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Thomas v. Mallett7/15/2005
that his case had many characteristics in common with Collins, writing:
As Thomas points out in his extensive submissions, and, for the purposes of this appeal, assuming their verity, this case and Collins share, for many of the same reasons, the inability of the plaintiff to identify those who made and sold the specific substance alleged to have caused injury. Thus, in both Collins and here the substances produced or sold by one company are, as material to the possibility of tracing the manufacturer or seller, essentially the same as that produced or sold by the others. . . . Additionally, both the diethylstilbestrol alleged to have caused the plaintiff's vaginal cancer in Collins, and the white lead carbonate alleged to have caused Thomas's neurological disorders were made and sold by many companies long before the injury, making it impossible to trace specific manufacturers or sellers to the particular injury-causing product.
Id., .
These similarities aside, however, the court of appeals read Collins as fashioning the risk-contribution theory for situations where a plaintiff is without any remedy whatsoever. Id., . Because Thomas already had an existing right against his landlords, the court of appeals determined that recognizing Collins' risk-contribution theory for white lead carbonate was unnecessary. Id., .
Regarding Thomas's civil conspiracy claim, the court of appeals agreed that he presented sufficient evidence to create a genuine issue of material fact as to whether the Pigment Manufacturers acted in concert to at least minimize the dangers of white lead carbonate. Id., . However, the court of appeals determined that Thomas did not establish that the concerted action was a substantial factor in producing his injuries. Id., -13. Specifically, the court of appeals concluded that Thomas had not shown that the conspiracy was a substantial factor that contributed to either the use of lead-based paint or its faulty maintenance. Id., .
Finally, the court of appeals rejected Thomas's enterprise liability theory for two reasons: first, Thomas did not produce any evidence that white lead carbonate either was negligently made or dangerously defective if the lead paint was properly applied and maintained, id., ; and second, there was no need to allow Thomas to sue on an enterprise liability theory as he already had a remedy at law for his injuries against the landlords, id., .
Thomas seeks review.
II.
As noted, this case is before us on summary judgment. We review summary judgments independently, applying the same methodology as the circuit courts. Mayberry v. Volkswagen of Am., Inc., 2005 WI 13, , 278 Wis. 2d 39, 692 N.W.2d 226; Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. ยง 802.08(2). All reasonable inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).
III.
A problem facing Thomas, who alleges that he was injured by white lead carbonate pigment, is that he is unable to identify the precise producer of the white lead carbonate pigment he ingested at his prior residences due to the generic nature of the pigment, the number of producers, the lack of pertinent records, and the passage of time. See Collins, 116 Wis. 2d at 17
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