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Thomas v. Mallett7/15/2005
Parlee, Overcoming the Identification Burden in DES Litigation: The Market Share Liability Theory, 65 Marq. L. Rev. 609, 635 (1982).
In contrast, there is no such signature injury in lead poisoning cases. Thomas's injuries could have occurred as a result of the ingestion of lead from a wide variety of sources. See Brenner, 263 A.D.2d at 173 ("Plaintiffs allege that [the child] sustained injuries to his central nervous system, including difficulties with concentration, abstract thinking, and comprehension. But injuries could have been caused by some source other than lead, or even by a source of lead other than lead-based paint.").
Contrary to the majority's assertion, majority op. -57, this lack of a signature injury should be dispositive because as noted, the second prerequisite for utilization of the Collins risk-contribution theory was that the plaintiff had to prove "that DES caused the plaintiff's subsequent injuries." Collins, 116 Wis. 2d at 193. In this case, Thomas simply cannot prove that white lead carbonate, as opposed to another lead pigment or another source of lead in paint, caused his injuries.
Even assuming, arguendo, that Thomas can prove he was injured by white lead carbonate, other important distinctions exist between this case and Collins. For instance, unlike Collins, this case does not involve a finished product over which the defendants had exclusive control that was utilized for its intended purpose. In Collins, the manufacturers sought FDA approval of DES and marketed the drug directly to consumers. See id. at 191. Except for differing doses, the DES did not change between the time of manufacture and consumption. As such, the manufacturers had exclusive control over the risk their product posed to the public. In contrast, the "differing formulae of lead paint has a direct bearing on how much damage a lead paint manufacturer's product would cause." Skipworth, 690 A.2d at 173. As the Brenner court noted:
he manufacturers of white lead carbonate did not have exclusive control of the risk. The paint manufacturers, rather than the lead pigment manufactures, decided which pigments to use and in what quantities. In addition, owners and landlords of residences had control of some of the risk posed by lead-based paint, which becomes hazardous when it peels and flakes and is then ingested or the dust inhaled. Owners and landlords could control such risk by proper maintenance of their property. Furthermore, manufacturers of DES intended that their product be ingested by pregnant women to prevent miscarriages. In contrast, white lead carbonate or lead-based paint is not intended for ingestion and obviously was not marketed for such a use.
Brenner, 263 A.D.2d at 172-73.
The plaintiff here is suing the manufacturers of an ingredient in a finished product that caused injury because it was not utilized for its intended purpose. In Collins, the manufacturers made, marketed, and sold the final product to the consumer and thus had control over the end product. White lead carbonate manufacturers that did not also manufacture lead paint had no control over how much of their pigment was incorporated into the final product or whether it would be used for residential purposes. Paint manufacturers made the ultimate decision in regard to the types, combinations, and amounts to use in the formulation of their final paint product. Any given painter had a unique way of mixing paints depending on the purpose for which the paint was to be used. Further, none of these individuals could have controlled whether a child ingested paint chips. The raw material suppliers, therefore, did not have exclusive control over the risk of the product
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