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Thomas v. Mallett7/15/2005
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The risk of error created by the majority opinion is enormous. Because Thomas cannot prove which of multiple layers of paint injured him, the defendants cannot show that they did not produce, or more precisely, could not have produced, the white lead carbonate in that layer.
The plaintiff need not show the evidence that is normally most critical in tort cases: that the defendant's product injured the plaintiff. The plaintiff need not show that a defendant produced white lead carbonate during a particular time span (except a time period (1900-1978) of more than three quarters of a century), or that the defendant produced a type of white lead carbonate with an identical chemical formula to the product that injured the plaintiff, or even that a particular defendant's products could have injured the plaintiff.
This is true even though many of the defendants produced white lead carbonate for only a small fraction of the 78-year period during which paint containing white lead carbonate could have been applied to the walls of Thomas's three residences.
To illustrate, DuPont manufactured white lead carbonate for only seven years (1917-24). SCM manufactured white lead carbonate for 34 years (1924-1958). Sherwin-Williams manufactured white lead carbonate for 37 years (1910-47). Under the majority opinion, a plaintiff may just as easily recover from a defendant such as DuPont (which made the product for seven years) as another defendant that produced it for eleven times seven years. There is no rhyme or reason to such a result.
DuPont, for example, would have no way to prove that it did not manufacture the white lead carbonate that injured the plaintiff, because the plaintiff could not prove when the white lead carbonate he ingested was used in paint, when that paint was applied to his multiple residences, or which of multiple layers of paint in three residences (or the dust therefrom) allegedly injured him. These shortcomings in the majority's reasoning illustrate why this case is very different from Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984), in which the plaintiff could point to a nine-month span in which she could have been injured, and in which many similarly situated plaintiffs could identify distinguishing characteristics about the DES pills they took.
These shortcomings are the reason that no other court has ever adopted any form of market share liability in lead paint cases. "The public policy reasons favoring the use of market share do not control where there is a possibility that the defendants did not cause the harm in question." The shortcomings are the reason that learned commentators advise that " he greater the span of time within which the potentially injury-causing product was sold, the less suited market share liability will be." They are probably the reason why, despite calling Wisconsin the "last hope" for lead paint plaintiffs, even a prominent member of the plaintiffs' bar commented, "I just don't see it happening," when asked about the plaintiff's chance of success in this case.
As another court stated in rejecting an identical claim, "application of the market share theory to this situation would virtually ensure that certain pigment manufacturers would be held liable where they could not possibly have been a potential tortfeasor."
The majority opinion raises the very real possibility that innocent defendants will be held liable for wrongs they did not commit. To avoid the risk of erroneous verdicts, Thomas should have to show specific product causation and the defendants should be allowed a fair chance to show that their products did not injure Thomas. Neither princi
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