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Thomas v. Mallett7/15/2005
its own products, but also of all generically similar products manufactured by its competitors." Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 336 (Ill. App. Ct. 1991) (quoting Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1483 (11th Cir. 1985)).
The Illinois Supreme Court articulated similar concerns when it too rejected all variants of market share liability in Smith, 560 N.E.2d 324.
We have not in the past been hesitant to develop new tort concepts; however, in this instance we decline to do so because of the infirmities in the proposed theory. Furthermore, this is too great a deviation from a tort principle which we have found to serve a vital function in the law, causation in fact, especially when market share liability is a flawed concept and its application will likely be only to a narrow class of defendants.
Id. at 344-45.
For an example of the harsh consequences of the majority's decision, one need look no further than to the recent decision of Haase v. Badger Mining Corp., 2004 WI 97, 274 Wis. 2d 143, 682 N.W.2d 389. In Haase, the plaintiff sued the manufacturer that provided silica sand to the foundry where the plaintiff worked. Id., -5. With the expansion of the Collins risk-contribution theory to the facts of this case, plaintiffs, such as those in Haase, can now sue the entire raw material industry and place the burden on each individual defendant to disprove their presumptive liability. Plaintiffs will have no incentive to locate the party that actually caused the injury. The majority's drastic expansion of the risk-contribution theory clearly distorts the original rationale behind the Collins decision and will have drastic consequences for business in this state.
Collins represented a departure from traditional principles of causation that was justified under the unique facts in that case. As detailed above, other than having a plaintiff who cannot identify which manufacturer's product injured him, this matter and Collins have little in common. As noted by the Brenner court, 263 A.D.2d at 173, " he inability to identify a narrow time period in which to apply the market share theory, the absence of a fungible product, and the absence of a signature injury are among the reasons that other courts have refused to apply the market share theory in lead poisoning cases." Furthermore, the resounding weight of authority does not support such a fundamental change from conventional tort law principles, in any context outside of the DES scenario. Indeed, "market share liability theory has been rejected in most other types of products liability cases including those involving asbestos, breast implants, vaccines, lead paint, and gasoline." Madden & Owen ยง 24:7, at 672 (collecting cases).
As it is clear that this case is entirely factually distinct from Collins, the majority's decision represents a radical expansion and not a mere application of Collins. By expanding the scope of Collins to this case, the majority has essentially adopted a version of risk-contribution theory explicitly rejected in Collins. In other words, the majority's opinion is unjustified, unprecedented, and unwise.
IV.
In sum, the majority opinion disregards the pertinent facts of this case, misconstrues our Article I, Section 9 jurisprudence, and ignores the numerous factual distinctions between this case and Collins. In so doing, the majority relaxes the traditional rules of causation beyond what was accomplished in Collins and eliminates any possibility that the defendants in this case will be able to present a defense. Thus, its decision amounts to no less than absolute liability for the manufacturers
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