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Thomas v. Mallett7/15/2005
l rules governing tort liability, and raises serious concerns of fundamental fairness, as the defendants will be unable to realistically exculpate themselves. The majority opinion not only creates the risk that liability may be wholly out of proportion with the culpability of each individual defendant; it raises a distinct possibility that some defendants may be held liable for an injury they did not and could not have caused. The majority seems content to run roughshod over established principles of causation and the rights of each defendant to present a defense and be judged based on its own actions. The majority's decision renders Wisconsin the only state to apply some form of collective liability in lead paint suits under similar facts.
While I recognize the validity of the risk-contribution theory of recovery articulated by this court in Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984), under the unique facts of that case, I wholly disagree with the majority's expansion of that theory to cover the present case. Because this case is factually distinguishable from Collins on several levels, the majority's expansion of Collins to this case is entirely inappropriate. Further, by applying risk-contribution theory to the facts of this case, the majority essentially adopts a version of risk-contribution theory explicitly rejected by the Collins court.
A legitimate system of law requires adherence to established legal principles, even if such adherence does not produce a result deemed desirable by the collective wisdom of four members of this court. Our common law used to require a plaintiff to prove four elements in order to recover under a theory of negligence: duty, breach, causation, and damages. Throughout the years, this court has essentially eliminated the requirement that a plaintiff prove the second element by holding that in Wisconsin, everyone owes a duty of reasonable care to the entire world. Alvarado v. Sersch, 2003 WI 55, , 262 Wis. 2d 74, 662 N.W.2d 350. Today, the majority proclaims that if a plaintiff is sympathetic enough and the "industry" of which a defendant was a part is culpable enough, a plaintiff may dispense with proof of the third element and recover against a party even though it has not been shown that the party reasonably could have contributed in some way to the plaintiff's actual injury. Simply put, the majority opinion amounts to little more than this court dictating social policy to achieve a desired result.
I.
I begin by discussing the facts in this case. The majority presents the reader with over 50 pages of so-called "facts" in order to construct an intricate tapestry of malfeasance and culpability on the part of the lead paint industry as a whole. In doing so, the majority attempts to conceal what is utterly lacking in the plaintiff's proof in this case: evidence of a reasonable connection between the conduct of each defendant and the plaintiff's injuries. See Collins, 116 Wis. 2d at 191 n.10 ("We . . . require it be shown that the defendant drug company reasonably could have contributed in some way to the actual injury."). Many of the majority's "facts" are simply irrelevant to the question of whether each individual defendant in this case can be said to have reasonably contributed to the plaintiff's actual injury.
Before discussing what Thomas can and cannot prove, a brief discussion of paint and the paint industry is in order. All paints include two basic components: the pigment and the vehicle. Pigment, such as white lead carbonate, imparts hiding power and protects the surface area. The vehicle allows the pigment to be spread and adhere to the surface to which it is applied. The vehicle also i
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