Thomas Ex Rel. Gramling v. Mallett

Steven Thomas, his Minor, Guardian Gramling, ad Litem, Susan M. Plaintiff-Appellant-Petitioner,

v. Clinton L. Billie R. Mallett, Mallett, and Germantown Mutual Insurance Co.,

Defendants, Co., Atlantic Richfield Co., Cyanamid American E.I. DuPont Co., De Nemours and Industries, NL Inc., SCM Chemicals, Inc., Sherwin-Williams Co.,

ConAgra Grocery Products Co.,

Defendants-Respondents.

Supreme Court No. argument 2003AP1528. Oral February July Decided 2005 WI 129 (Also 523.) reported 701 N.W.2d For the plaintiff-appellant-petitioner there were by briefs Peter G. Earle and Law Earle, Peter Offices of Milwaukee; McConnell, and Robert J. Fidelma Fitz- Rice, LLC, patrick Providence, RI, and Motley and oral argument by Peter G. Earle and Robert J. McConnell.

For the defendants-respondents, Atlantic Richfield E.I. du Pont de Company, Co., Nemours & Con-Agra Grocery Products Company, Industries, Inc., NL Ameri- Co., can Cyanamid and Millennium Inorganic Chemi- (f/k/a Inc.) cals, Inc. SCM Chemicals, there a brief Curtis, H. Philip Kelly Porter, Bruce R. & and Arnold York, NY, Peterson, New David G. Michael B. Apfeld (on Godfrey Kahn, behalf Atlantic & Milwaukee King, Company); Jr., R. William H. Steven Richfield Joy LLP, Williams, Rich- C. Fuhr and McGuire Woods Brady Quarles M. & mond, YA, Christine Cowles (on E.I. Pont de Nemours LLP, behalf of du Milwaukee Schirger Co.); Fitzgerald, andMcGrath, P. J. James John Kratz, North, NE, Benson and Omaha, & Paul Mullin (on Friedrich, Milwaukee behalf Michael Best & Grocery Company); Con-Agra Products Susan McGuire Washington, Scott, Ellis, D.C., E. & Donald and Kirland Thompson Heisinger, and Bartlit Elizabeth L. Jennifer Beck Herman Palenchar & Scott, Denver, CO, David G. Apfeld Godfrey Kahn, Peterson, Mil- B. & Michael (on Inc.); Richard W. Industries, of NL waukee behalf Herrington Elyse & Mark, Echtman and Orrick Sutcliffe Apfeld NY, Peterson, Michael B. LLP, York, David G. New (on Godfrey Kahn, of American and & Milwaukee behalf Cortney Co.); Cyanamid Nilan, T. G. and Michael Sipkins Sylvester & Lewis Nilan and Halleland Minneapolis, Clark, J. Johnson, MN, R. Trevor James (on Foley of Lardner, behalf & Milwaukee andWill (f/k/a Inorganic Inc. SCM Chemi- Chemicals Millennium (on Inc.) by argument Kelly Bruce behalf and oral cals, al.). Cyanamid Co., et American Company there was a brief For the Sherwin-Williams Jeffrey Spoerk, by Daily, Bartel, K. David B. Frank J. Brady LLP, Milwau- Hanrahan, Quarles I. and & Daniel Moellenberg, Pohl, Michael Charles H. and Paul kee; Day, Pittsburgh, Flannery PA, and and B. Jones Jennifer Moellenberg, argument by Jr. Charles H. oral by Anne filed Berleman An amicus curiae brief was Consulting Kearney Kearney, Joseph Appellate D. Group, Milwaukee, Civil Trial Counsel on behalf of Wisconsin. by

An amicus curiae brief was filed James A. Buchen, Madison, on behalf of Wisconsin Manufactur- &ers Commerce. by

An amicus curiae brief was filed Gerardo H. Gonzalez, Porter, Richard H. Chris J. Trebatoski and Saggio Gonzalez, Harlan, L.L.P., & Milwaukee, on behalf of African-American of Commerce, Chamber Hispanic Inc. and Chamber of Commerce Wis- consin, Inc. by Lynn

An amicus brief curiae was filed M. Novot- First, Blondis, Novotnak, S.C., nak and Albrecht & Employees Milwaukee, on behalf of Service Interna- tional Council, Union-Wisconsin State Wisconsin Com- Occupational Safety Repairers mission on and Health, of the Breach, Wisconsin Action, Citizen American Teachers, Federation of Local Sixteenth Street Community Health Center. by

An amicus curiae brief was filed Mark S. Olson Oppenheimer Donnelly Minneapolis, LLP, &Wolff Philadelphia, MN; LLP, James M. Beck and Dechert PA; Hugh Young, Jr., Reston, F. VA, on behalf of Product Liability Advisory Council, Inc. BUTLER, B. JR., LOUIS J. Thomas, Steven guardian published his ad litem, seeks review a appeals

court of decision1 that declined to extend the theory risk-contribution announced in Collins v. Eli Lilly (1984), Co., 116 Wis. 2d 342 N.W.2d37 to the defendant-respondent pigment manufacturers, Cyanamid Co., American Atlantic Co., Richfield ConA- gra Grocery Co., Products E.I. DuPont De Nemours and Comp., Industries, NL Inc., SCM Chemicals, Inc., and (collectively "Pigment Sherwin-Williams Co. Manufac- 1 Mallett, Thomas v. 2004 App WI 275 Wis. 2d N.W.2d 791.

turers"). appeals that because court of concluded remedy against for his landlords their a Thomas had negligence failing hazards in his to abate prior no to extend Collins' residences, there was reason theory appeals also con- The court risk-contribution proceed not on his claims that Thomas could cluded liability. enterprise conspiracy and civil argues court reverse 2. Thomas this should (1) although appeals' re- he decision because court of negligence, remedy their from his landlords for ceived does of the Wisconsin Constitution I, Article Section 9 remedy Pigment seeking his for the not foreclose pro- wrong producing separate and for Manufacturers (2) moting pigments; risk-contribution toxic lead Collins' recognized theory white lead carbonate be should (3) presented facts he sufficient material claims; and has liability of his alternative theories to warrant a trial on liability. conspiracy enterprise and civil agree I, Section with Thomas that Article 3. We liability simply wrongdoers from not insulate 9 does altogether recovery from an has been obtained because wrong. wrongdoer altogether different for an different carbonate claims the white lead conclude that We also enough factually case are similar at issue the risk-contribution extension of Collins warrant agree theory. has However, not Thomas we do presented a trial on to warrant material facts sufficient liability enterprise conspiracy claims. his civil part part reverse Therefore, affirm in we appeals' court of decision.2 (1) they argue did not also Pigment Manufacturers (2) that a failure warn; prove cannot duty Thomas

have a were not reached injury. arguments These caused his to warn below, them. therefore we do address

i-H summary ¶ 4. Because this case is before us on judgment, we construe all facts and reasonable infer- light nonmoving party, in the most ences favorable Strozinsky which this case is Thomas.3 See v. Sch. Deer, ¶97, 32, Dist. Brown 2000 WI 19, 237 Wis. 2d 443. N.W.2d ¶ 5. 23,1990. Thomas was born on He June claims poisoning by ingesting paint that he sustained lead painted paint chips, surfaces, from accessible during flakes and dust at two different houses he lived in early 1990's. August living 1991, 6. In while at 2652 North Street, 37th Milwaukee, Wisconsin, 14-month-old Tho- early poisoning, an mas exhibited onset of childhood lead (BPb) fig/dl. with his blood lead levels at 18 Thomas's cognitive cognitive tested, skills were which identified perceptual organization, integra- deficits in visual motor expressive language, tion, academic and fine motor skills coupled hyperactivity with an attention deficit disorder. Eight April later, months at the end of his BPb /xg/dl. increased to 40

¶ 7. Thomas continued to live at 2652 North 37th January Street until 1993. This house was built City Department of Milwaukee Health documented lead- July based violations at this home on 3 We acknowledge that there are competing facts and infer ences that could be drawn from the material facts. Because we construe the facts and all reasonable inferences in Thomas's favor, competing those facts are inferences not relevant our inquiry. dissent, To the Wilcox, extent J., dissenting, on relies out-of-state cases establish what Thomas can or prove, cannot we refer to our standard of review. poisoning phase ¶ next known of lead 8. Thomas's living Street, he at 2654 North 25th while was occurred in 1900. Milwaukee, That house was built Wisconsin. paint this at violations were documented Lead-based August 12, 1993. residence on January by

¶ decreased While Thomas's BPb 9. by July /xg/dl /xg/dl, to 49 1993 to 27 rose Hospital of Wiscon- admitted Children's Thomas was days of chelation treatment. for five sin early September mid-August ¶ 1993 to 10. From /xg/dl. /xg/dl from 13 1993, Thomas's BPb rose 33-40 August lived until November Thomas From 1993 Milwaukee, Street, Wisconsin. at North 37th 4736 steadily declined but was Thereafter, Thomas's BPb range poisoning. for lead still in the BPb According professor Rosen, to Dr. F. John pediatrics of and head of the Division Environmental Hospital at at Montefiore the Children's Sciences cognitive College Medicine, Thomas's Albert Einstein cognitive "signature or constellation of are a deficits poisoning. typical In Thomas's are of lead effects" that permanent. In are case, that these deficits Rosen states the ex- elevated BPb over addition, due to Thomas's require period time, will lifetime Thomas tended physical monitoring-surveillance disorders, for medical developing high future medical he at a risk is now peripheral including kidney complications, disease, neuropathy, hypertension, disease. and cardiovascular high opines are exclu- Thomas's lead levels that Rosen sively pigments ingesting lead based derived from paint.4 below, Pigment judgment motion summary In their summary judgment "on the issues seek did not

Manufacturers injured prove that he was Thomas can of whether Steven subjected 12. Thomas paint samples various from his residences to chemical Robert prior analysis. an electron Dragen, microscopist, analyzed various contained in the layers samples provided layer. elemental for each composition According to that ingestion ingestion or that his of lead source was lead paint. are in dispute precisely These issues But it is case. Co., Lilly Eli they [Collins v. because are in dispute that (1984)] Wis. 2d inapplicable." N.W.2d 37 should be held brief, In appeals' Pigment their court of Manufacturers reiterated analysis motion assumed for purposes "[t]heir a prima present that Thomas could demonstrating case facie sold lead pigment adequate Manufacturers without warnings; it further that he present enough assumed could jury evidence question to create a on whether his claimed injuries by were caused lead." Pigment

The premise argu- Manufacturers of their one Collins for lead pigment claims on against recognizing ments the fact poisoning any that lead could occur from one of number (since of sources ubiquitous). lead is set forth We the material that prove ingested facts Thomas that pigment claims he a lead Manufacturers, by Pigment manufactured the white car- lead bonate.

