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Thomas v. Mallett7/15/2005
were members of the LIA at varying times. However, "every action by a trade association is not concerted action by the association's members." AD/SAT v. Associated Press, 181 F.3d 216, 233-34 (2d Cir. 1999); Edwardson v. American Family Mut. Ins. Co., 223 Wis. 2d 754, 762, 589 N.W.2d 436 (Ct. App. 1998) (" ere knowledge, acquiescence or approval of a plan, without cooperation or agreement to cooperate, is not enough to make a person a party to a conspiracy."). We conclude that Thomas has not presented sufficient material facts to sustain his civil conspiracy claim.
B.
Thomas next argues that an enterprise liability theory is a viable alternative. "Under the enterprise liability theory, it is the industry-wide standard that is the cause of injury, and each defendant that participates in perpetuating and using the inadequate standard has contributed to and is liable for the plaintiff's injury." Collins, 116 Wis. 2d at 186. As in Collins, we conclude that enterprise liability is not available here.
The crux of Thomas's argument is that the Pigment Manufacturers, through the LIA, effectively prevented regulatory oversight into the industry through targeted lobbying campaigns designed to frustrate conditions and standards for the product. However, while the LIA sought to protect its industry, the record indicates that " he paint industry was highly competitive, with each paint company jealously guarding the secrecy of their paint formulas." Thomas does not explain when there ever was a small concentrated "industry" here. See Hall v. E.I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353, 378 (E.D.N.Y. 1972) (noting doctrine's "special applicability to industries composed of a small number of units"). Therefore, we decline Thomas's invitation to adopt the enterprise liability theory at this time.
VI.
In sum, we conclude that Article I, Section 9 is not a barrier for seeking to recover against one or more tortfeasors when recovery has already been had against another. We further conclude that the risk-contribution theory applies to white lead carbonate cases. Although the Pigment Manufacturers raise constitutional challenges to this conclusion, those issues are not yet ripe. We further conclude that Thomas cannot proceed on his claims for civil conspiracy and enterprise liability.
By the Court.--The decision of the court of appeals is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.
PATIENCE DRAKE ROGGENSACK, J. did not participate.
JON P. WILCOX, J. (dissenting).
It is often said that bad facts make bad law. Today's decision epitomizes that ancient legal axiom. The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Even though the injury in this case is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result of white lead carbonate, much less the type of white lead carbonate produced by any of the respective defendants. More importantly, he cannot prove when the supposed white lead carbonate that allegedly poisoned him was manufactured or applied to the houses in which he was supposedly lead poisoned. However, none of these facts seem to matter to the majority.
Subjecting the defendants in this case to liability under these circumstances amounts to an unwarranted and unprecedented relaxation of the traditiona
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