Court rejects market share theory in lead paint case.

A woman suing over injuries caused by lead poisoning lost a critical battle in September when the First Circuit Court of Appeals refused to accept her market share liability theory. The court said liability could not be fairly distributed among manufacturers of the white lead used in lead paints because the injured woman could not pinpoint when the paint was applied to her home. (Santiago v. Sherwin-Williams Co., 3 F.3d 546 (1st Cir. 1993).

Monica Santiago, 22, spent the first six years of her life in a Boston home where multiple layers of lead-based paint had been applied between 1917 and 1970. She was diagnosed with a hyperactivity-attention disorder and motor-skills difficulties linked to lead poisoning. Because Santiago was unable to identify which company provided the lead she ingested, she argued that all manufacturers of lead used in paints should be held liable under a market share liability theory.

The First Circuit affirmed summary judgment for the defendants, holding that to apportion liability fairly, Santiago would have to identify when the injury-causing lead paint was applied to her home. "[D]efendants' contributions to the lead paint market varied significantly" from 1917 to 1970, the court said, and some were not in the market at all for parts of that period.

"This, of course, raises a substantial possibility that these defendants not only could be held liable for more harm than they actually caused, but also could be held liable when they did not, in fact, cause any harm to plaintiff at all." Judge Norman Stahl wrote.

The opinion also rejected Santiago's concert-of-action theory, which alleged that the companies should be held liable for actions they took between 1930 and 1945 as members of the Lead Industries Association, a trade group. Santiago argued that despite growing medical evidence of the dangers of lead paint, the companies worked together to promote the product, undermine adverse research findings, and resist government regulation.

The court held that there was no evidence that these actions "had any role in causing lead paint to be applied to the walls of her childhood home." It said a jury could only speculate that the companies' marketing activities resulted in Santiago's injuries.

The defendants in the case are Sherwin-Williams Co.; NL Industries, Inc.; Eagle-Picher Industries, Inc.; Atlantic Richfield Corp.; and SCM Corp.

Neil Leifer, a Boston attorney representing Santiago, said his client did not plan to appeal. But he added that market share liability could be applied in other cases with different facts.

"The First Circuit has recognized that the theory is viable," Leifer said. "We just need to have a record that more specifically identifies the time period that the paint was applied so that we can match the manufacturers that were in the market at the time."