The complains dissent that Thomas's facts are insufficient injuries establish that his by were caused white lead carbon- Wilcox, pigment. J., ate dissenting, 223-36. Unlike the ¶¶ dissent, do First, we not reach this issue for three reasons. for purposes Pigment summary judgment Manufacturers' motion, they assumed prove ingested that Thomas could he and poisoned by was paint. lead poisoning Thomas's claim lead on premised ingestion his of white lead carbonate pigment. Pigment Manufacturers assumed that Thomas could create jury question regard Second, with to his poisoning. lead the pass trial Third, court did not on this issue. the issue was not fully or argued. briefed Although issue, we do not note, address merits of the we

infra, proving Thomas bears burden of that white lead carbonate caused See injuries. his IVC.2. infra layers paint analysis, detectable contained none of the according Thus, to Dr. chromium. of sulfur or levels toxicologist risk Mushak, and human health Paul analysis conclusively specialist, rules assessment pigments. These or lead chromate lead sulfate out pigments along pigments lead carbonate with white pigments for residences. lead used the essential were pigment principal used, carbonate was White lead chromate could lead and lead however. Because sulfate empirically opines to a reasonable excluded, Mushak be certainty technological degree and of scientific paint carbon- lead made with white lead houses contain pigment.5 ate opinion also is of the that: Mushak may qualitatively potentially exposure arise lead and While element, qualitative and

from of the toxic various sources case, lead quantitative the lead source at issue in this nature of (i) paint, in terms of lead such that it dwarfs other lead sources is (ii) comprises intensity exposure of lead concentration and actively providing exposure lead lead the lead source most settings paint exposure lead poisoning in at issue here: properties present occupied or visited Steven Thomas. paint principal lead childhood lead source of Lead poisoning high-density, exposure urban associated relatively housing with old that contains old areas with high varying states of deterioration. lead content and living paint exposures in deteriorated of urban children Lead central-city housing typical is also much more relevant in areas old water, air, diet, in at here than lead other to the case issue media— etc. paint produces why most intense reason lead the One obvious relatively high content in that poisoning lead lead in children is early paints was not A lead content lead medium. 50% uncommon. alleges noted, 13. As where houses Thomas ingested paint

he were lead built 1900 and 1905. During period, paint use of lead for residences was up paint percent common. Lead contained to 50 lead pigment through widespread and maintained use manufacturing 1940s. The use and of interior lead- paints during 1950s, and, based declined in 1955, industry voluntarily adopted the lead standard American National Standards Institute that limited percent paints lead content to a maximum of one toys, for furniture, intended children's and interior paint However, surfaces. for interiors continued to be available until the 1970s.

¶ 14. As of December 31, 1972, lead containing interior and exterior use household more percent weight than 0.5 lead of total its was banned from 1500.17(a)(6)(i)(B) § interstate commerce. 16 C.F.R. (2005). expanded 1978, In the ban was to residential use paint containing percent more than 0.06 1303.2(2) weight. § (2005); § 16 C.F.R. 16 C.F.R. 1303.4 (2005). paint. In 1980, Wisconsin banned use of lead (2003-04) § Heritage Stat. 254.12 ;6 Wis. A. Antwaun v. (1999). Co., Mut. Ins. 44, 61, 228 Wis. 2d 596 N.W.2d456 prior commencing 1996, 15. On 4, December subject appeal, the action that is the of this Thomas Exchange, settled with Fire Insurance the insurer for Pierringer7 the landlord of 2652 Street, North 37th on a September $62,652.55. basis for On 1999, Thomas underlying against commenced the action his remain- ing Pigment two landlords and their insurers and the injuries Manufacturers for the he received from lead 6All references the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. 7Pierringer (1963). Hoger, v. 21 Wis. 2d 124 N.W.2d106 they alleged poisoning. landlords, his Thomas As to premises respect negligently with maintained the Pigment paint. Manufacturers, Thomas As to injuries they alleged for his on basis were liable liability, among negligence, civil claims, strict of, other liability. enterprise conspiracy, and County 2000, Milwaukee 26, 16. On June McMahon, D. dis- Court, Honorable Patricia Circuit for Co., Farm the insurer State Insurance missed pollu- Street, based on 4736 North 37th landlord at policy.8 subsequently in its Thomas aban- exclusion tion August against 8, that landlord. On his claims doned Mu- his claim with Germantown 2002, Thomas settled landlord 2654 Insurance, the insurer for the tual Pierringer $261,520. Street, on a basis for 25th North Pigment only remaining defendants were the Thus, the Manufacturers: Although Pigment Manufacturers all predecessors-in-interests9 manufactured white their during the existence of at various times

lead carbonate Co., 2d Ins. 228 Wis. v. Northwestern Nat'l See Peace (1999) exclusion clause bars (pollution 596 N.W.2d ingestion of lead bodily stemming from coverage injury paint). complaint, Pigment Manufac- in Thomas's alleged As are follows: predecessors-in-interest

turers deleted.] paragraph [Second is the successor-in-interest Company Richfield

Atlantic Smelting Company and Anaconda Refining International Company. Products Lead predecessor- has no Company De Nemours

E.I. DuPont in-interest. is a successor-in-

Congra Grocery Company Products Company Fuller Paint Company, Fuller the WE interest WP WPF, Inc. prior residences, Thomas's Thomas conceded that he identify specific pigment cannot the that manufacturer produced ingested. the white lead carbonate he The Pigment summary judgment, moved for Manufacturers arguing, prove here, as relevant that could Thomas not proximate causation in fact or cause; Collins not should already remedy be extended as Thomas obtained a from landlords; his Collins not should be extended outside unique diethylstilbestrol (DES); the circumstances of conspiracy enterprise and that Thomas's civil liabil- ity County claims were deficient. The Milwaukee Cir- Timothy Dugan, granted Court, cuit Honorable G. the motion. circuit court concluded that the DES

fact in situation Collins was too different from the paint circumstances of lead First, Thomas's claims. circuit court concluded in unlike situation plaintiff Collins, where the was remediless without theory, remedy against risk-contribution Thomas a had negligent Second, landlords. the circuit noted court during that Collins concerned a nine-month window expectant which an mother consumed DES, whereas here, since the houses Thomas in lived were con- structed in 1900 the could have applied anytime during approaching been what was year span. one hundred time The court concluded the Pigment had defense, Manufacturers no real unlike Third, Collins. the circuit court determined that DES produced poisoning a rare cancer, form of whereas lead by any products could be caused number of lead Industries, NL formerly Inc. was known as the National Lead Company.

SCM Chemicals is the successor-in-interest to The Glidden Company. injury." "signature produce Fourth, not

thus did identical, all DES was court concluded circuit pigments different forms of whereas there were varying by paint amounts manufac- used that were manufacturers, DES circuit Fifth, unlike turers. Pigment not Manufacturers were noted that the court they not did in exclusive control the risks involved paint product or ensure that make the finished product properly maintained homes. then concluded that 19. The circuit court conspiracy could civil claim failed because he

Thomas's underlying prove Further, an the circuit court tort. not present clear evidence that Thomas did determined Pigment agreement Manufacturers of an between the Finally, purpose. accomplish the circuit unlawful an to enterprise liability was also that the court determined industry for there no standard available, as was pigment. lead carbonate white appeals appealed, of

¶ and the court 20. Thomas App 131, ¶ Mallett, 7, 275 v. 2004 WI affirmed. Thomas 2d N.W.2d 791. Wis. agreed appeals of with Thomas

¶ 21. The court many in common with case characteristics that his had writing: Collins, submissions, out his extensive points

As Thomas assuming appeal, their and, for of this purposes the share, many for of same verity, this case and Collins identify reasons, inability to those plaintiff alleged to specific made sold the substance who Thus, and here the injury. in both Collins have caused are, company or one produced sold substances tracing the manufacturer possibility material seller, or sold essentially produced the same as diethylstil- Additionally, both the . by the others... vaginal plaintiffs have alleged to caused bestrol Collins, alleged cancer in and the white lead carbonate neurological to have caused Thomas's disorders were by many long made sold companies before the injury, making specific impossible trace manufac- particular injury-causing turers or prod- sellers uct. ¶

Id., 4. ¶ aside, 22. These however, similarities the court appeals fashioning read Collins as the risk- theory plaintiff contribution where situations any remedy Id., ¶ without whatsoever. 5. Because already existing right against Thomas had an his land- appeals recognizing lords, the court determined that theory Collins' risk-contribution for white lead carbon- unnecessary. ¶ Id., ate was 7. Regarding conspiracy Thomas's claim, civil appeals agreed presented court that he sufficient genuine

evidence to create a issue of material fact as to Pigment whether Manufacturers acted concert to dangers at least minimize the of white lead carbonate. appeals Id., However, the court of determined that did not Thomas establish that the concerted action producing injuries. Id., substantial factor in his Specifically, appeals ¶¶ 9-13. the court of concluded conspiracy had Thomas not shown that the was a substantial factor that contributed to either the use of paint faulty Id., ¶ lead-based or its maintenance. 13. Finally, rejected ¶ appeals the court of enterprise liability theory Thomas's for two reasons: produce any first, Thomas did not evidence that white negligently danger- lead carbonate either was made or ously properly applied if the defective and id., ¶ maintained, 17; second, there was no need to

254 theory enterprise liability as sue on an Thomas to allow injuries against remedy already for his at law had he ¶ id., landlords, ¶ 25. Thomasseeksreview.

II summary us on ¶ noted, this case is before 26. As judgments indepen summary judgment. We review methodology dently, applying circuit as the the same Volkswagen Mayberry Am., Inc., WI 13, v. courts. Spring 226; Green 2d 692 N.W.2d 15, 278 Wis. Kersten, 304, 315, 401 N.W.2d 136 Wis. 2d Farms v. (1987). Summary judgment "if entered must be interrogatories, depositions, pleadings, answers any, together affidavits, if file, on with admissions any genuine material issue as there is no show that judgment moving party to a is entitled fact and that 802.08(2). § All reasonable a matter of law."Wis. Stat. underlying facts must be drawn from the inferences non-moving light to the favorable in the most viewed 338-39, party. Boss, 2d 294 N.W.2d v. 97 Wis. Grams (1980). III problem facing alleges Thomas, 27. A who injured by pigment, he was white lead carbonate is that identify precise producer he is unable to of the white pigment ingested prior lead carbonate he at his resi- generic pigment, dences due to the nature of the producers, pertinent records, number of the lack of passage Collins, of time. See 116 Wis. 2d at 177. simply Some courts have denied extension of market- liabifity under these circumstances and thus de- n share nied lead pigment plaintiffs However, recovery.10 Collins' question presented is whether risk- contribution theory should be extended to white lead carbonate agree claims. We it should. 28. The following backdrop provides the relevant

context for Collins' whether determining risk- contribution should theory be for recognized white lead carbonate It by claims.11 is no means a discus- complete sion of the history white lead carbonate, but rather is assembled pursuant our standard of review that facts are to be construed in the most favorable light Grams, Thomas as the nonmoving party.12 See 97 Wis. 2d at 339. 10 See, e.g., Santiago Co., v. Sherwin Williams 546, 3 F.3d (1st 1993)

