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Thomas v. Mallett7/15/2005
contribution that would have held manufacturers of DES liable without regard to whether they produced the product during the nine months the mothers were exposed to it. See Collins, 116 Wis. 2d at 191 n.10. This theory, proposed by Professor Glen O. Robinson, contended that "the plaintiff's damages should be apportioned 'among all defendants that created unreasonable risks according to the magnitude of the risks they created.'" Id. (quoting Glen O. Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va. L. Rev. 713, 755 (1982)). The Collins court, although adopting a form of risk-contribution theory, rejected Professor Robinson's broad theory of liability:
Although we find Robinson's "risk contribution" theory sound to the extent it recognizes that all DES drug companies contributed in some measure to the risk of injury, we do not agree that this is a sufficient basis in itself for liability. We still require it be shown that the defendant drug company reasonably could have contributed in some way to the actual injury.
Id. (emphasis added). In other words, Collins held that it is not enough for the plaintiff to prove that the defendant contributed to the creation of the risk to the general public; the plaintiff must further prove that the defendant reasonably could have contributed to the actual injury.
The majority has completely disregarded this limiting language of Collins in its analysis of Thomas's case. See majority op., (" he record easily establishes the Pigment Manufacturers' culpability for, at a minimum, contributing to creating a risk of injury to the public."). In so doing, the majority has expanded the Collins theory far beyond its original intent, and its opinion is tantamount to applying the theory of risk contribution that Collins explicitly rejected.
The Collins court noted that its "method of recovery could apply in situations which are factually similar to the DES cases." Id. at 191. However, there are several substantial factual distinctions between this case and Collins that make the majority's extension of Collins a drastic departure from both the original theory of liability articulated by this court and the great weight of authority in other jurisdictions. See Brenner v. American Cyanamid Co., 263 A.D.2d 165, 169 (N.Y. App. Div. 1999) (citing the following cases that have also "refused to apply the market share theory to lead poisoning cases[:]" Jefferson v. Lead Indus. Ass'n, 930 F. Supp. 241 (E.D. La. 1996), aff'd. 106 F.3d 1245 (5th Cir. 1997); Santiago v. Sherwin Williams Co., 3 F.3d 546 (1st Cir. 1993); City of Philadelphia v. Lead Indus. Ass'n, 994 F.2d 112 (3d Cir. 1993); Hurt v. Philadelphia Hous. Auth., 806 F. Supp. 515 (E.D. Pa. 1992); Skipworth v. Lead Indus. Ass'n, 690 A.2d 169 (Pa. 1997)). See also, Richard E. Kaye, Annotation, "Concert of Activity," "Alternate Liability," "Enterprise Liability," or Similar Theory as Basis for Imposing Liability Upon One or More Manufacturers of Defective Uniform Product, in Absence of Identification of Manufacturer of Precise Unit or Batch Causing Injury, 63 A.L.R. 5th 195, 269-74 (1998) (collecting cases). To invoke risk-contribution theory under a case so factually distinct from Collins is not simply a "straight application" of Collins, majority op., n.51; rather, in light of the following substantial factual distinctions, the majority opinion clearly extends Collins beyond the facts of that case.
The first major distinction between Collins and this case is that the time frame of Collins was dramatically narrower than the time frame in this case. Collins involved a limited nine-month time frame between conception and birth when the plaintiff's mother
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