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Thomas v. Mallett7/15/2005
al distinctions, applying Collins to the facts of this case results in a de facto adoption of a theory explicitly rejected by Collins and an unjustified and unprecedented departure from traditional tort law principles of causation.
The Collins court created a unique theory of liability for plaintiffs who were injured as a result of exposure to the drug DES in utero. Collins, 116 Wis. 2d at 177. Essentially, the theory articulated in Collins relaxed the plaintiff's burden of proof in regard to causation; as such, it allowed DES plaintiffs to proceed with an underlying tort claim when they could not prove that any particular defendant's tortious conduct was the proximate cause of their injury. See id. at 193-94. Instead, the plaintiff was required to "establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., color, shape, markings, size, or other identifiable characteristics) of DES taken by the plaintiff's mother." Id. at 194. However, even under the relaxed causation standards it announced, the Collins court still required that the plaintiff prove "that the defendant drug company reasonably could have contributed in some way to the actual injury." Collins, 116 Wis. 2d at 191 n.10. By applying Collins to the facts of this case, the majority virtually eliminates this essential requirement. In light of the substantial factual distinctions set forth below, it simply cannot be said that the defendants in this case could have reasonably contributed to Thomas's injuries. The majority can "embrace" this requirement from Collins all it wants, majority op., n.43, but, in the end, the majority never explains how Thomas can prove, under any interpretation of the facts, that the white lead carbonate manufacturers could have reasonably contributed to his injury. By applying risk-contribution theory to this case, it is clear that the majority opinion greatly expands Collins beyond its intended scope and will result in absolute liability for manufacturers of raw materials by creating an irrebuttable presumption of causation.
The Collins court relaxed the plaintiff's burden of proof because she was "unable to identify the precise producer or marketer of the DES taken by her mother due to the generic status of some DES, the number of producers or marketers, the lack of pertinent records, and the passage of time." Id. at 177. In particular, the DES plaintiff could not specifically locate the manufacturer of the particular DES drug ingested by her mother because DES was produced in generic form and DES variants were fungible and possessed a chemically identical formula. Id. at 180. " ften pharmacists would fill DES prescriptions from whatever stock they had on hand, whether or not a particular brand was specified in the prescription." Id. Furthermore, "as many as three hundred drug companies produced or marketed DES during the twenty-four years DES was on the market, with different companies entering and leaving the market throughout this period," and these companies may not have kept or been able to locate the pertinent records at to what type of DES they produced. Id.
Due to this unique factual situation, the Collins court "chose to adapt, rather than adopt, the market share theory[,]" first approved by the California Supreme Court in Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980). 2 David G. Owen et al., Madden & Owen on Products Liability ยง 24:7, at 665 (3d ed. 2000) [hereinafter Madden & Owen]. The Collins court formulated a slightly altered theory of market share liability, called the risk-contribution theory. Collins, 116 Wis. 2d at 191 n.10.
Importantly, the Collins court explicitly rejected a broader theory of risk
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