550-51 Cir. (declining to extend liability market-share plaintiff because market; could not pigment estabbsh the manu may facturers not have been in during the market the relevant time; plaintiff could not portion establish that damages which represented by the pigment manufacturers); Brenner v.Ameri Co., Cyanamid can (N.Y. 699 N.Y.S.2d 852-53 App. Div. 1999) (declining to extend habihty market-share plain because tiffs could not estabbsh the national market or when the paint appbed; was white lead fungible carbonate was not as it was not chemicaby uniformly identical or paints mixed in and did not produce signature injury; pigment manufacturers not in exclu risk); Skipworth Ass'n, Inc., v. Lead Industries sive control of 690 (Pa. 1996) A.2d 173 (declining to extend market-share liability plaintiff because could not pinpoint during when house's 100-year-period appbed and because uncontroverted evidence in record showed it fungible). was not background This factual is presented to illuminate the magnitude of injury the risk of Pigment created Manu predecessors facturers or their in interests. Creation of the risk of injury was one of the central policies Collins upon by relied Collins, fashioning See theory. Wisconsin's risk-contribution Wis. 2d at 191. previously noted, As again we once recognize that there Poisoning

A. Problem Lead Lead-Based Paints. from According the Center for Disease Control's 29. ("CDC's") Young Preventing Poisoning Children, in Lead 1991) (hereinafter (Oct. Poisoning"), "Preventing Lead well-recognized given rapidly devel- children's it is particularly "[c]hildren systems, oping are sus- nervous ceptible effects." Id. Because the human to lead's toxic body calcium, lead and cannot differentiate between a few remained in the bloodstream for after lead has bones, into where it can collect weeks, it is then absorbed In A Parent's EPA, a lifetime. Lead Your Home: for (June 1998). Guide, 4 Once lead enters Reference system, be in more lead is absorbed than would child's Poisoning, Preventing 11. adults. Lead exposed "are more to lead than 30. Children groups normal hand-to-mouth ac- because their older may many nonfood items into their introduce tivities "[p]ica, gastrointestinal Id. The CDC noted that tract." ingestion repeated substances, has been of nonfood implicated poisoning; however, a child in cases of lead poisoned." paint chips eat to become does not have to ingest Id., dust It is more common for children 18. paint that either contaminated with lead from and soil aged has otherwise or chalked as it been has flaked during Id., maintenance or renovation. disturbed home ingested dust, via house "This lead-contaminated 18. activity, recog- repetitive is now hand-to-mouth normal major body to the total burden nized as a contributor "[bjecause Id., of the critical Thus, lead children." living exposure pathway, children an role of dust as be drawn with and inferences that could competing are facts regarding the Pigment culpability Manufacturers' respect to lead carbonate. promotion manufacture and white housing undergoing sub-standard homes reno- particular poisoning." Id., vation are at risk consequences poisoning ¶ 31. The of child lead According are well documented. to the CDC: (blood Very exposure severe lead in children /xg/dL) coma, convulsions, >80 can levels cause and even death. Lower levels cause adverse effects on the central system, kidney, nervous and hematopoietic system. 10/xg/dL, Blood lead levels as low as which do not cause symptoms, distinctive are associated with decreased intelligence and impaired neurobehavioral develop- ments. weight

Id., 9. The CDC also states that "the clearly supports hypothesis evidence that decre- cognition in ments children's are evident at blood lead g/dL." levels well below 25 Id. Although originate many

¶ 32. lead can from dif- materials, ferent paint such food, soil, water, air, or lead primary culprit.

is the The CDC concluded that "[l]ead-based paint high- is the most common source of poisoning." Id., dose lead 65. "Numerous studies have poisoning established that the risk of lead is related to presence paint of lead-based and to the condition of paint." Department Id., such 18. As the United States Toxicologi- Health and Human Services determined in 1999): (July Lead, cal Profile for [T]he most common source exposure of lead for chil- dren is lead-based paint that has deteriorated into paint chips and lead dusts and that the most common exposure sources of lead for adults are occupational. Similarly, Drug in 1990, the Food and Administration (2-year-olds) estimated that "toddlers received 16% of exposure their total lead from food ... soil, from 1% 7% water, from and 75% from dust." Id. at 415. poisoning disproportionately ¶ Lead affects 33. inner-city populations. The National lower-income, (NHANES Survey Examination Health and Nutrition III) (conducted 1994) September from October 1991 to among aged children 1-5 indicated that BPb levels among likely years more to be elevated those who "were living large poor, non-Hispanic, black, in metro- were politan (with housing potential living in areas, or older paint)." exposure from Id. differ- to lead lead-based housing exposures to lead- conditions and ences containing "appear dust to contribute to house [BPb] Id., in urban children's levels." racial differences 417. Approximately 3 million tons of lead remain 34. housing occupied private 57 million an estimated Preventing Poisoning, Lead

units built before 1980. and dete- units, those 3.8 million contain children Of Although paint typically paint. Id. is riorated walls, com- kitchen and bathroom it is also found on monly windows, and wood trim doors, found on pre-1950s Id., homes. poisoning mentioned, the risk of lead is 35. As paint underlying itself, surface

increased when the painted, Id. Lead has deteriorated. on which concerning particularly "because it is on windows is closing repeated opening abraded into dust intact, if it However, Id. even is of these windows." greater paint poisoning if the lead is risk of lead to children. Id. located on surfaces accessible Pigment. B. Paint and White Lead Carbonate Lead major comprised components: of two 36. Paint is hiding power protects provides pigment, and which pigment surface, vehicle, and the which allows spread part be and adhered to surface. In the first of century, many types the 20th there were different pigment, Generally, paint lead and non-lead based.13 pigments manufacturers decided what and amounts of pigments formulating paints. Many to use their when Pigment produced ready-mixed Manufacturers also paint. lead-based predominant pigment

¶ 37. The lead that was integrated manufactured and into was white lead carbonate. White lead carbonate was the chemical first produced commercially country. pigment in this That initially was favored because when used alone it was the easy apply. most durable It was also believed to Pigment All be mildewcide.14 Manufacturers, or predecessors-in-interests, produced pigment their varying at times since the houses which Thomas resided were constructed 1900 and 1905. comprised

¶ 38. White lead carbonate could be any compounds. of three different chemical Basic compositions, lead carbonate had two chemical 4PbC032Pb(0H)2Pb0 2PbC03Pb(0H)2. Free nor- composition mal lead carbonate's chemical was PbC03. overwhelming Basic lead carbonate form of pigment paint. lead used having In addition to different chemical compositions, physical properties of white lead carbonate varied. These variances included different

13Examples of other lead pigments include basic lead sulfate, lead, yellow, lead, red chromates, chrome blue lead oxides, silicates, titanates, leaded zinc litharge molybdate orange. Examples pigments non-lead include lithopone, dioxide, latex, titanium alkyd water-based and resin. apparently Painters also believed that there was no substitute for white lead carbonate. hiding bulking absorption, gravity,15

specific values, oil Pigment shape.16 particle power, Manufac- and and size grades distinguished of lead car- between turers also promoted apparently each for different bonate purposes. expert, toxicologist Mushak, Thomas's toxicological lead car-

opines effects of white that the formulary notwithstanding the the same bonate remain pigments. lead carbonate the white between differences relationship little between that there is Mushak states "bioavailability" diversity lead, and the chemical absorption uptake into or lead to the lead which refers "[t]he explains body. reasons that Mushak the human equate automatically why differences one cannot bioavailability composition with differences chemical biological, bioavailability operates via a set is because processes physico-chemical will biochemical pigments starting indis- of lead in forms often render tinguishable obser- Based on terms."17 toxicokinetic (which "the Mushak characterizes vational evidence showing toxicological huge body that lead literature (LIA) Industry publi Lead Association's According to the for lead gravity Industry, specific Lead In Modern cation according 6.6, is 6.14. Also for basic lead carbonate carbonate is is weight of lead carbonate the molecular publication, to that carbonate 267.22, weight 2PbC03Pb(0H)2 of basic lead while the According to 1774.55. and of 4PbC032Pb(0H)2Pb0 is 775.67 lead carbonate only 4PbC03Pb(0H)2Pb0 basic publication, paint pigment. used for size was usu particle lead carbonate Generally, normal particles. lead carbonate ally larger than the basic pro Mushak, describes "toxicokinetics" According to lead within lead, of absorbed distribution uptake cesses of lead, subsequent fraction of that of some body, retention that lead. excretion of

paint poisoning pervasive uniformly and rather in- severity exposures") laboratory tense as to the of evidence, Mushak that no concludes there is basis to formulary changes among conclude that white lead bioavailability carbonates affect the of the lead. C. Knowledge the Lead Toxicity Pigments of of 1848, In Dana, Samuel L. an American complete description doctor, translated the first clinical poisoning by 1,000 of lead based on over cases, written Tanquerel des Planches of France in 1839. Planches' preeminent leading work obtained status and was a authority dangers through on the of lead at least the recognized dangers repeated 1920s. That treatise the of quantities inhalation of small of lead. By century,

¶ 42. the turn of the 20th it was well-recognized controlling signifi- lead dust could cantly poisoning, although recognition reduce lead the initially settings. European limited to industrial acknowledged countries had the harm dust, of lead Germany, England, already and France were regulating protect lead industries their workers from year, lead dust and fumes. That same in the United meeting Superintendents States at a of the Company, National Lead Dr. Hamilton, M.D., Alice hygiene, applauded founder of industrial these coun- protections tries' efforts and detailed the advanced European enjoyed.18 dwindling workers Given num- poisoning European bers of lead in those countries that passed regulatory legislation, Hamilton called on practices American industries to reform their to mimic 18Dr. specialized safety Hamilton in involving issues lead industries and improvement believed that much needed to be made. argued, European counterparts. all, Above she

their step abolish, or at least reduce to the was to first greatest possible, dust.

extent assessment, with Hamilton's Na- 43. Consistent reported 1912 that Lead its stockholders tional products "[i]n Lead, of the various manufacture danger to the health work- there are sources two arising employed; from the viz., therein the fumes men smelting melting lead, and the dust of metallic arising making process white and lead years Chairman of later, oxides." Seven Company's Manufacturing Committee National Lead prime object" safely handling "[t]he described keep lead other dust was "to lead dust white of the of the nose and mouth worker." out manufacturing, Hamilton than also Other painters. 1913, In at the International monitored trade suggested Congress Painters, Hamilton that of Master paints painters for interior work.19 not use white lead suggestion generally followed, and, in was not Her painting most was "the noto- 1919, she lamented that large "painters up make rious of the lead trades" poisoning." majority Aside from cases of lead painters' paint present that on the hands could smeared paint mouth, Hamilton noted carried to the be rubbing paint primarily or new with dust, old caused recognized sandpaper, universally as the most dan- "is part painters' gerous trade." Hamilton's concerns of the in 1910, In a bill introduced not unfounded. were Representatives, Congress, House of would in the any required "[t]hat . into state .. the introduction have for 1909, paint the use of lead interior In France banned 1909, July Belgium in painting exterior after Also lead, dry white Austria the sale use prohibited in houses. of white lead for interior use the use prohibited any paint containing white lead or mixed white lead which is not labeled with a skull and crossbones and the hereby prohibited." words 'Poison; white lead1is That Although protective regulatory legis- bill was defeated. likely yielded "[t]he lation would have results, beneficial prohibition paint total of lead in use interior work anything improve would do more than else to condi- painting tions in the trade," Hamilton stated. appreciation dangers 45. The posed emerg- inside the home to the residents was also ing during July monthly this time. In 1904, in its publication publicized S.W.P., Sherwin-Williams paint. hazards of white lead Under the bold headline, "DANGERS OF WHITE LEAD," re- Sherwin-Williams ported appointed that a committee France had been investigate the use of white lead and other lead painting mixtures for houses. Sherwin-Williams noted experts that one of the committee's indicated that lead paints "poisonous large degree, were in a both for the painted workmen and for the inhabitants of a house with lead colors." Sherwin-Williams also noted that the expert opinion ofwas "that the absolute disuse of imperative necessity." white lead has become an Never- years theless, began six later, 1910, Sherwin-Williams manufacturing acquired white lead carbonate after it processing plant. white lead during Moreover, the First War, World Sherwin-Williams advised the War Department government specifications per- that for 50 paint cent white lead carbonate for war helmets should replaced be lithopone pigment. with its lead-free advantage Sherwin-Williams stated that the of switch- ing lithopone pigment danger to its was that the from poisoning entirely lead was eliminated.

