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Thomas v. Mallett7/15/2005
that allegedly injured Thomas; as such, this case clearly does not fall within the theory of risk contribution originally formulated in Collins.
Yet another significant distinction between this case and Collins is that unlike DES, white lead carbonate is not fungible. As noted by the majority, majority op., , an important justification for adopting the risk-contribution theory was that "DES was, for the most part, produced in a 'generic' form." Collins, 116 Wis. 2d at 180. Furthermore, "DES was a fungible drug produced with a chemically identical formula." Id. As such, it was virtually impossible for the plaintiff to determine which DES manufacturer produced the DES that her mother ingested. See id. This commonality among DES forms was important because it assured that all DES manufacturers equally shared responsibility for the risk of injury posed by the drug.
As described previously, the defendants in this case have overwhelmingly demonstrated that lead paints and pigments were anything but generic, fungible, or chemically identical. To briefly restate, pigment manufacturers utilized different formulas for white lead carbonate that varied in terms of chemical composition, lead content, particle size, and hiding power. Further, the end product producers, the lead paint manufacturers, utilized different types and concentrations of white lead carbonate in different paint mixtures, depending upon the brand and the purpose for which the paint was to be applied. In other words, there was no single, identical formulation of white lead carbonate. These different formulas contained different amounts of lead, and hence, different levels of toxicity.
Thus, even if Thomas could provide scientific evidence that he ingested a white lead carbonate pigment, no uniform risk was presented among the varieties of white lead carbonate. As the different formulas contained different lead concentrations, they posed different risks of harm. Obviously, a mixture with a high lead concentration posed a greater risk than a mixture with a low lead concentration.
The Brenner court recognized the importance of this distinction from the DES cases when it rejected market share liability in an action against manufacturers of white lead carbonate:
All DES manufactured had an identical chemical composition. In contrast, lead-based paint is not a fungible product; it contains varying amounts of lead pigments, including white lead carbonate. Arguably, the white lead carbonate used as a raw material in some lead-based paint did not differ between manufacturers. However, paint manufacturers used differing amounts of white lead carbonate, or some other lead pigment, in their paints. Some lead-based paint contained 10% lead pigment, while other paint was more toxic, containing as much as 50% lead pigment. Not only did the amount of lead pigment vary, but so did the type of lead pigment used. Thus, unlike DES, the finished product that was used by consumers here, i.e., lead-based paint, was not fungible.
Brenner, 263 A.D.2d at 172. See also Skipworth, 690 A.2d at 173 (noting that unlike DES, which was "manufactured according to an identical formula and presented an identical risk of harm[,] . . . it is undisputed that lead pigments had different chemical formulations, contained different amounts of lead, and differed in potential toxicity"). Because neither white lead carbonate nor the lead-based paint into which these pigments were incorporated were generic or fungible, it would be inappropriate to apply the Collins risk-contribution theory here, as the defendants did not equally share responsibility for the risk posed by white lead carbonate, in contrast to the drug compan
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