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On July 15, the Wisconsin Supreme Court significantly expanded the potential liability of product manufacturers sued in Wisconsin’s courts. The controversial 4-2 ruling, rendered in a case against companies and alleged successors that long ago made lead pigment used in house paint, has drawn strong criticism from business groups inside and outside Wisconsin. Thomas v. Mallett, 2005 WI 129 (2005) 

The seeds of the July 15 Wisconsin Supreme Court opinion were sown two decades ago. Traditionally, in the product liability context, a product manufacturer can be held responsible only for harm that its products cause, not harm from products manufactured by others. 

In the mid-1980s, a handful of states’ courts, including the Wisconsin Supreme Court, relaxed this “manufacturer identification” requirement for one type of case — personal injury cases against drug companies that made diethylstilbestrol (“DES”). DES is a drug taken by women to prevent miscarriage. It causes a rare form of cancer in daughters exposed to it in utero. In the DES cases, the plaintiffs could not prove who produced the drug their mothers ingested. The various drug companies made identical products, which they marketed generically. The drug created a unique or “signature” injury readily identified as having been caused by DES exposure, and the period of exposure was clear — the nine months of pregnancy. Under these facts, a handful of states’ highest courts, including the Wisconsin Supreme Court, held that a plaintiff could proceed against DES manufacturers under a “collective liability” theory without having to show which company’s product caused her harm. In most states, the plaintiff was permitted to sue companies composing a significant percentage of the market at the time of exposure, and each defendant could be held liable only for its market share at that time. In Wisconsin, the supreme court adopted a unique, aggressive “risk contribution” theory, which permitted the plaintiff to sue only one company and to recover 100 percent of her damages from that company — without any proof that the company’s product caused her harm. 

In Thomas, the court expanded the “risk-contribution” theory of liability, applying it to former manufacturers of lead pigment used in house paint. By way of background, the sale of lead-based paint for consumer uses has been banned since the 1970s. Most interior lead paint was applied before the 1930s. The paint companies put various types and amounts of lead pigment in paint. Most old houses have numerous layers of lead and non-lead paint on them. It is impossible to determine whose lead pigment is on the walls of any house. Further, the cause of risks from lead paint today is clear — property owners who fail to properly maintain their properties and thereby create lead paint risks for young children. In Wisconsin, landlords are required by law to address lead hazards. Given these facts, every federal court and state high court that has ruled on collective liability in lead pigment cases has rejected it. The Pennsylvania Supreme Court said, “Application of market share liability to lead paint cases . . . would lead to a distortion of liability which would be so gross as to make determinations of culpability arbitrary and unfair.” Skipworth v. Lead Industries Ass’n, 690 A.2d 169, 172 (Pa. 1997).

In Thomas, the 4-2 majority (with one Justice not participating) adopted a theory never seen before in any state or federal court. According to a dissent by Justice Jon P. Wilcox, the opinion “…[w]ill ensnare numerous defendants and have drastic consequences for firms doing business in Wisconsin.”1 The opinion will have a “profound effect” on products liability law, he added: “Under the majority opinion, plaintiffs will be encouraged to sue entire industries rather than locate the defendant that manufactured the product that caused the injury.”2

In another dissent, Justice David T. Prosser said the majority opinion “raises the very real possibility that innocent defendants will be held liable for wrongs they did not commit”3 since “the plaintiff need not show the evidence that is normally most critical in tort cases: that the defendant’s product injured the plaintiff.”4

Thomas Case Background

The Wisconsin lead pigment case involved a plaintiff and a product separated by as much as 90 years between the date of manufacture and the date of alleged injury. The plaintiff in Thomas alleged that he was injured by lead paint dust he ingested as a young child during the 1990s. The plaintiff lived in two different Milwaukee rental houses, one built in 1900 and the other in 1905, when the use of lead paint was common. 

Earlier in the case, Thomas had settled for a total of about $325,000 from the insurers of the two landlords at issue, settling with one without suing and suing the other claiming that he had negligently maintained the lead paint in the home. The remaining defendants were former manufacturers of lead pigment used in paint or their alleged successors. 

At issue was whether to extend the “risk-contribution” theory of Collins v. Eli Lilly & Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984) beyond the unique situation involving DES.

Defendants in the lead pigment case said Collins should not be applied because it was factually dissimilar — lead pigment varied significantly from manufacturer to manufacturer and paint companies, not pigment companies, decided which pigment and how much to put in paint; it does not cause a signature injury, i.e., there are many sources of lead and many factors other than lead exposure that can cause the type of cognitive difficulties claimed by the plaintiff. The lead in the homes at issue could have been applied over nearly 100 years. The defendants would be unable to show that they did not make any lead on any of the walls. Finally, the defendants said that this radical expansion of Collins was not necessary — the defendant had recovered from the proper parties: the landlords who failed to comply with their statutory duty to address lead hazards in their buildings. 