¶ 46. In 1914, the director of the scientific section of the Paint Manufacturers' Association of the United

264 Henry Gardner, A. hazards States, also warned detailing paint posed After efforts lead residents. prevent lead from dust made to workers the hazards why similar care was factories, in Gardner asked guard against public being in lead dust build- used to many ings. tons of white leaded Gardner observed that applied paint had to the inside of schools been resulting hospitals. lead And with white carbonate dust disintegration gradual paint, of this Gardner from the just workers, case as was the with industrial noted atmosphere presence in of such dust the room's dangerous. very Organi- 1919, International In Labour Washington meeting in to enlist U.S. held a

zation Following regulating support this meet- in white lead. ing under the in Geneva was a conference League auspices Nations, attended which was delegates That conference from 40 countries.20 400 paint a recommendation that be resulted in Industry press altogether for interior uses.21 banned recommenda- United States viewed the reviews industry plot by labor as a interests. tion sinister happily reported press there was little reviews danger any the United States. bans on In National Paint Varnish (NPVLA) confidentially Lacquer warned its Association Lead, included National Sherwin Wil- members —which pig- liams, Fuller —that white lead Glidden, and W.P deleted.] [Footnote conference, enacted bans or many After countries including Bel painting, on white lead for interior restrictions (which altogether for interior banned white lead gium then Britain, Greece, Czechoslovakia, Hungary, use), Tunisia, Great Sweden, Poland, Yugoslavia, and Cuba. Belgium, Spain, letter,

merits toxic. were This marked "CONFIDEN- Publication," TIAL Not stated: concerning [T]he vital factor toxic is materials to intel- safeguard ligently People feel public. may safer in buying danger they materials whose rather than know materials unknown to them. following may

The pigments be toxic if they considered way find their into the stomach. ... Compounds.

Lead lead, lead, litharge, White red (chrome yellow, green), chromates or chrome other lead pigments.

The proceeds letter to explain that the NPVLA ex- pected that manufacturers would apply "every precau- measure in tionary manufacturing, and in selling use where toxic are likely materials to or do enter a prod- uct." letter noted that toys, "children's equipment, etc. furniture, are only not the consideration." It also contained notification of following legal duties to warn of a dangerous product:

1. A puts manufacturer who out a dangerous article or substance without accompanying it warning with a dangerous properties its is ordinarily liable for any damage which results from such failure to warn. 9. The manufacturer must ... know the qualities of his product cannot escape liability ground on the he did not dangerous. know it to be general 10. The rule that is manufacturer not liable not in privity those of contract with him does not apply product imminently when his inherently dangerous. fought

¶ Nevertheless, the NPVLA to weaken 49. required paint warning proposals contain to states' objected particularly to American Medi- labels and required proposal have lead that would cal Association's "poisonous." paint to he labeled as By Safety ¶ deter- 1942, the Council 50. National preventing of "the most obvious method mined that poisoning for lead and its com- lead is to substitute early By pounds that are non-toxic." other materials paint. lead 1920s, were safe alternatives to white there pro- During time, and Sherwin-Williams Glidden pioneered paints, Lead zinc-based while National duced pigments. pigments development These of titanium particularly being manufactured and marketed were toxicity.22 appreciation of lead's because of during above, I, World War 51. As noted Department advised the War Sherwin-Williams percent for helmets with 50 lead switch its order paint lead-free litho- carbonate to Sherwin-Williams' prospect pone of lead in order to eliminate the paints by promoted poisoning. its lead-free Glidden Europe claiming: Paints are because "Lead banned [Titan-O-Zinc] danger Poisoning. Lead of of only non-poisonous. consequently, Not is it lead-free, every painting other exterior ideal for residence especially of the farmer is surface, but the attention possibility product all as it eliminates called to this characteristically poisoning known as of livestock 'cribbers.'" Although zinc- various manufacturers attacking paints published paints ads

based poisonous, Lead silenced those advertise- National pigment reaching agreement zinc an with ments cheaper produce. They apparently were also refrain manufacturers to from attack ads sometime By between 1905 and Lead National was pig- production one of the leaders in the of titanium though ments. After the Second even War, World Na- producing paints, tional Lead was lead-free it advised salespeople push paints every its opportunity." the sale of "at leaded Knowledge Poisoning

D. Childhood Lead emerging knowledge ¶ 53. Parallel with the dangers by lead in caused industrial and residential settings grew poison- awareness childhood lead ing. During poisoning the mid-1800s, child lead was already mouthing lead-painted toys. linked to Australia identifying examining at was the forefront of poisoning. Following childhood lead the first well- study poisoning documented of childhood lead from paint 1908, Australian went researchers so far as to prohibiting paint call of use lead within the They reach of children. found: Two painted conditions of surfaces would be than more (a) usually viz., liable poisoning, to induce freshly (b) painted sticky surfaces; or at least painted surfaces air, which either exposed have been to the sun and paint whose has dry its oil and a easily lost become powder, or though detachable which exposed not have gloss, lost some their oil and and which when rubbed yield powdery a substance to the possibly touch and it distribute to the dust of rooms. During

¶ year, 54. that same Australian research- paint powder also ers connected stuck children's fingers, which poisoning. Those then were bit or sucked, with lead also

researchers recommended re- fraining using paint from lead on surfaces accessible to children. particular early 1900s, sus- In the children's recognition. gaining

ceptibility poisoning also to lead dangers exposure to fetuses Britain, the lead In Great from were later removed identified, were working and women States, in lead In the United in the industries. potent is a most 1908, Dr. noted that "lead Hamilton very producer a and it is rare that woman abortion, healthy 1912, And, a child at term." lead worker bears acknowledged researchers in young people United States poisoning more to lead were vulnerable report, Lead than adults. In its 1912 annual National employ factories, did not women its noted that it jobs, except messengers or similar other as occasional boys. Hopkins physician from John In a professor Hopkins

Hospital at the John who was also a Blackfan, D. chronicled School, Dr. Kenneth Medical hoy five-year-old died from Baltimore who case of a poisoning his from lead bitten from white railing. poisoning in that lead crib's Blackfan concluded special "appears effect on children meninges to have system and that the central nervous unsuspected may infrequently cause of so- be meningitis." Blackfan wrote an- In called serious poisoning from cases other article that detailed noting After that children were home in Baltimore. poisoning, particularly Blackfan fore- to lead vulnerable key poisoning lead for children that a of warned source objects, specifically gnawing lead-painted white on was paint on cribs. growing Despite of child lead awareness poisoning, susceptibility

poisoning to lead children's yet example, knowledge For was not mainstream. of the Census the U.S. Bureau between 1911 poisoning only eight reported child lead fatalities. fisted prior ¶ 58. Consistent with the little decade's of- poison- ficial data and literature on the of extent lead journal ing, early some medical articles in the 1920s poisoning child However, described as rare. in M.D., Dr. John C. Ruddock, wrote that child lead poisoning "may easily be overlooked, because the aver- age physician has never had his attention called to the picture usually very fact, and clinical also because the is poisoning different from that in similar in adults." The following year, emphasized another doctor that most poisoning general cases of lead in were missed or misdiagnosed. By physician otherwise 1926, another "[l]ead poisoning relatively submitted that fre- quent occurrence in children." As one historian con- growing during cluded, the theme this time was the poisoning, more doctors knew to look for lead the more they found it. During

¶ 59. late 1920s, mid to the view that susceptible poisoning children were more to lead appeared almost universal. A number articles journals par- medical that linked lead-based poisoning. ticular to childhood lead In addition to the previously dangers painted railings identified crib (which, by journals 1926, was identified in 15 medical risk), porch railings, the United windowsills, States as a any painted children's furniture, other articles around the home that were within the child's reach posing were identified as risks children. Aside from penchant placing children's chew, items in their mouths to recognized absorp- in 1926 researchers also particu- dust, tion white lead carbonate dust in rapidly respiratory lar, could be absorbed children's system. Merely sleeping in a room, lead-laden with little poisoning. ventilation, was discovered to cause lead As warned, Dr. Ruddock "A child lives in a lead world." rising mounting Through evidence, sentiment dangers underscoring non-industrial that was poisoning cases "cannot be for lead in child lead sources strongly emphasized." too public

¶ historians, health Gerald E. Thomas's 60. (hereinaf- Rosner, Ph.D. Markowitz, Ph.D., and David Rosner"), opine by that the mid- ter "Markowitz convergent "strong ample evidence was 1920s there dangers general, toxicity paint" and the of lead particular. posed and Ros- Markowitz to children increasing given evidence, "the ner conclude pigments ceased lead should have manufacturers of producing very use, for interior before it, at least the mid-1920s." journals

¶ increased medical As the number of poisoning, reporting so did the child lead too their on poisoning Between lead official data on child fatalities. poisoning lead the number child 1930, 1921 and by the Bureau the Census documented fatalities nearly past quadrupled decade, to 31. from the poisoning childhood lead The literature on physi- grow during In the 1930's. continued ingesting paint poisoning from cians asserted that beyond toys "proven woodwork, cribs, was from early reiterated sentiments doubt." Some researchers occurring poisoning chronic and was that child lead among frequently infants had and children than more frequently mostly physicians supposed, because been recognize condition. The conclusions did not culprit children were main and that was the toxicity regularly especially re- vulnerable its were peated. during the 1930s it was discovered 63. While neurological permanent disorders,

that lead caused Randolph Byers, Lord, Ph.D. and Elizabeth M.D., (hereinafter "Byers Lord"), poison- that found lead ing long-term development had effects on intellectual retarding by development.23 mental below, As seen findings quite their industry. would cause a stir the lead magazine Byers

