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Thomas v. Mallett7/15/2005
bonate until 1937. Significantly, DuPont manufactured white lead carbonate for a total of seven years.
If the paint Thomas ingested was applied before the 1920s, several of the defendants in this case could not have possibly produced the lead pigment that allegedly caused his injuries. Likewise, several defendants would have complete defenses if the paint Thomas ingested was applied in the latter portion of the twentieth century. However, Thomas has no idea when the paint he ingested was applied to his residences. The defendants are in no better position than Thomas to acquire this information. Liability for a company like DuPont, which produced the allegedly offending product for a mere fraction of the relevant time frame, can be based only on pure speculation and conjecture that its product caused Thomas's injury.
Thomas's inability to identify a narrow time frame to apply the Collins risk-contribution theory is dispositive because without a definitive time frame, the defendants will be unable to prove that they did not produce the injury-causing product in question. Collins specifically allowed a defendant to exculpate itself by proving "that it did not produce or market the subject DES either during the time period the plaintiff was exposed to DES or in the relevant geographical market area in which the plaintiff's mother acquired the DES." Collins, 116 Wis. 2d at 198. Here, the plaintiff cannot limit the applicable time frame to any reasonable or workable period for the defendants. In essence, the majority creates an irrebuttable presumption of causation in this case and extends Collins to a point where every paint pigment manufacturer that produced white lead carbonate at one time or another is absolutely liable because there is no realistic opportunity for these manufacturers to prove that they did not make the product that injured the plaintiff. In the words of Collins, Thomas cannot demonstrate that the paint manufacturers "reasonably could have contributed in some way to the actual injury." Id. at 191 n.10. The majority's opinion is so extreme that it essentially revives the broad risk-contribution theory that Collins expressly rejected. See id.
A second vital distinction between this case and Collins is that Thomas cannot prove that he ingested white lead carbonate. One of the prerequisites to the utilization of the Collins risk-contribution theory was proof "that the plaintiff's mother took DES." Collins, 116 Wis. 2d at 193. This fact alone should preclude extension of Collins because Thomas cannot demonstrate to a reasonable degree of scientific certainty what product allegedly caused his injury. Thomas is not suing lead paint manufacturers; instead, the defendants are being sued for manufacturing raw materials, white lead carbonate pigments, later incorporated into paints. While some defendants also produced lead paint, those that did are only being sued in their capacity as manufactures of this component product. In this case, Thomas simply cannot prove that white lead carbonate, as opposed to some other type of white lead pigment, or other leaded ingredient of paint, caused his injuries. While he may be able to prove that he ingested lead paint, he has not presented proof sufficient to overcome summary judgment that his injuries are attributable to the product for which the defendants are being sued for producing.
Ultimately, all Thomas can prove is that he has symptoms of lead poisoning and that white lead carbonate was used in some types of white lead paint. Although the defendants conceded, for purposes of their summary judgment motion, that Thomas "can prove that he was injured by lead ingestion that his source of lead ingestion was lead pain
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