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Thomas v. Mallett7/15/2005
f the risk-contribution theory to Thomas's claims. First, they argue it violates principles governing retroactive liability by attaching new, severe, and unanticipated legal consequences to conduct previously completed. See Eastern Enters v. Apfel, 524 U.S. 498 (1998). Second, they argue it violates due process by establishing evidentiary presumptions that are irrational or do not provide a fair opportunity for rebuttal. See Western & Atlantic R.R. v. Henderson, 279 U.S. 639, 642 (1929). Third, they argue that their due process right to a meaningful opportunity to present a defense is violated. See Huntley v. North Carolina State Bd. of Educ., 493 F.2d 1016, 1019 (4th Cir. 1974).
These constitutional issues are not ripe. As this case is before us on summary judgment, and as many material facts are in dispute, we remand this case for trial.
V.
Thomas also argues that he should be able to present alternative theories of liability to the jury: specifically enterprise liability and civil conspiracy. On this point, we agree with the Pigment Manufacturers that the claims cannot be pursued.
A.
A civil conspiracy is "a combination of two or more persons by some concerted action to accomplish some unlawful purpose or to accomplish by unlawful means some purpose not in itself unlawful." Onderdonk v. Lamb, 79 Wis. 2d 241, 246, 255 N.W.2d 507 (1977) (citation and quotations omitted). "At a minimum, to show a conspiracy there must be facts that show some agreement, explicit or otherwise, between the alleged conspirators on the common end sought and some cooperation toward the attainment of that end." Augustine v. Anti-Defamation League of B'Nai B'rith, 75 Wis. 2d 207, 216, 249 N.W.2d 547 (1977). "To state a cause of action for civil conspiracy, the complaint must allege: (1) The formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts." Onderdonk, 79 Wis. 2d at 247.
Thomas argues that the Pigment Manufacturers cooperated through the LIA to mislead the public and the government to conceal the hazards of white lead carbonate. In doing so, Thomas argues that they furthered their common tortious end of selling a product they knew was harmful to children, thereby committing civil conspiracy. We disagree.
In Collins, this court declined to recognize a civil conspiracy claim for DES manufacturers because the record showed only "parallel behavior." Collins, 116 Wis. 2d at 188. This court stated that " here is no indication in the record that the defendants either explicitly or tacitly collaborated to gain FDA approval so that they could in turn collaborate to misrepresent the safety and efficacy of DES for use in preventing miscarriages." Id. Further, this court said, "this theory becomes unworkable when we consider the fact that many drug companies entered the DES market well after FDA approval. These later entrants should not be charged with participation in or knowledge of the alleged 1941 and 1947 conspiracies." Id.
As Sherwin-Williams notes, each Pigment Manufacturer had a unique story regarding its participation in the LIA. Thomas does not explain when any agreement was reached to commit tortious acts, who was involved in this agreement, and when the other parties entered into this agreement. At best, his evidence establishes that a trade organization, the LIA, aggressively promoted lead products and took, what seems to be, any measures possible to ensure that the market for lead products remained free and unencumbered.
Further, the Pigment Manufacturers, either individually or as successors-in-interest, all
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