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Thomas v. Mallett7/15/2005
ncludes a drier and thinner. The industry defendants are being sued in their capacity as producers of paint pigment, specifically, white lead carbonate.
White lead carbonate was used in the United States since colonial times. Over the years, white lead carbonate was produced by no less than six different processes. As such, there was no single formula for white lead carbonate and white lead carbonate could be comprised of three different chemical compounds. These three compounds all differed in chemical composition, the amount of lead oxide they contained, and pH value. Even with respect to a given formula, the amount of lead could vary by up to ten percent.
These formulas, in addition to having different chemical compositions and different concentrations of lead oxide, also possessed significant differences in physical properties, including differences in: specific gravity, bulking values, oil absorption, hiding power, and particle size and shape. These differences are crucial because: " epending on the hiding power of the pigment used, the amount of lead pigment----and thus lead----could vary dramatically between batches equally capable of covering a specified surface area." (Emphasis added.)
Further, white lead carbonate was not sold generically; the market for white lead carbonate was extremely competitive. Each manufacturer possessed its own distinctive brand and label, and aggressively marketed its own version of white lead carbonate. For instance, "National Lead offered 'five different white-leads,' stating that ' ach of the five has its own special combination of paint-making characteristics.'" Importantly, "paints with the same label or brand could vary significantly in lead content depending on the color or tint of the paint." (Emphasis added.)
We also note that white lead carbonate was not a material used exclusively by the paint industry. White lead carbonate was routinely utilized in the ceramics and pottery business in the first half of the twentieth century. Thus, several major customers of firms that produced white lead carbonate were not involved in paint manufacturing.
It is important to emphasize that the industry defendants are being sued in their capacity as manufacturers of white lead carbonate and not the finished product, paint. "Until the late nineteenth century, paint manufacturers and dealers did not sell paints----they sold ingredients or 'mixings' which the purchasers then mixed to make their own paints. Prepared paints were viewed as inferior in quality, particularly because the early ready-mixed paints often used inferior ingredients."
Thus, "painters in the early decades of the 1900s often had their own individual formulas or methods for mixing the paint that they thought was best, depending on what a specific job required." "Paint manufacturers, of which there were over 200 in the Milwaukee area alone between 1910 and 1971, decided which pigment types, combinations and amounts to use." "Large purchasers also sometimes had their own unique specifications." As such, in addition to the varying formulas and brands of pigments, "the relative amounts and concentrations of the pigments varied in different paint formulations." (Emphasis added.)
Further, lead paint contained lead from sources other than the pigment, as some painters used lead "as a drier or catalyst rather than as a pigment." "Paint formulation was, and still is, a highly individual undertaking." In short, "there was no one type of 'white lead paint.'"
We note that the record also indicates that the manufacturing market for white lead carbonate, in addition to being competitive, was quite fluid. Rather than
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