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Thomas v. Mallett7/15/2005
e in interior painting other than carbonates, sulfates, chromates, including lead silicate, lead titanates, and litharge. Furthermore, the record indicates that individual painters often added leaded thinners or dyers to non-leaded pigments. Thomas's expert's statistical process of elimination simply fails to account for these other alternative sources of lead in paint. As such, it is mere speculation or conjecture to contend that white lead carbonate caused Thomas's injuries. Id. ("'"Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause."'") (quoting Southern Ry. Co. v. Dickeson, 100 So. 665, 669 (Ala. 1924) (quoted source omitted)).
Similarly, in Guenther v. Armstrong Rubber Co., 406 F.2d 1315, 1318 (3d Cir. 1969), the court held that proof that the defendant made up to 80 percent of the tires sold in the store where the plaintiff worked and was injured was not sufficient to establish that the defendant made the tire that harmed the plaintiff. The court ruled: " here was no justification for allowing plaintiff's case on that so-called probability hypothesis to go to the jury. The latter's verdict would at best be a guess. It could not be reasonably supported." Id. See also 63 Am. Jur. 2d Products Liability ยง 50 (1996) ("A verdict with respect to proximate causation may not be based on mere theory, conjecture, speculation, or surmise. Thus, where the evidence reveals several possible causes of the accident, it is improper to allow the jury to guess which cause might have been the proximate cause.")(emphasis added).
Thus, the fact that Thomas's expert was able to exclude two types of pigment from the paint samples provided to him is simply not legally sufficient to establish that white lead carbonate was the cause of Thomas's injuries, as there were other lead pigments and ingredients used in interior paint that could have caused Thomas's injuries and Dr. Mushak testified that he could not say whether the lead found in Thomas was from some form of lead other than white lead carbonate. Thomas's experts did not find any scientific evidence that the paint at his residences contained white lead carbonate, and Thomas himself admitted that he is unable to identify white lead carbonate as the cause of his injuries in his answers to the defendants' interrogatories.
As such, unlike Collins, where the plaintiff could not establish the identity of the manufacturer of the drug her mother had taken, here, Thomas cannot prove the identity of the manufacturer or the identity of the product. That Thomas cannot prove he was injured by white lead carbonate is not a trivial point; the defendants are being sued in their capacity as producers of white lead carbonate. Collins itself required proof "that DES caused the plaintiff's subsequent injuries." Collins, 116 Wis. 2d at 193. To hold multiple defendants liable for a product they all produced when the plaintiff cannot identify which one of them produced the specific product that injured him is one thing; it is quite another to hold multiple defendants liable for a product they all produced when the plaintiff cannot even establish that product caused his injuries.
In addition, another related distinction exists between this case and Collins. Unlike DES, white lead carbonate does not produce a "signature injury." DES plaintiffs suffered from a specific, rare form of cancer strongly associated with maternal ingestion of DES. Collins, 116 Wis. 2d at 179. In other words, "the plaintiffs' injuries were uniquely traceable to a single product[.]" Randy S.
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