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Thomas v. Mallett7/15/2005
included: "basic lead carbonate[,] basic lead sulfate, . . . red lead, lead chromates, leaded zinc oxides, lead silicates, lead titanates, litharge . . . ." Further, as previously noted, some painters utilized mixtures of paint that contained lead-free pigment but contained leaded dyers or thinners. Thus, the possible sources of lead in the paint Mr. Dragen analyzed were not limited to lead carbonate, sulfate, or chromate.
Dr. Mushak also conceded that Dr. White's market studies were limited only to the years 1937-1945. Here, the relevant time period is from the time the houses in which Thomas lived were constructed----1900 and 1905----until lead paint was banned----1980----roughly 80 years. Finally, when pressed at his deposition, Dr. Mushak admitted that he could not say "whether or not any of the lead that was in Steven Thomas was caused by some other form of lead other than white lead carbonate[.]" As he explained: "All I can go with is if ninety-nine percent of typical interior paints were basic lead carbonates and Steven Thomas shows up eating interior lead paint . . . I would say that . . . he probably ingested basic lead carbonate."
Numerous courts have held that this type of process of elimination theory of causation using generalized statistics is not sufficient as a matter of law to create an issue of fact as to what type of product caused the plaintiff's injury, especially when the analysis fails to account for other possible sources of the injury. " eneral statistics do not establish causation in a specific case." Doe v. United States, 976 F.2d 1071, 1087 (7th Cir. 1992). In Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 566-67, 597 N.W.2d 744 (1999), this court accepted the circuit court's conclusion that a similar process of elimination theory of causation "left" exposure to certain chemicals as the actual cause of an injury "'simply wrong as a matter of science and logic.'"
Similarly, in Smith v. Rapid Transit, Inc., 58 N.E.2d 754 (Mass. 1945), the Supreme Judicial Court of Massachusetts held that the plaintiff had failed to create a jury question as to the ownership of the bus that injured her by relying on the fact that the defendant operated the only bus franchise on the street in question:
While the defendant had the sole franchise for operating a bus on Main Street, Winthrop, this did not preclude private or chartered buses from using this street; the bus in question could very well have been one operated by someone other than the defendant. . . . t is 'not enough that mathematically the chances somewhat favor a proposition to be proved; for example, the fact that colored automobiles made in the current year outnumber black ones would not warrant a finding that an undescribed automobile of the current year is colored and not black, nor would the fact that only a minority of men die of cancer warrant a finding that a particular man did not die of cancer.' The most that can be said of the evidence in the instant case is that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident.
Id. at 755 (quoted source omitted)(emphasis added).
In Diversey Corp. v. Diversey Corp., 742 So.2d 1250, 1254 (Ala. 1999), the court ruled that "because [the plaintiff's expert] could not testify that a specific product caused [the plaintiff's] injuries, his testimony was mere conjecture and therefore not sufficient to create a genuine issue of material fact." Likewise, here, Mr. Dragen's analysis did not find evidence of white lead carbonate; it merely excluded two other types of lead pigments. As noted, the record indicates that there were other lead pigments in production for us
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