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Thomas v. Mallett7/15/2005
7. Some courts have simply denied extension of market-share liability under these circumstances and thus denied lead pigment plaintiffs recovery. However, the question presented is whether Collins' risk-contribution theory should be extended to white lead carbonate claims. We agree that it should.
The following backdrop provides the relevant context for determining whether Collins' risk-contribution theory should be recognized for white lead carbonate claims. It is by no means a complete discussion of the history of white lead carbonate, but rather is assembled pursuant to our standard of review that the facts are to be construed in the light most favorable to Thomas as the nonmoving party. See Grams, 97 Wis. 2d at 339.
A. The Problem of Lead Poisoning from Lead-Based Paints
According to the Center for Disease Control's ("CDC's") Preventing Lead Poisoning in Young Children, 1 (Oct. 1991) (hereinafter "Preventing Lead Poisoning"), it is well-recognized that given children's rapidly developing nervous systems, " hildren are particularly susceptible to lead's toxic effects." Id. Because the human body cannot differentiate between lead and calcium, after lead has remained in the bloodstream for a few weeks, it is then absorbed into bones, where it can collect for a lifetime. EPA, Lead In Your Home: A Parent's Reference Guide, 4 (June 1998). Once lead enters the child's system, more lead is absorbed than would be in adults. Preventing Lead Poisoning, 11.
Children "are more exposed to lead than older groups because their normal hand-to-mouth activities may introduce many nonfood items into their gastrointestinal tract." Id. The CDC noted that " ica, the repeated ingestion of nonfood substances, has been implicated in cases of lead poisoning; however, a child does not have to eat paint chips to become poisoned." Id., 18. It is more common for children to ingest dust and soil contaminated with lead from paint that either has flaked or chalked as it aged or has been otherwise disturbed during home maintenance or renovation. Id., 18. "This lead-contaminated house dust, ingested via normal repetitive hand-to-mouth activity, is now recognized as a major contributor to the total body burden of lead in children." Id., 18. Thus, " ecause of the critical role of dust as an exposure pathway, children living in sub-standard housing and in homes undergoing renovation are at particular risk for lead poisoning." Id., 18.
The consequences of child lead poisoning are well documented. According to the CDC:
Very severe lead exposure in children (blood lead levels >80 ug/dL) can cause coma, convulsions, and even death. Lower levels cause adverse effects on the central nervous system, kidney, and hematopoietic system. Blood lead levels as low as 10ug/dL, which do not cause distinctive symptoms, are associated with decreased intelligence and impaired neurobehavioral developments.
Id., 9. The CDC also states that "the weight of the evidence clearly supports the hypothesis that decrements in children's cognition are evident at blood lead levels well below 25 ug/dL." Id.
Although lead can originate from many different materials, such as food, soil, water, or air, lead paint is the primary culprit. The CDC concluded that " ead-based paint is the most common source of high-dose lead poisoning." Id., 65. "Numerous studies have established that the risk of lead poisoning is related to the presence of lead-based paint and to the condition of such paint." Id., 18. As the United States Department of Health and Human Services determined in Toxicological Profile for Lead, 407 (July 1999):
he most common source of lead expos
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