Time summarized and Lord's findings headline, under the "Paint Eaters," writing: "All but one child... were school failures. Only I.Q.s, five had normal and four of the five were so they easily." Building erratic that could not learn on findings, during these research the 1970s demonstrated give symp- lead that levels that did not to rise clinical might adversely psychological toms nonetheless affect development. and intellectual Pigment E. The and the Lead Manufacturers (LIA)24 Industries Association rising regarding 1928, In alarms among hazards of lead and the need for coordination producers lead to manufacturers led the formation (LIA). Although of the Lead Industries Association comprised many of lead industries, the white lead industry important was the most of the lead manufac- turing industries in the LIA. Virtually inception,

¶ 65. from its the LIA was responding publicity what termed "undesirable regarding poisoning." Secretary, LIA's In "of stated that late we have much received undeserved publicity newspapers damaging products." By to lead Between 1940 and the number of children screened poisoning fourfold, for lead increased as did of the number cases diagnosed poisoning. 24The LIA was named party However, as a defendant. LIA subsequently bankruptcy filed for and was later dismissed as a party defendant. large acknowledged amount of that "the

1939, the LIA daily by space given columnists in the to lead medical by organiza- by profession, press medical consumer subjects has increased tions and authors scientific give have had to amount of attention we subject toxicology year, [the] That same of lead in 1939." large-scale Lead Promotion the LIA initiated its "White complained "[l]ead By Campaign." LIA 1941, the large poisoning amount matters continue absorb response nega- to this the Association ...." In time of Secretary program publicity, proposed "a tive vigorously investigating alleged arises,

each case that necessary, encouraging taking any steps if remedial poisoning, publishing in lead and medical research industry." showing of lead in the role literature useful Through 1940s, the the LIA determined that the end of problem hygiene" of could be addressed "the lead Addressing reassuring public lead was safe. the that problem estimation, "one of in the LIA's own was, this important of the Lead Industries the most activities appalling amount of as there remains an Association against products prejudice on of lead based the use toxicity." of lead fancied notions According Rosner, and the to Markowitz multi-pronged: sought campaign it rebut was LIA's toxicity; any findings it news of lead's or other research sponsored that lead demonstrate its own research to public of lead's harmless; to warn the was and refused overwhelming dangers, of evidence even in the face many findings children from research and clinical dying. while, All Markowitz Rosner sub- were the promoted lead LIA the use of mit, the regulations against successfully laws and lobbied Although Pigment Manufactur- the its use. would curb hiding actively through informa- LIA, ers, the were regarding dangers particu- poisoning, tion larly the of lead they very children, were well of aware they accumulating information, and were it. key critiqu- ¶ 67. One of the voices for LIA in ing growing toxicity scientific on literature of Joseph lead was that Dr. LIA, Aub. Prior to the industry organized was under the American Insti- tute of Lead Manufacturers. The Institute funded medi- toxicity cal research on of lead at Harvard Univer- sity under the direction Aub. LIA The continued that help findings research from 1929-45 to rebut poisoning. research Aub's focused on lead metabolism occupational exposures, in adults from not on child lead poisoning. during sponsored However, an LIA poisoning phy- confidential conference on lead for the employed by companies (including sicians its member Lead, Sherwin-Williams, National Glidden, Anaconda/IS&R), acknowledged vulnerability Aub respect poisoning.25 of children with to lead importance ¶ 68. LIA attached inestimable given Aub's research: "Without the he counsel has prob- office and active assistance in some our lead disadvantage." lems, we would indeed at a be serious upon treating physicians' Aub called to rebut reports poisoning by providing of lead deaths alterna- exculpatory explanations. tive downplaying

¶ 69. In contrast to Aub's lead paint's prominent industry-sponsored hazards, another conference, At this confidential there was on discussion to how defeat compensation by clearing workers' claims blood lead poisoning suggestions evidence. Some included injecting the worker with "bring up" liver order to him even though any "it good." doesn't do him suggestion Another was removing teeth, the workers' so that would there be lead line no anyone to see. consistently Kehoe, Dr. warned researcher, Robert although paint posed children, to such hazards lead warnings largely private corre- confined to remained by Ethyl spondences. was financed Kehoe's research gaso- tetraethyl produced Corporation, lead for which line. By agreed the broader 1930s, Kehoe with community toys, furniture, well as cribs, that

medical any painted in children's and surfaces woodwork other poisoning. possible In of child lead reach were sources highlighted disparate impact poi- lead 1933, Kehoe soning on and stressed that had children adults eliminating efforts be devoted "strenuous must again [children's] he ex- environment." In from "[t]he pressed of lead- his belief that occurrence paints containing on and the use of lead commodities objects, toys, the reach and other within furniture, ignore."26 too common to children is much small publication Byers In after Lord's develop- long-term intellectual on effects of lead on acknowledging if Kehoe, that the LIA wrote to ment, indeed most correct, were "we have their conclusions writing: responded, public health hazard." Kehoe serious answer, for by my I you disappointed will be I fear that arrived at agree the conclusions disposed am with authors, evidence, if not that their believe "investigation," the LIA conducted its own response, In 30, 1930, compa to lead whereby it sent letter on November being paint used to any "ascertain if nies to responses cribs, beds or furniture." Twelve children's decorate only letter asked about whether received. Because the were interpreted lead," apparently which used companies "white they lead, used pure companies five said to mean white However, paints mixed enamel or these were only lacquer. large amounts of white lead carbonate. could contain entirely adequate, worthy very of serious consider- Perhaps my prejudices ation. experience own me in of acceptance findings, favor the of their for I have seen of mental cases serious retardation in children that poisoning encephalo- have recovered from lead of the among pathic type, my records is one case of permanent feeble which I mindedness attribute to a episode well defined of lead in an encephalopathy infant. quarrel

You chewing with statement about say paint and that the manufacturers don't it use on toys. may cribs and That My well be true. experience accept However, leads me to it as such. the householder repaints articles, these and often lead-containing with paints. point Please note that the article makes fact paint cribs, that the children chewed "off window furniture," sills and also refers statement of parents they had repainted I'm cribs. afraid will you good try do no significance to combat the of the history chewing articles in relation to problem lead poisoning significant in children. The most feature history exposure of the in overwhelming an propor- tion of the poisoning just cases of lead in children is that fact. "Pica" cases, is at the bottom of most of these unfortunately environment of small children is sufficiently not free of safety. you lead for their Have seen the data on poisoning Queen- children sland[, Australia]? These largely cases were due to chewing railings off the porches on played. which children 72. With from Aub, reassurances the LIA dis- agreed with assessment, Kehoe's stating:

[I]t conclusively proven and, has been the case made out Byers Drs. and Lord there is a connection between retarded development mental itself, proven. far years lead is from poisoning later and me, felt children . .. Dr. Aub told he who have As caused them to chew "pica" disease known as which articles, subnormal to start with! on inedible were Despite from the LIA that ¶ 73. assurances paint, toys longer lead the U.S. no contained children's "[i]t December 1945 that Bureau warned in Children's as to to word of the salesman is not safe take the may paint] [a or not because he whether harmless According Rosner, LIA to and "The Markowitz know." warning it labels, of nor did did not advocate the use encourage of white lead. of interior use the elimination Only have to diminish or measures could served these contrary,. problem. . . LIA and To the eliminate the promote paint lead for inte- its members continued actually and still Glidden rior use." Sherwin-Williams promoted toys paint at time. for use on lead LIA launched in 74. Also December Program" Safety Hygiene undercut "The toxicity regarding growing medical literature faulty. Recognizing that the lead that it characterized losing industry be a vast amount business lead "must year has un- fact that lead such each because many pleasant Ameri- minds of so in the connections complaining persisted how the about LIA cans," the unfairly by industry plagued "continues to be lead upon products of their because made attacks toxicity" "meet attacks on lead indicated would correcting published qualities erro- due to toxic its statements." neous findings Byers In to counter the poisoning organized a conference on lead

Lord, the LIA At the confer- Association. the American Medical with rejected strongly that lead was claims ence, the LIA Secretary dangerous. ac- a doctor's LIA rebuked count how child's crib was traced to three cases of poisoning. According Secretary, to the interior longer lead, white no contained and thus he importance poisoning denied the of lead in children due paint. disagreed ¶ 76. Kehoe still LIA with the Secretary's stating: assessment, poisoning

More lead children has occurred than we would like to think actually about. The number that are reported medical literature have very little relation- ship actually to the number that occur. Lead poisoning in is a a child serious disease.

¶ Moreover, 77. Markowitz and Rosner also note Pigment that the LIA and the Manufacturers continued promote paints to and sell white lead for interior use well after mid the 1940s. In in addition, their estima- "by abundantly tion, this date it was clear that hun- dying poisoning dreds children were of lead each year." report

¶ 78. Kehoe later reviewed a the written Secretary benign qualities LIA that lead, iterated the against taking and Kehoe warned the LIA this extreme position. particular, objected In Kehoe the to LIA Secretary's importance poisoning denial of the of lead paint, stressing children to due that the connection poisoning between childhood lead and lead was years sound. A later, few in 1953, Kehoe recommended largely eliminating paints use of lead for interiors to protect children:

[The] most effective solution of problem this [is] ... eliminate the of paints very use ... of more than minor lead content for all inside decoration in the household the environment of young children. If this is not voluntarily by done industry wise concerned will be accom- properly, its own business handle difficulties and ineffectually and with irrelevant plished legislation. through disadvantages accept proposal. did not his The LIA By and Rosner 1940's, Markowitz the late public dangers warning of lead submit that question LIA. In after for the still out of the toxicity comparisons of lead and zinc between being published, products LIA formalized its were Industry agreement Zinc the American informal with advertising Industry prevented from the Zinc paints. toxicity of lead-based problem LIA In characterized major poisoning "a 'headache' and a

of childhood lead publicity." LIA wrote: much adverse source of us, enough common poisoning is With childhood "headache," being in my major perhaps constitute cases, many prognosis in such very poor due to the part only remedy real lies also to the fact category It educating relatively parents. ineducable us, by Kehoe estimated mainly problem a slum with no annually, [] we have figures four to run into housing or substan- on either substandard monopoly in the USA.. .. dard mentalities Shortly ¶ American Standards thereafter, the 81. represen- voluntary group comprised of Association, a public variety health and medical, of from a tatives NPVLA), (including industry groups devel- LIA and the This oped to children. to minimize hazards a standard provided paint interiors or used for new standard might any on should contain children chew surface that weight. percent Prior to that one lead no more than "[ejvery effort... it made time, the LIA indicated regulatory field of ... to the measures the confine labels, warning which, as applied paints, are obvi- ously less detrimental to our interests than would be any legislation prohibitory nature." 82. later, Two LIA years finally the recognized what the literature had for supported nearly half a century: the paint major source of childhood lead The LIA also poisoning. the recognized of lead problems causing lead paint poisoning was going However, to be a one. lasting the LIA displac- still was ing time, blame. This LIA suggested the blame fell shoulders, on children's parents' as it stated: major

