." Id. at 191 n.10 (emphasis added). The procedure is not perfect and could result in drawing in some defendants who are actually innocent, particularly given the significantly larger time span at issue in this particular case. However, Collins declared that "we accept this as the price the defendants, and perhaps ultimately society, must pay to provide the plaintiff an adequate remedy under the law." Id.
E.
The Pigment Manufacturers raise constitutional challenges to our application o
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