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Alternate liability theory allowed in lead paint case.

The Wisconsin Supreme Court has ruled 4-2 that a boy who suffered brain injuries after ingesting lead paint as a toddler can sue paint manufacturers even though he doesn't know which ones made the paint that caused his injuries. (Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005).)

Applying the so-called risk-contribution theory to the case, the court noted that "many of the individual defendants or their predecessors-in-interest did more than simply contribute to a risk; they knew of the harm white lead carbonate pigments caused and continued production and promotion of the pigment notwithstanding that knowledge."

"The court properly held that each of the industry defendants contributed to the creation of a risk of harm to the public generally and Steven Thomas specifically," said the plaintiff's attorney, Peter Earle of Milwaukee.

Steven Thomas, now 14, suffers neurological disorders--including attention-deficit disorder and mild retardation--and is at high risk for future medical complications such as kidney and cardiovascular disease after ingesting paint chips and dust containing white lead carbonate pigments. The pigments were used in two houses built in 1900 and 1905 that Thomas lived in; he settled suits with the landlords of both houses.

In the current case against major lead-pigment manufacturers and companies that once sold lead-based paint, a state trial court granted summary judgment to the defendants in 1999, which an appellate court upheld in June 2004. The appellate court said Thomas had already received justice when he settled with the landlords. "He is not entitled to the exact remedy he might prefer," wrote Judge Ralph Fine.

Judge Richard Brown added that only the state's supreme court could extend the risk-contribution theory to apply to lead paint cases.

The theory was first presented in Wisconsin in Collins v. Eli Lilly Co., a class action by women who contracted vaginal cancer as a result of their mothers' taking the drug DES while pregnant. The state supreme court ruled that the plaintiffs did not have to identify the manufacturer or seller of the product believed to cause harm. (342 N.W.2d 37 (Wis. 1984).)

This decision came on the heels of Sindell v. Abbott Laboratories, another DES case, in which the California Supreme Court upheld the market-share liability theory. The court apportioned liability among the drug's manufacturers according to their share of the market for the product in the geographic area at the time it was used. (163 Cal. Rptr. 132 (1980).)

The risk-contribution theory considers market share as just one of the factors in determining a manufacturer's percentage of liability.

In Thomas, the plaintiff argued that those injured from exposure to lead paint have as much difficulty identifying the specific defendant that caused the harm as DES plaintiffs do. The defendants countered that the situation is different because plaintiffs can't narrow the time frame to a nine-month period, as DES plaintiffs can, and hundreds of manufacturers have been in and out of the business during the 80 years lead paint was used. In addition, lead poisoning is often exacerbated by environmental or other factors and can't be attributed to a single cause like taking a pill during pregnancy.

The Wisconsin Supreme Court rejected those distinctions. Like DES plaintiffs, Thomas "is unable to identify the precise producer of the white lead carbonate pigment he ingested at his prior residences due to the generic nature of the pigment, the number of producers, the lack of pertinent records, and the passage of time," Judge Louis Buffer Jr. wrote for the majority.

The court also found that the right-to-remedy section of the state constitution did not prevent Thomas from recovering simply because he had settled with a different wrongdoer for a different wrong. The defendants argued that the only "comparable justification" with Collins for awarding a remedy is when a plaintiff has no other recourse.

"The import of this argument," Butler wrote, "is that where recovery has been had against one tortfeasor, all other tortfeasors are absolved."

The defendants also argued that applying the risk-contribution theory violates their due process rights and principles governing retroactive liability. "These constitutional issues are not ripe," the court ruled, and it remanded the case for trial.

"The Thomas case really amounts to nothing more than the next logical step in the progression of the common law as it applies to causation in the context of mass torts involving generic products that are inherently toxic," said Earle.

Drug cases and lead paint cases are two of the rare circumstances where the risk-contribution theory may apply, said Robert Daley, a Pittsburgh attorney who supports the use of alternate theories to hold the lead paint industry liable for its conduct.

"There has certainly been no rush to the courthouse to file cases under the market-share or risk-contribution theories, and I do not foresee any rush to expand the theory in Wisconsin or elsewhere," he said.

A case like Thomas's is time consuming and expensive, he said. "I believe it will be only the most severely injured kids that might proceed under this theory, and even then it might not be pursued if there are other conventional forms of relief available."
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Title Annotation:Wisconsin
Author:Porter, Rebecca
Publication:Trial
Date:Oct 1, 2005
Words:852
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