As the flaking source trouble is the of lead dwellings in the ancient cities, slum of our older the problem poisoning of lead in children will be with long slums, us as there are and because of the high rate, frequency death of permanent brain survivors, damage in intelligence and the level of parents, slum it seems destined to remain as important any and as difficult as with which we have deal. In 83. a letter to Kehoe towards the end of

the LIA similarly acknowledged problem yet cast blame elsewhere, writing: fear

Without contravention, successful can say: I That overwhelming major source of lead poisoning in children is from structural paints surfaces, chewed painted picked from up or off flakes, in the form or adhering to bits of plaster ingested. and subsequently some, That of secondary but importance is lead paint mistakenly applied by ignorant parents to cribs, play pens juvenile and other furniture and subsequently off ingested. chewed may be from any there poisoning 3. That toys quite minor concern lead-painted is of sources. with the two above comparison essentially a is poisoning That childhood lead 4. dwellings relatively igno- and problem of slum parents. rant almost to the older wholly confined

5. That is country of and of the eastern third cities Milwaukee, Chi- nonexistent west of practically cago, St. Louis and Orleans. New child, That, many cases, the slum all too 6. cured, to and returns diagnosed, hospitalized of and another routine the same environment ingestion. prima- problem of the lies importance 7. That cases, in the but rily, not in number damage permanent brain likelihood of really difficulty instituting effective great measures. preventive (a) That, get rid we can find means until (b) relatively inedu- slums, educate the our continue parent, problem will

cable plague us. those that, if know answer to finally you And than I think

two, you genius even more of are you. "carrying just this letter is another instance

Perhaps Newcastle," misunderstanding but the coals to problem widespread, is so of this fundamentals it, that I find expect least frequently where one would in so off in this fashion once myself impelled to sound often. less than

Although unassuming, industry at least acknowledged what had been finally researchers confirming decades. The 84. LIA still the problem saw as a "head-

¶ ache" public issue, and a relations not a health public In its disaster. in annual the LIA report, wrote: toxicity poses of lead a problem that other nonfer- generally rous industries not to do have face. Lead it, or poisoning, the threat of in hurts our business ways. several it different While is difficult to count exactly cents, in is taking money dollars and it of out your day. pockets every

In the it place, first means of of thousands items publicity every year. particularly unfavorable This true since most of poisoning today cases in are children, and anything sad that happens a child is meat for newspaper gobbled up by editors and is public. essentially It makes no difference that it is slums, problem public problem. welfare Just same publicity hits us where it hurts.

Secondly, it that subjected means we are often unnecessarily regulations, onerous either in the use our product or in labeling. may its This mean an either expense labeling added in equipment or control your your or plants. may customers' It even mean that your product your won't be used at all potential because customer doesn't the problems want that the use of lead may involve. 85. By LIA now characterized

problems childhood lead as poisoning "harrowing." The LIA recognized that childhood lead poisoning limited urban slums but also "young reached children in small towns and rural Further, areas." LIA recognized that childhood lead could not poisoning be attributed to defective children, as earlier had "young will often taste children... believed, because gets anything into their hands."

F Promotion approximately percent sales, all With pigment mar- Lead the white lead National dominated promo- Through its ket advertisements per- promoted tions, ception and reinforced the National Lead good, safe, no as white was as showing paint. Despite numerous articles that leaded potent poison by 1920s, 1923, in one of lead a paint helps declared that lead National Lead's ads guard resting place germs. preventing a for health warnings Although medical com- from the there were dangers paints lead in of white munities about the specifically hospitals, Lead also National schools targeted into the institutions from the 1920s those repeatedly that its lead enemy Lead claimed 1930s. National deadly paint public protected it health, as was germs. 1931, In Lead and other National of tuberculosis "speed patients' paint helped lead its contended recovery." major

¶ 1925, 1910 and three new Between 87. pigment the market: Sherwin- manufacturers entered mar- Anaconda, and Lead's Williams, Glidden. National during percent and 70 ket fell to between 60 share lead not manufacture white time. did Sherwin-Williams newly began operating con- 1910, it until when Chicago. manufacturing plant white lead structed recognized dangers Although Sherwin-Williams paint publication, War and cautioned the lead Department in a 1904 dangers poisoning from

about using paint in lead- advocated toys. paint on children's based During mid-1920s, Sherwin-Williams using paint

continued recommend white-lead based (paint upwards percent which contained of 75 white lead) including on surfaces, walls, woodwork, interior ceilings. doors, and 1940s, paints From 1936 until promoted Sherwin-Williams of its use lead based toys. on Although specifically

¶ 89. Sherwin-Williams was warned 1937 about the hazards of white lead to children, Sherwin-Williams sold white lead interior use as late as the 1950s. When Sherwin- producing Williams ceased white lead carbonate in 1947, it continued sell white lead carbonate and paints by buying product leaded from National Lead. predecessor,

¶ 90. Atlantic Anaconda, Richfield's began producing white lead in aat time Markow- they opine itz and Rosner knew or should have paint. known of the hazards of white lead In 1940, using Anaconda also recommended white lead on inte- riors. opine prede- Markowitz Rosner SCM's

cessor, Glidden, also knew should have known dangers began producing of white lead when it white promoted lead in 1925. Glidden its non-leaded zinc- paints by arguing paints, based that unlike lead zinc paints were In non-toxic. Glidden asserted that paints its lead-based were ideal for nurseries and provided youngsters children's rooms as safe, with "a pleasant place play." to Glidden also recommended paints Through lead-based for children's furniture. the sponsored paint 1940s, late Glidden its lead-based for interiors. actively promoted

¶ 92. The LIA also white lead. campaigns push The LIA undertook several identifying relationship products. In a be- 1934, after construction, in white lead and lumber the use of tween Products —Better Paint Cam- LIA initiated a "Forest the including campaign paign." members, The was funded and Na- Sherwin-Williams, Fuller, WP IS&R/Anaconda tional Lead. recognizing declining 1938, after the sales 93. In began Lead Promotion LIA its "White lead,

of white the campaign Campaign." LIA as The characterized the importance campaign by showing "This follows: help industry offset constant would white legislation propaganda." The and of anti-lead threat During campaign duration, on its carried until MacGregor Fuller, all IS&R, and Lead, WE National campaign. and Sherwin- to the Glidden contributed post-war participated campaign in the Williams years. campaign Lead National characterized follows: do than confirm campaign... should more

[T]h[e]... furnish ... in a time-tested material. It should faith vigorously support more the incentive to white-lead way for increased help pave ever. It should than dealers. ... painters both profit prestige national Dutch running parallel campaign, [T]his advertising ordi- Boy campaign, doubles the amount public. narily presenting white-lead to used projects 4—H LIA initiated with In among promote farmers and their white lead clubs to expanded projects in- 1940 to Those were children. county municipal, state, institutions, which clude departments. targeted specifically and health schools Secretary campaign re- The LIA was successful. tendency "growing ported in 1940 that there was product paint line to their to add manufacturers consisting prepared in col- white lead of 100% noteworthy lead, ors .... It is also that attacks on white undertaking which for was one reasons our campaign, greatly have declined ...." issuing publications LIA 95. The was also promote products. lead In the LIA 1930, commenced publishing quarterly magazine pro- entitled Lead to varying year, mote uses of lead. The next LIA produced entitled, Lead, book About Useful Information suggested painters high percentages which use "[T]he higher lead. book better," the stated. The book promoted going also Lead in Paint" as in "White hand improved hand "with sanitation." In the 1941 book Painting Buildings Equipment, entitled Farm and LIA white interiors, recommended lead for domestic particularly paints dark colored on lead lower so walls finger that children's marks would be less Simi- visible. larly published LIA 1942,the entitled, booklet "What Expect Paint," From White Lead wherein LIA promoted the use white for both interior and suggesting surfaces, exterior wood, that for interior plaster pounds and wallboard that 40 of white lead be mixing reducing produce mixed with lead oil to enough paint square 1,000 to cover feet of surface. "[m]any Markowitz Rosner submit that LIA adver- specifically encouraging tisements were directed toward paint the use of the interiors of'low-cost homes.'" years ¶ 96. four later, 1946, Just the LIA Secre- tary disputed poisoning whether lead attributable paint lead-based because he contended that longer inside uses no In contained lead. LIA republished Painting Buildings Equipment, Farm Industry, and, in in Lead in LIA Modern stated: qualities no undesirable practically has lead ...

[W]hite profitable application nullify advantages [T]he .... to its use. Pure white to exterior lead is not confined white advantage for interior be utilized to paints lead can decoration, traditional build- public and particularly ings .... poisoning acknowledged lead that further book ingestion vapors, lead dusts, or from

could occur ingestion compounds. However, the book described danger, posed that most as the book asserted the least paints while, the LIA no lead. All the contained inside paint promoted for interiors. LIA December 1952 that It not until was solely less, economics no on decision,

made a based paints. promotion house of white discontinue its promoting red LIA those funds Instead, the diverted the LIA continued to 1962, however, at least lead. Until Industry, which advocated In Lead Modem distribute The LIA withdrawal for interiors. use of white lead promoting and Rosner lead, Markowitz white from paints' danger acknowledgment opine, of lead a tacit was to children. Pig- According Rosner, to Markowitz campaigns marketing cre- and ad

ment Manufacturers' among enduring that the best consumers an belief ated paint "Remem- paint stated, Lead National was lead —as you use, the better the also, that the more white-lead ber, "[n]otwithstanding They opine paint." re- that further longer years peated no over the statements industry produced use, the for interior white lead applied paints on that were sell white lead continued to interiors."

