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Thomas v. Mallett7/15/2005
how that its specific product did not cause the injury. To mount a successful defense, a manufacturer would have to disprove the presumed link that the plaintiff admittedly cannot prove and need not prove. It goes without saying that DNA testing does not apply to paint chips or dust.
The majority's modification of the well-settled elements of negligence and strict products liability violates the defendants' constitutional rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. This deprivation is underscored by the majority's departure from longstanding principles of tort liability.
DUE PROCESS
The Fourteenth Amendment provides in part that no "State [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Supreme Court has repeatedly held that "' ue process' has never been, and perhaps can never be, precisely defined." However, both this court and federal courts have repeatedly characterized the immutable core of due process as "fair play." The precepts laid out in the majority opinion are fundamentally unfair and at odds with traditional notions of fair play.
The defendants' constitutional arguments could be construed as alleging violations of substantive due process or procedural due process. Substantive due process "'protects against governmental actions that are arbitrary and wrong "regardless of the fairness of the procedures used to implement them."'" Procedural due process "addresses the fairness of the manner in which a governmental action is implemented." The majority opinion violates the defendants' constitutional rights under both theories.
A. Procedural Due Process
The defendants contend that they will be denied the opportunity to present a defense under well-settled tort theory: the defense that their products did not cause the plaintiff's injury. This argument is not aggressive or overreaching. It simply demands the right to be heard, implicating the "fairness of the procedures" by which liability is determined.
What process is due these defendants? "'Due process is flexible and calls for such procedural protections as the particular situation demands.'"
To determine the process due in a particular situation, the Supreme Court has often recited a three-factor balancing test. The Court balances (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest in the matter, including the governmental function involved and any fiscal or administrative burdens that additional or substitute procedural requirements would entail. This tripartite formulation dates back at least as far as Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
The majority opinion sets up an irrebuttable presumption of causation: if the plaintiff can show that the defendant manufactured white lead carbonate sometime between 1900 and 1978, and that some form of white lead carbonate caused the plaintiff's injury, the defendant will be held liable. The defendant has no opportunity to show that its particular product did not cause the plaintiff's injury. It is faced with no-fault liability.
Given this inequity, the determining factor in the Mathews test is the second factor: the risk of erroneous liability inherent in the procedure the majority implements today. It completely tips the Mathews balance.
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