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Thomas v. Mallett7/15/2005
took the DES that caused her injury. Collins, 116 Wis. 2d at 174. The plaintiff knew when her mother ingested the drug and thus when the product was sold. See id. Additionally, DES was produced and marketed for 24 years. See id. at 179.
In contrast, this case concerns a substantially greater time frame of 75 to 80 years. This time frame runs from the years the two houses at issue were built----1900 and 1905----to the year Wisconsin banned the use of lead paint----1980. Each defendant participated in the white lead carbonate market during different periods of time. However, Thomas has no idea when the alleged injury-causing paint may have been applied to the interior of the two houses in which he lived from 1990 to 1994. The plaintiff's inability to pinpoint a workable timeframe during which the injury causing paint was applied is further exacerbated by the fact that one of the houses contained 18 distinct layers of paint, some of which did not even contain lead.
As one learned products liability treatise aptly notes: "The greater the span of time within which the potentially injury-causing product was sold, the less suited market share liability will be." Madden & Owen ยง 24:7, at 663. Likewise, the Pennsylvania Supreme Court, in a factually similar case, noted:
The difficulty in applying market share liability where such an expansive relevant time period as one hundred years is at issue is that entities who could not have been the producers of the lead paint which injured [the plaintiff] would almost assuredly be held liable. Over the one hundred year period at issue, several of the pigment manufacturers entered and left the lead paint market. Thus, application of the market share theory to this situation would virtually ensure that certain pigment manufacturers would be held liable where they could not have been a potential tortfeasor[.]
Skipworth, 690 A.2d at 173 (emphasis added).
In Santiago, 3 F.3d at 550, the First Circuit refused to apply market share theory of liability in a lead paint case, in part, because of "plaintiff's inability to pinpoint with any degree of precision the time the injury-causing paint was applied to the house." The plaintiff brought an action for various claims against the "manufacturer and marketer[s of] all, or virtually all, of the white lead used in the lead paints sold in the United States between 1917 and 1970." Id. at 547. She alleged that she had ingested lead paint applied to the interior of her house at various times over this 53-year period. Id. The First Circuit affirmed the district court's grant of summary judgment to the defendants, reasoning in part:
everal of the defendants were not in the white lead pigment market at all for significant portions of the period between 1917 and 1970, and therefore may well not have been market suppliers at the time the injury-causing paint was applied to the walls of the plaintiff's home. This, of course, raises a substantial possibility that these defendants not only could be held liable for more harm than they actually caused, but also could be held liable when they did not, in fact, cause any harm to plaintiff at all.
Id. at 551.
The reasoning of Skipworth and Santiago is equally applicable to this case. As noted in Section I, many of the defendants in this case were not participants in the white lead carbonate market for significant periods of time from 1900 to 1980. For instance, Sherman-Williams only produced white lead carbonate for a period of 37 years and American Cyanamid did not produce lead pigment until after 1971, while its predecessor in interest, MacGregor Lead Corporation, did not produce white lead car
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