IV begin analysis ¶ 99. We our with a discussion plaintiff developed In case, Collins. adenocar- vagina benign vagina cinoma of the adenosis of the Collins, in 1975. 116 Wis. 2d at 174. she While (DES) diethylstilbestrol in 1957, útero her mother used prevent miscarriage. In 1971, medical researchers possible "a established exposure link statistical between fetal during pregnancy develop- to DES and the many years ment gina." later of adenocarcinoma of the va- plaintiffs

Id. at 179. The mother could not purchased remember where she the DES or who manu- By many factured it. Id. at 174. time, mothers had during pregnancies. taken DES their Id. at 181. discovery ¶ plain- 100. After the cancer, reproductive system surgically tiff had much of her developed complications. removed and other Id. at drug companies, 174-75. She sued all of which produced or marketed DES. Id. at 175. plaintiff identify 101. The was "unable to

precise producer or marketer of the DES taken her generic mother due to the DES, status some producers pertinent number of or marketers, the lack of passage records, and the of time." Id. at 177. Based on plaintiff prove only duty, law, common had to duty, injury, legal breach of but also causation plaintiffs injury. between a defendant's conduct and a recognized plaintiff Id. at 182. This court that the had prove particular drug company produced a or mar- pregnant keted the DES that her mother took while Obviously, posed order to recover on her claim. Id. this an insurmountable obstacle for her. See id. at

¶ 102. Thus, this court was faced "with choice of fashioning recovery either a method of for the DES from traditional case27which will deviate notions tort negligent permitting possibly defendants to law, or injured liability escape plaintiff." innocent, an Id. at justice 181. "In the interests of and fundamental fair- ness," court chose the former. Id. this I, Article 103. This court observed that Section 9 of the conferred on the court Wisconsin Constitution ability adequate remedy to create an when one did (citing State, 2d not exist. Id. at 182 D.H. v. 76 Wis. (1977)). Similarly, noted 294, 251 N.W.2d196 this court that:

[ijnherent dynamic principle the common law is grow which allows it to and to tailor itself to meet decisis, the doctrine of stare changing needs within which, correctly understood, if was not static and did reversing from them- prevent not forever courts principles or from of common law to applying selves as the need arose. new situations (quoting Schulze, 1, 11, Id. 2d Bielski v. Wis. (1962)).28 adopted Thus, court N.W.2d 105 theory, plaintiffs risk-contribution which relaxed the proof establishing negli- causation in her burden gence product liability claims, for three reasons. "[e]ach defendant to the First, contributed injury public consequently, and, risk of injury to the the risk of plaintiffs. (emphasis

to individual ..." Id. at 191 27 theory The that the risk-contribution court also stated factually "in are proceeded adopt apply to could situations which Collins, 116 2d at 191. similar to the DES cases." Wis. only drug argued The defendants the company

legislature type remedy. court was not could fashion this This writing: modify to persuaded, "It is the function of this court existing necessary promote common if that to the law becomes Collins, justice 2d at 198 n. 12. under the law." Wis. omitted). original, sense, In each footnote shared culpability producing marketing

some measure of or drug. drug Second, the panies Id. at 191-92. because the com- position

were in a better to absorb the cost of the injury (through incorporation insurance, either damage by passing along public awards, or the cost to the 192), doing business," "a id. as cost of at this court drug companies concluded that "it is better have or injury place consumers share the cost of the than to the solely plaintiff." Third, on the innocent the burden Id. recognized damages court that "the cost of awards will drug companies adequately act as an incentive for to test drugs they place general the on the market for medical use." Id. theory

¶ 105. Under the risk-contribution plaintiff Collins, stated in against only need commence an action plaintiff defendant,29 one but the will have allege following prove elements and each satisfaction of the trier of fact: DES; the plaintiffs

[T]hat mother took that DES injuries; the plaintiffs subsequent caused defendant produced type or marketed the of DES taken by mother; the plaintiffs [30] and that the defendant's producing marketing conduct in the DES constituted legally recognized a breach of a duty plaintiff. to the plaintiffs Id. at 193. It was hot fatal to a if claim he or identify type by she could not DES taken 29The onus was on the defendant to implead culpable other Collins, defendants. 116 Wis. 2d at 194. plaintiff required was not to prove that a defendant

produced or the precise marketed DES taken plaintiffs mother, simply required but rather was to show that a defendant produced type (by of DES taken certain identifiable charac etc.). color, size, teristics such as shape markings, Id. at 194. Collins "[i]n court held that the situation mother. cannot what allege prove type the plaintiff where took, as to the third element the DES the mother that the defendant only allege prove need plaintiff DES for drug or marketed the drug company produced Id. miscarriages during pregnancy." use preventing the plaintiff If these elements could be proven, at 194.31 named defendant. all from the damages could recover Id. court concluded that the plaintiff 106. This

¶ liability theory could also on strict proceed products by proving: (1) posses- defective it left the that the DES was when (2) drug that it company; or control of the sion (3) consumer;

unreasonably dangerous to the or user injuries or plaintiffs that the defect was a cause of the (4) drug engaged in the damages; company that or, marketing put nega- DES producing business of tively, infrequent this is not an isolated or trans- that drug principal not related to the business action (5) company; product that the was one which to reach the user or consumer with- company expected change the condition was when out substantial sold.

Id. at 195. However, concerned that this court was "reasonably

only drug companies those defendant incorrectly Collins as dissent construes Justice Wilcox's by the prove type of DES taken requiring plaintiffs J., 210, ignoring the fact that in mother, Wilcox, dissenting, ¶ Collins, only allege and plaintiff prove need drug if the drug produced or marketed the company defendant took. type of DES the mother plaintiff prove could Collins, Wilcox, J., dissenting 116 Wis. 2d with Compare at 194. way

could injury" in have contributed some to the actual (emphasis be held accountable. Id. at 191 n.10 added). plaintiff prima Thus, the after made a facie case negligence products liability under either theory, or strict escape liability proved by a defendant could if it preponderance produced of evidence that the DES it plaintiffs or marketed could not have reached the accomplish mother. Id. at A 197-98. defendant could by establishing produce "that it did not or market subject during period the plaintiff either DES the time the exposed geo- in to DES or the relevant plaintiffs graphical market area in the which mother acquired the DES." Id. at 198. Providing ability prove

¶ 108. defendants the way liability pool their out of "will result in a reasonably defendants which it can be assumed could plaintiffs injuries." procedure, have caused the Id. This imprecise, however, was as it could mean that some remaining may the defendants still be innocent. Never- accepted possibility price theless, this court "as the perhaps ultimately society, defendants, the must pay provide plaintiff adequate remedy the an under the law."Id. at 198.

¶ 109. For those defendants that could not excul- pate applica- themselves, this court concluded that the comparative negligence "provide [d] tion of the most equitable assign liability apportion means to dam- ages among assign- the liable defendants." Id. at 199. In ing liability among defendants, the this court deter- jury may following mined consider the nonexhaustive list of factors: drug

[W]hether the company conducted tests on DES safety efficacy pregnancies; use for to what degree company took a in gaining role FDA ap- proval of DES for in pregnancies; use whether large market share had a small or company or area; company took the lead whether relevant producing the lead of others merely followed warnings DES; issued marketing company whether the DES; pro- dangers company whether the about the or should have or marketed DES after knew duced presented DES to the possible hazards known any company took affirmative and whether public; injury to the public. the risk of steps to reduce Through trial court's exercise of discre- Id. at 200. jury permitted to consider other tion, the could be liability. apportioning Id. relevant factors A parties dispute outset, At the whether theory recognize the risk-contribution this court should Pigment con- claim. The Manufacturers for Thomas's concerned with modi- the Collins court was tend that fying plaintiff had a law to ensure that the common plain- existing remedy, modified, the law was for unless remedy against have had no tiff in Collins would By Pigment anyone. Manufacturers note contrast, the injuries against remedy his his had a for that Thomas remedy, Pigment a Because Thomas had landlords. apply is no need to contend that there Manufacturers theory not to his case. We do the risk-contribution agree. Con- I, 111. Article Section 9 Wisconsin provides:

stitution remedy in the laws is entitled to a certain Every person may he receive in his injuries, wrongs or which for all character; ought to obtain he property, person, justice freely, being obligated purchase and without it, denial, completely and promptly without and with- delay, conformably out to the laws. Pigment

¶ 112. The Manufacturers would have this court conclude that because Collins relied on plaintiff I, Article Section and because in Collins the remedy, was without a I, follows that Article Section applies only plaintiff remedy. when without See ("Article Resp't § Br. at I, 9 was material to the analysis only in Collins because the Court concluded remedy that Therese Collins was entitled to a at law for injuries, existing her and unless law were modified she remedy against anyone."). According would have no Pigment Manufacturers, "The Court decided Col- remedy, lins to ensure that DES claimants had a they among possible that potential could choose, all classes of they

defendants from whom would collect remedy." Resp't Pigment their Br. At 41. The Manufac- oppor- turers contend that because Thomas had an "an tunity judgment against for a the landlords for the full litigated Resp't amount if demanded he had claims," his justification extending Br. 36-37, At there is no Collins. agree Pigment

¶ 113. doWe not with the Manu- reading agree Collins, facturers' of and we do not Pigment I, Article Section 9 is as frail as the Manufac- turers would have us believe.

a ¶ 114. The Collins court was concerned with just ensuring plaintiff remedy more than had a against something. someone for Instead, the Collins court wrote I, that Article Section 9 had been inter- preted in a manner that allowed the court to fashion an adequate remedy Collins, 116 when did not one exist. fashioning particulars In Wis. 2d at 182. theory, re- the court risk-contribution Wisconsin's theory that, end, would mindful in the mained adequate remedy provide plaintiff an should with proof. plaintiff meet the Id. at burden Pig- have with the 115. We serious concerns attempt displace of the ment all Manufacturers' poisoning from its white lead carbonate blame for lead pigment effect have on on landlords and what that will remedy. plaintiffs Although adequacy court of a duty "a for lead arises has held that to test property con- the landlord of a residential whenever knows or in the use structed before ordinary either peeling or care should know there is property," chipping paint Antwaun, 228 on the rental 62, this has also concluded that Wis. 2d at court liability pollution general exclusion32 in a commercial coverage poisoning policy from bars for lead insurance general liabil exclusion the commercial pollution ity policy read: insurance apply insurance does to:

This (1) damage" "Bodily injury" arising "property f. or out escape actual, discharge, dispersal, alleged or threatened release or pollutants: (a) you own, premises occupy; from rent At or any solid, liquid, gaseous or irritant or means thermal Pollutants soot, alkalis, smoke, fumes, acids, contaminant, including vapor, recycled, includes materials to be chemicals waste. Waste or reclaimed. reconditioned Peace, 2d at 112 n.4. 228 Wis.

