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Thomas v. Mallett7/15/2005
ed complaint, Thomas admitted that he "is unable to identify the specific manufacturer, supplier and/or distributor of the Lead present in the residences in which he was exposed." Moreover, Thomas admitted in his response to the defendants' interrogatories that he has no knowledge of when lead-based paint was applied to the houses where he allegedly ingested the paint, what brand of paint was applied, or who applied the paint. Thomas admits that one of the residences contained "18 distinct layers of paint of which 16 contained lead pigment. Only the first and eighth layers did not contain lead." Pet'r Reply Br. at 9. As will be demonstrated below, these facts are of critical importance and render this case completely distinguishable from Collins.
II.
In addition to downplaying the significant facts of this case, the majority mischaracterizes the arguments of the defendants and engages in an unnecessary discussion of Article I, Section 9 of the Wisconsin Constitution. The majority states that with regard to Article I, Section 9, " he import of [the Pigment Manufacturers' argument] is that where recovery has been had against one tortfeasor, all other tortfeasors are necessarily absolved." Majority op., . Further, the majority states that " e have serious concerns with the Pigment Manufacturers' attempt to displace all of the blame for lead poisoning from its white lead carbonate pigment on landlords and what effect that will have on the adequacy of the plaintiff's remedy." Majority op., . This is a seemingly inaccurate characterization of the defendants' argument regarding Article I, Section 9, and serves only as a straw man for the majority to knock down and open the door to its expansive reading of Article I, Section 9.
Part of the rationale of the Collins court for adopting its variant of market share liability was that the plaintiff would be left without a remedy absent some theory of collective liability. See Collins, 116 Wis. 2d at 182. The defendants in this case, contrary to the majority's characterization, do not argue that Article I, Section 9 absolves them from liability. Rather, they argue " he 'Right to Remedy' Clause of the Wisconsin Constitution Does Not Require Extension of Collins." Resp't Br. at 34 (emphasis added).
Article I, ยง 9 was material to the analysis in Collins only because the Court concluded that Therese Collins was entitled to a remedy at law for her injuries, and unless existing law were modified she would have no remedy against anyone. This case does not present comparable justification for modifying existing law, because Thomas had a remedy for his injuries against the landlords.
Resp. Br. at 36 (emphasis added). Nowhere do the defendants argue that this constitutional provision is "a vehicle to defeat the plaintiff's right to recovery for wrongs committed by one simply because some recovery has already been had against another." Majority op., .
The defendants simply contend that because the plaintiff in this case has had a remedy against the landlords, Collins' rationale concerning Article I, Section 9 does not apply, and thus, there is no comparable justification for this court to fashion a remedy to allow Thomas to recover. The defendants do not argue that they should be "absolved" from liability because Thomas has recovered from his landlords. They merely state that because he has had such a recovery, the rationale of Collins does not apply, and Thomas should have to proceed under the normal rules of causation in tort law. Seeking to be judged under the normal tort rules of liability hardly equates to asking this court to use a constitutional provision to shield parties from liability.
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