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Thomas v. Mallett7/15/2005
t[,]" they never conceded that Thomas's injuries were caused by white lead carbonate pigment. To the contrary, they clearly argued that Thomas "cannot prove that he ingested white lead carbonate and not some other form of lead pigment." Again, I emphasize that the defendants are being sued in their capacity as producers of white lead carbonate and not simply manufacturers of lead paint. The majority conveniently ignores Thomas's own admissions regarding his lack of proof with regard to the type of lead product that caused his injuries. For example, in their second set of interrogatories, the defendants inquired:
State whether you can identify by chemical formula, name, or composition the particular type or types of lead pigment (e.g., white lead carbonate) contained in the paint in that building or other property, and if you are able to do so, identify each particular type or types of lead pigment present in that building or other property.
Thomas answered: "No." The defendants further inquired:
State whether you know the chemical formula, name, or composition of the particular type or types of lead pigment (e.g., white lead carbonate) contained in the paint Steven Thomas is claimed to have ingested or inhaled at that building or other property, and if you do know, specify each type or types of lead pigment you claim he ingested.
Thomas answered: "No."
The majority relies on the testimony of two of the plaintiff's experts: Robert Dragen, an electron microscopist who analyzed paint samples from Thomas's residences; and Dr. Mushak, a toxicologist. Majority op., . According to the majority, this testimony is sufficient to create an issue of fact as to whether Thomas ingested white lead carbonate because Mr. Dragen's analysis found no trace of sulfur or chromium in the paint samples and lead sulfate, chromate, and carbonate "were the essential lead pigments used for residences." Majority op., . The majority notes Dr. Mushak testified that based on this evidence and a process of elimination analysis, the houses where Thomas lived contained white lead carbonate. Id.
Reliance on this testimony is problematic for several reasons. First, Mr. Dragen did not "render any kind of opinion regarding any chemical compounds in the paints analyzed[.]" Second, Mr. Dragen was not able to offer any opinions as to when the paint he analyzed was applied. Id.
Dr. Mushak's testimony is also highly problematic. Dr. Mushak's supplementary affidavit concluded, based on Mr. Dragen's analysis, that white lead carbonate was "the only likely" lead pigment Thomas ingested. This conclusion was based on the following reasoning: "the absence of detectable sulfur and chromium (0.05%) conclusively rules out any use of lead sulfate or lead chromate as lead pigments in these layers and further rules in basic lead carbonate." This reasoning was based on the assumption that white lead carbonate "was the overwhelming form of lead in [interior painting] pigments."
However, this final assumption was based on testimony concerning the market share of various white lead pigments that one Dr. Lawrence White provided in Brenner, 263 A.D.2d 165. However, the court in Brenner rejected this form of analysis noting: "Plaintiffs' own expert agreed that white lead carbonate accounts for only approximately 80% of the lead in all lead pigments used for interior paints between 1926 and 1955. The remaining 20% of the lead pigments found in interior paints may have been manufactured by defendants not named in this litigation." Id. at 171.
Significantly, the record reflects that a variety of leaded pigments were used in interior painting. These
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