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Thomas v. Mallett7/15/2005
generically referring to the "industry" as a whole, as does the majority, we examine each defendant's role in the production of white lead carbonate, as the plaintiff in this case is suing individual defendants and not an "industry."
Sherman-Williams began the production of white lead carbonate in 1910 when it opened a plant in Chicago . In the 1930s, Sherman-Williams shifted its emphasis to lithopone products. By 1937, almost none of Sherman-Williams' interior paints contained white lead pigments. Sherman-Williams ceased production of white lead carbonate by June of 1947.
Atlantic Richfield is successor in interest to Anaconda Lead Products Company (ALPC) and International Smelting and Refining Company (IS&R). ALPC began operating in Chicago in 1919 and began selling lead pigment, including white lead carbonate, in 1920. In 1936, ALPC was dissolved and acquired by IS&R. IS&R operated the Chicago plant until 1946. Its production of white lead carbonate during the war was greatly reduced, and it was required to stop making white lead carbonate for months at a time. IS&R sold the Chicago facility to the Eagle-Picher Company in 1946. IS&R merged with ALPC in 1973, which was then acquired by Atlantic Richfield in 1977.
The DuPont Company began manufacturing paint and paint pigments in 1917. DuPont manufactured and sold white lead carbonate from 1917 to 1924, although it did not sell white lead pigment to any other manufacturer. From 1917 onward, DuPont sold non-lead paint that competed with white lead pigments, including lithopone and titanium dioxide. DuPont did not have a retail store in Milwaukee and "never sold an interior trade sales paint that contained white lead pigment."
The SCM Corporation is successor in interest to The Glidden Company (Old Glidden). Old Glidden was incorporated in 1917 and merged with SCM in 1967. SCM was subsequently acquired by another company and sold to a British company. Old Glidden purchased the Euston Company in Scranton, Pennsylvania, and began production of white lead carbonate in 1924. Old Glidden produced white lead carbonate until 1958, when it sold the Euston facility. During the 1920s and 1930s, Old Glidden was the world's largest supplier of lithopone and a large manufacturer of titanium dioxide. Although Old Glidden was a member of the Lead Industries Association from 1924 until 1958, it did not participate in the White Lead Promotion Campaign.
American Cyanamid is being sued both as a successor in interest to MacGregor Lead Corporation and based on its own production of white lead carbonate after 1971. MacGregor Lead Corporation began producing white lead carbonate in 1937.
The dates the aforementioned companies were involved in the production of white lead carbonate is particularly significant given the time frame at issue in this case. The two residences where Thomas allegedly ingested lead paint, supposedly containing white lead carbonate, were built in 1900 and 1905, respectively. Majority op., -8. Lead paint was banned by Wisconsin in 1980. See § 657u, ch. 221, Laws of 1979 (creating Wis. Stat. § 151.01 (1980)). Thus, many of the defendants in this case were not participants in the white lead carbonate market for significant periods during this time frame. None of the above companies were manufacturing white lead carbonate when the houses in which Thomas resided were built. Almost all of the above companies had ceased production of white lead carbonate by 1950, approximately 30 years before the use of lead paint was banned in Wisconsin. These facts are of critical importance when considered in context of the other facts in this case.
In his amend
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