During the 20 years after the Collins case, neither the Wisconsin court nor any other court, had extended the Wisconsin “risk contribution” theory to products other than DES. The Thomas plaintiff’s efforts to extend risk contribution to former lead pigment producers had been unsuccessful in the lower courts. The trial court concluded that the plaintiff’s situation was not analogous to DES because, among other reasons, Thomas had another avenue to collect damages through the landlords, who, according to Wisconsin state law, are responsible for maintaining lead paint. The court of appeals affirmed, writing: 

Here, unlike the situation in Collins, Thomas had ‘an already existing right’—a remedy for his injuries; as noted, he filed and then settled an action against the owner of one of the houses, and settled his claims against the other owner without filing suit. …Although undoubtedly Thomas would like to have additional ‘deep pockets’ to plumb, on top of the approximately $325,000 he received in settlement from both owners, he is not entitled to the ‘exact remedy’ he might prefer.5 

The supreme court case drew amicus briefs from numerous organizations in opposition to applying the risk contribution theory to lead pigment. One brief, from the Product Liability Advisory Council, noted that industry-wide non-identification liability, as advocated by the plaintiff, had been rejected in cases involving a wide range of other products such as multi-piece wheels, vaccines, pipe, latex gloves, wire, insulation, batteries, perfume, fish, blood products, roofing materials, tape, dye and clothes.6 

The negative effect on the Wisconsin business community of applying risk contribution theory to lead pigment was addressed in amicus briefs submitted by the Wisconsin Manufacturers and Commerce, and jointly by the African-American Chamber of Commerce and the Hispanic Chamber of Commerce of Wisconsin. The latter brief noted that the theory, if applied, “would have a direct and serious impact on the minority business community.”7

Wisconsin Supreme Court Opinion In its 4-2 ruling, the Wisconsin Supreme Court held: “Although this case is not identical to Collins, we conclude that it is factually similar such that the risk-contribution theory applies.”8 It found, for example, that “fungibility” did not require chemical identity. It said that 6 lead pigment and DES are both “in a sense on the same footing as being inherently hazardous.”9 (The court also upheld the dismissal of civil conspiracy and enterprise liability claims against the companies.) The supreme court said that former pigment manufacturers were culpable for, at a minimum, contributing to creating a risk of injury to the public. The court added:

…[a]s compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business.10

The court then outlined five elements that the plaintiff will have to prove to apply the risk-contribution theory to Thomas’s strict products liability claim: (1) white lead pigment was defective when it left the possession or control of the pigment manufacturers; (2) it was unreasonably dangerous to the user or consumer; (3) the defect was a cause of the plaintiff’s injuries or damages; (4) the former pigment manufacturers engaged in the business of producing or marketing white lead carbonate; and (5) the product was “one which the company expected to reach the user or consumer without substantial change in the condition it was when sold.”11 The court added: 

The procedure is not perfect and could result in drawing in some defendants who are actually innocent, particularly given the significantly larger time span at issue in this particular case. However, Collins declared that ‘we accept this as the price the defendants, and perhaps ultimately society, must pay to provide the plaintiff an adequate remedy under the law.12 

Wisconsin law states that property owners are responsible for maintaining lead paint, not the former manufacturers of lead pigment, which lost control of their product once it left the factory decades ago. Chipping, flaking and peeling paint occurs when it is not properly maintained, and property owners have the responsibility of performing that maintenance. Despite the prevailing law in the state, the court said that “whoever had ‘exclusive’ control over the white lead carbonate is immaterial.”13

Dissenters said the new standards would have a significant effect not only on lead paint cases, but on products liability cases broadly. Justice Jon P. Wilcox wrote that the opinion was an “unprecedented relaxation of the traditional rules governing tort liability.”14 With the expansion of the Collins risk-contribution theory to the Thomas case, plaintiffs “can now sue the entire raw material industry and place the burden on each individual defendant to disprove their presumptive liability,”15 he said.

In another dissent, Justice David T. Prosser said: 

The white lead carbonate at issue may have been produced as much as 100 years ago. It is almost impossible to defend against alleged negligence that no living person can remember….The recent negligence of a landlord in allowing the paint to deteriorate seems greater than the negligence of the manufacturer of one of the raw materials used to make the paint perhaps a half century ago.16

Prosser added that “Wisconsin will be the mecca for lead paint suits….[T]his court has now created a remedy for lead paint poisoning so sweeping and draconian that it will be nearly impossible for paint companies to defend themselves, or, frankly, for plaintiffs to lose.”17

 

Endnotes

1 Thomas v. Mallett, 2005 WI 129, Wilcox dissent, page 45, paragraph 257. 

2 Ibid. 

3 Thomas v. Mallett, 2005 WI 129, Prosser dissent, page 12, paragraph 297. 

4 Ibid., page 9, paragraph 291. 

5 Thomas v. Mallett, 275 Wis. 2d 377, Paragraph 7. 

6 Amicus Curiae Brief of Product Liability Advisory Council, Page 8. 

7 Amicus Curiae Brief of African-American Chamber of Commerce, Inc. and Hispanic Chamber of Commerce of Wisconsin, Inc., Page 6. 

8 Thomas v. Mallett, 2005 WI 129, Majority opinion, Page 70, Paragraph 131. 

9 Ibid., Page 75, Paragraph 140. 

10 Ibid., Page 72, Paragraph 136. 

11 Ibid., Page 85, Paragraph 162. 

12 Ibid., Page 87, Paragraph 164. 

13 Ibid., Page 84, Paragraph 160. 

14 Thomas v. Mallett, 2005 WI 129, Wilcox dissent, Page 1, Paragraph 178. 

15 Ibid., Page 46, Paragraph 259. 

16 Thomas v. Mallett, 2005 WI 129, Prosser dissent, Page 16, Paragraphs 308 and 309. 

17 Ibid., Page 2, Paragraph 268.

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