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Thomas v. Mallett7/15/2005
ies that manufactured and marketed DES.
The majority drastically lowers the threshold for fungibility articulated in Collins by concluding that all forms of white lead carbonate are fungible. The majority recognizes that white lead carbonate was made from three different chemical formulas, while DES was made from only one. Majority op., . Nevertheless, the majority concludes that fungibility does not require chemical identity. Id. The majority stresses that for the purposes of fungibility, it is the "common denominator in the formulas that counts: lead." Id., . The majority goes on to state that "the formulas for both DES and the white lead carbonate are in a sense on the same footing as being inherently hazardous." Id. There is simply no basis in Collins or any of the cases from other jurisdictions, applying market share liability, for establishing such a low threshold for fungibility.
With this misconceived focus on a "common denominator," and an "inherently hazardous" formula, the majority has drastically expanded the intended parameters of Collins. The majority's reasoning is clearly flawed and virtually eliminates the fungibility requirement, as now all finished products containing a common raw material are fungible. As Sherwin-Williams indicates, under the majority's rationale, victims of a shooting who cannot identify a gun manufacturer could sue all steel companies, a person injured by a drain cleaner could sue all producers of sodium hydroxide, and one who is injured in a fire started by matches could sue all producers of sulfur.
Thus, under the majority's rationale, white lead carbonate could be considered fungible with other forms of lead pigment, lead sinkers for fishing poles, lead pencils, or lead pipes. Similarly, under the majority's rationale, all types of tires are fungible because they all contain rubber. If all that is required is a "common denominator," then a plaintiff could sue the manufacturers of all these products because they are all, under the majority's rationale, "fungible" for the purposes of Collins, as they all contain a common offending ingredient.
The majority cites to a California asbestos case, Wheeler v. Raybestos-Manhattan, 11 Cal. Rptr. 2d 109 (Cal. Ct. App. 1992), for support of its conclusion that the common denominator is what matters for purposes of fungibility. However, the Wheeler case is clearly the minority view:
ther authority finds market share liability inappropriate where the substance, such as asbestos, is not fungible as was DES, and had widely varying ranges of toxicity, depending upon its form and use. Nonfungibility between and among the several types of asbestos has generally precluded application of market share liability to claims for asbestos-related personal injury , although California courts have recognized that an exception might exist in asbestos-containing brake pad litigation. [See Wheeler, 11 Cal. Rptr. 2d 109.] Thus, courts evaluating claims of asbestos-related injury have declined to extend market share liability because while "all of the asbestos products shared an important characteristic in that they all contained asbestos fibers, . . . they also possessed divergent characteristics, such as the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product."
Madden & Owen ยง 24:7, at 662-63 (quoting Mullen v. Armstrong World Indus., Inc., 246 Cal. Rptr. 32, 36 (Cal. Ct. App. 1988)) (footnotes omitted)(emphasis added).
Furthermore, the majority has overstated the holding of Wheeler. As correctly stated by the North Dakota Supreme Court:
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