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Thomas v. Mallett7/15/2005
. Cal. 1996), the court held that various perfumes and colognes were not fungible goods. "Just as the court of appeal in Mullen held that asbestos was not the 'simple equivalent ' of DES, the fragrance products which plaintiff contends caused her injuries are not fungible goods made from an identical formula and therefore cannot be equated with the DES at issue in Sindell." Id. The court further observed that "the only difference between DES manufactured by Eli Lilly and DES manufactured by Abbott was the return address on the package sent by the manufacturer to the pharmacy. Such is not the case here." Id. The district court then applied the rationale of Mullen to the facts before it and concluded that the "defendants' fragrance products all (at least allegedly) contain aldehydes, but each contains different types of aldehydes, with different physical properties, at different levels of concentration. It would therefore be contrary to Mullen to apply the market-share theory in this case." Id. at 992. Furthermore, in its analysis the court determined that Wheeler was "highly distinguishable" and, therefore, not applicable. Id. at 992 n.10.
Likewise, in Doe v. Cutter Biological, 852 F. Supp 909, 913 (D. Idaho 1994), the court determined that Factor VIII, a clotting agent, was not a fungible drug. As stated by the court:
Unlike DES, Factor VIII is not a generic, fungible drug. Each processor prepares its Factor VIII concentrate by its own proprietary processes using plasma collected from its own sources. Each firm's Factor VIII concentrate is clearly distinguishable by brand name, package color, lot number, and number of units of Factor VIII per vial; each firm's Factor VIII concentrate is separately licensed by the Food and Drug Administration. There is no evidence that all Factor VIII products caused or were equally capable of causing HIV infection. Thus, the risk posed by the different brands of Factor VIII is not identical.
Id. (quoting Smith v. Cutter Biological, Inc., 823 P.2d 717, 733 (Haw. 1991) (Moon, J., concurring in part, dissenting in part)). Thus, the court refused to apply the market share theory of liability against the providers of Factor VIII.
Unfortunately for the defendants in this case, it is not obvious to the majority that the varieties of lead paint containing differing concentrations and compositions of white lead carbonate did not create equivalent risks of harm. Furthermore, a defendant like DuPont, which manufactured and marketed white lead carbonate for only seven years, did not create the same risk of harm as a defendant like Sherwin-Williams, which manufactured and marketed white lead carbonate for 37 years.
By ignoring or downplaying the significance of these factual distinctions and focusing solely on the policy articulated in Collins of allowing an injured plaintiff to recover, the majority casts a wide net that will ensnare numerous defendants and have drastic consequences for firms doing business in Wisconsin. Further, applying the Collins risk-contribution theory to a case such as this one----where the deficiencies in the plaintiff's proof are above and beyond the mere inability to identify the precise manufacturer of a generic, chemically identifiable, fungible product that was produced during a limited time frame----will have a profound effect on products liability law. Under the majority opinion, plaintiffs will be encouraged to sue entire industries rather than locate the defendant that manufactured the product that caused the injury. An individual defendant will have almost no ability to contest causation. Furthermore, "elimination of a causation requirement [will] render every manufacturer an insurer not only of
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