295 chipped, flaked, or has broken down into Co., or dust fumes. Peace v. Northwestern Nat'l Ins. 228 (1999). 106, 2d 429 Wis. N.W.2d The result of many poisoning is that Peace victims of will be remedy deprived "of an effective for their harm." Id. at (Crooks, dissenting). J., ¶ 116. While Thomas recovered from two of the (Fire Exchange landlords' insurers Insurance and Ger- Insurance), mantown Mutual the settlement with Fire Exchange years Insurance three occurred before Peace decided,33 was and Germantown Mutual Insurance Company apparently pollution did a not have exclusion, as it never raised one. After Peace down, was handed successfully however, the insurer for State Farm raised pollution exclusion, its guage which contained the same lan- Peace,

considered in dismissed from the It is suit. this latter troublesome, occurrence highlights emerging ramifications Peace holds for poisoning. may future victims of lead Those victims being share Thomas's chance in able to recover some- thing negligent from their landlords. troubling

¶ 117. Also is the fact that landlords can liability immunize themselves from for "their acts or poisoning exposure omissions related or lead person dwelling a who resides or has visited the poisoning if, unit at the time that the lead or lead exposure occurred, certificate lead-free status or certificate of lead-safe status was in effect 254.173(2).34 dwelling § or unit." Wis. Stat. As Thomas 33Thomas Exchange, settled with Fire Insurance the in surer for the Street, landlord 2652 North 37th on December 6, 1996. portions § Various of Wis. Stat. 254.173 are scheduled to

be at repealed various times. § 1999 Wis. Act 34 states: record, on how- summary judgment has established his of from lead exist ever, the dangers poisoning court has a "lead-safe status." This notwithstanding Peace, 228 Wis. 2d at 130 n.16 the same. See recognized "in the pollutant a contaminant (equating a dangerous weapon, a loaded pistol same way case, in a and a mamba is even when it is locked up gun it is in a snake, even when confined deadly poisonous house."). reptile

b read- Manufacturers' Further, Pigment the ¶ to Collins is I, of the of Article Section 9 ing importance in error. (1) OR LIABILITYFOR LEAD POISONING IMMUNITYFROM

LEAD creation of section 254.173 of the statutes EXPOSURE. The poisoning exposure the applies that occurs on first to lead or lead effective date of subsection. 113, § 1999 Wis. Act 35 states: day publication, This effect after dates. act takes on

Effective except as follows: (lc) (8d), (by 254.154 SECTION 254.11 The treatment sections (c) (2) statutes, 10), (e), 254.172 and 901.055 254.166 and (2) (c) of the 2. and 3. and 254.173 the creation of sections 254.166 (1) day first of this take effect on the act statutes SECTION publication. beginning month after of the 16th (3) (2) repeal 254.173 the statutes and of section The 10b) (by SECTION of the statutes amendment of section 254.154 day beginning of the month after take on the first 64th effect publication. (1) (2) (3) (title), repeal statutes 254.173 of the The of section repeal statutes 254.154 of the and the recreation section day beginning month after of the 100th take effect on first publication. Pigment noted, 119. As Manufacturers would have this court conclude that because Collins I, relied on Article Section and because in Collins plaintiff remedy, was without a I, follows that Article applies only plaintiff Section 9 when a is without a remedy. only justification" "comparable for extend- ing theory, Pigment the risk-contribution Manufac- plaintiff contend, turers is when is remediless. agree assumption do 120. We with the Pigment argument. They Manufacturers' assume that operative only Article I, Section 9 becomes when a plaintiff contrapositive, is remediless. Stated in the the Pigment Manufacturers assume that when someone remedy, has I, Article Section 9 is not relevant. The import argument recovery of this is that where has against been had tortfeasor, one all other tortfeasors necessarily are absolved.35 Judge

¶ 121. However, as in Brown concluded his concurring opinion below:

The plain meaning of every this section is that person is remedy injuries entitled to a certain for wrongs "all may which he person." receive in his Notice that the wording disjunctive. the way I read this clause, it assuming only means that even if injury, one that injury brought about by separate wrongs against person, person the remedy that is entitled to a "wrong." each 35 Physicians See Corp. Co., Plus Ins. v. Midwest Ins. Mut. 148, 42, 2001 WI App 933, 246 Wis. 2d 632 ¶ N.W.2d 59 (discussing joint general; tortfeasors in "[T]he fact remains that liability the of one defendant liability does not preclude facts."). present the others on the

298 (Brown, concurring) Thomas, J., 377, 2d 22 275 Wis. original). Judge (emphasis Brown went on to write: wrongdoer a case insulates I never seen have just there being exposed to a lawsuit because from wrongdoer. remedy against another exists a Id. reading Judge agree Brown's 122. We with 526, Ebert, 523, 82 v. 275 Wis. See Ross

sentiment. (the (1957) by wrongs contemplated N.W.2d 315 right). legal resulting party's provision from a are those Scholberg Itnyre, 213, 264 58 also v. Wis. See (1953); Winter, v. Menasha Ware Co. Wooden N.W.2d (1915). This court has 437, 442, 150 159 Wis. N.W. explained previously examine three sources we meaning: provision's determining "the a constitutional meaning plain used; in the context of the words practices in at existence constitutional debates and writing constitution; the time legisla- provision interpretation of earliest following passed in the first law as manifested ture adoption." 113, ¶ n. Hamdan, State v. WI (citation quotation 433, N.W.2d785 Wis. 2d 665 264 omitted). correctly Judge noted, the fact As Brown (and may "wronged" by received a Thomas remedy have been from) bearing simply no has on landlord his by "wronged" or more one Thomas has been whether Pigment Manufacturers.36

36 in existence at early practices of the interpretations The I, adopted set forth below. See Section 9 was are the time Article IVA. infra. is

Further, I, Constitution Article Section 9 Wisconsin by interpreted have been provision not a that would to I, right a Article Section 9 is substantive legislature. 299 Although right remedy provision ¶ 123. guarantee certainty recovery, does Neuhaus County, v. Clark 2d 222, 229, Wis. 111 N.W.2d 180 (1961), it cannot be on turned its head such that it plaintiffs right becomes a vehicle to defeat the recovery wrongs by simply committed one because recovery already against some has been had another. liability against I, Article Section 9 is not shield in this sense. injuries by 124. Thomas claims his were caused separate wrongs: by negligence

two first, of his Pigment landlords; second, Manufacturers for negligently manufacturing marketing white lead agree Pigment carbonate as safe. While we with the position Manufacturers that landlords are in the best dangers pigment paint contain the of lead once the paint applied, has been landlords are not to blame for pigment poisonous the fact that the lead in the in the first instance.

¶ 125. Amicus for Civil Trial Counsel of Wiscon- (Amicus Counsel) sin reading Civil Trial contends our simplistic. I, of Article Section 9 is too It states that gainsaying past "there can be no that over the decade or interpretation application so the I, Article Sec- jurisprudential tion 9 have caused considerable dishar- mony e.g. within the Court." See Aicher v. Wisconsin Comp. Fund, Patients 2000 WI Wis. 2d extent a litigant remedy entitles to a as it existed at common law. It does rights. not create legislature may change law, that common but those changes must be reasonable to pass scrutiny I, under Article Section 9.

300 245, 2d Bailey, Tomczak v. 218 Wis. 578 849; N.W.2d v. Ma- Estate Makos Wisconsin (1998); 166 N.W.2d of Fund, 211 41, Health Care 2d 564 N.W.2d 662 sons Wis. Aicher, 237 2d 6. Amicus overruled (1997), 99, Wis. that these cases involved Trial Counsel observes Civil that, the particu- on undertakings depending legislative view, of either point unaccept- lar faction of this court's limited judicial or rem- precluded or ably acceptably I, 9, fit for Article Section This is the proper edies. Civil Trial contends. Amicus Counsel argues 126. Amicus Civil Trial Counsel I, of Article Section 9 establishes and tradition purpose has taken legislature invoked when the it to be Where the acts legislature some unreasonable action.37 submits, this court reasonably, Amicus Trial Counsel did they those decisions and concluded has deferred to here, 9.38More to I, point Article Section not violate 37 Milwaukee, 559, 566-67, 46 e.g. City Hincks v. Wis. See of (statute (1879) immunity to of granting City 1 230 N.W. injuries from personal stemming alone for sidewalk Milwaukee attempt part "an on the of the work struck down it was city grant immunity a or legislature privilege law, general rule while all other munici against a Milwaukee subject operation."); Durkee v. pal corporations are left to its (statute (1871) Janesville, 464, precluding City Wis. prevailing party's favor when Janesville is taxation costs unconstitutional); held in tax case party defendant assessment (1859) (Dixon, C.J., dissenting) 55, 82 Rooney, v. 9 Wis. Phelps ("If unjustifi away remedy legislature [an] can take entirely, thus extent, they destroy can alarming able becomes people constitutional declaration this solemn letter, 'glittering generality,' without substance a mere dead effect."). 2d Stanhope County, Brown 90 Wis. e.g. See v. (1979) govern ($25,000 recovery from limit on 280 N.W.2d 711 9); I, invalid under Article Section mental tortfeasors was not I, Amicus Trial Counsel contends that Article Section 9 does not this court to mold the common empower law it to inconvenience whenever happens plaintiffs seeking for their remedy injuries. Amicus court by of the Constitution. portion conferred this Corp, 173, 189, 2d 95 Acme-Cleveland Wis. Mulder v. (1980). Against backdrop, Amicus this 290 276 N.W.2d argues was an aberration Trial that Collins Counsel 9 I, Article Section as the foundation and its reliance on opinion error. for its was I, Collins, In that Article this court noted interpreted following the 9 had been

Section adequate remedy or forum does an manner: "When process, disputes provide the or due resolve not exist to Constitution, can fashion courts, under the Wisconsin remedy." adequate Collins, 116 2d at 182 Wis. an omitted). (citation Although prin- quotations this juris- ciple parallel I, 9 line of Article Section shows prudence, not outstretched the court in Collins was principle, at not as out- least it stated this when contends. See as Amicus Civil Trial Counsel stretched Ass'n v. D.H., Education 294; 2d at Hortonville 76 Wis. 497, 225 Dist., 2d School 66 Wis. Hortonville Joint (1976). (1975), by 426 U.S. reversed N.W.2d658 (Article (1958) I, party relieve a from apply 9 does not Section obligations); Firemen's Ins. Co. v. Washburn its contractual (1957) County, 214, 224-26, (refusing to 85 N.W.2d 840 2 Wis. 2d negligent immunity for governmental abrogate common law highways). maintenance Setting proposi

¶ 129. aside wisdom of this moment, tion for the even Amicus Civil Trial Counsel agrees McCoy County, that in v. Kenosha Wis. (1928), 277, 218 N.W. this court held that phrase "conformably I, to the laws" Article Section 9 recognized, long system "a relates to established of laws existing adopting in the several states the constitution prior organizations well as from which the organized." law," states were That "common however, is frequently court, refined consistent with the dynamic principle grow that "allows toit and to tailor changing itself within to meet needs the doctrine of correctly decisis, stare which, if understood, prevent static and did not forever from courts reversing applying principles from themselves or common law to new situations as the need arose." (citation quotations Bielski, 16 Wis. 2d at 11 omitted). although provi Thus, I, Article Section 9 may rights," sion itself not create "new it does for allow remedy through existing common law. As Collins recognition allowed of the risk-contribution theory factually in cases, similar we must assess applies whether this common law to Thomas's situat Collins, ion.40 116 Wis. 2d at 191.

40The dissent's lamentations on this are point peculiar. hand, On "recognize[s] the one it validity the of the risk theory. contribution .. unique under the [Collins]." facts of J., dissent). Wilcox, dissenting, (emphasis However, 179 in ¶ the deny dissent cannot that change Collins constituted a on the concept of common law causation in certain cases. And the deny dissent cannot that fashioning change, this Collins I, relied on Article Section 9 to do this.

On the other hand the dissent concludes that we have "introduce[d] I, confusion into our Article jurispru- Section 9 insinuating dence by that provision requires the to court

304 of this "adequate 130. wisdom Confronting ¶ Trial chief Amicus Civil Counsel's remedy" proposition, cannot be maintained is that this proposition criticism ain creating uncertainty way, thereby some principled facial carries Although this criticism number cases. certainty necessarily is not goal appeal, providing The a bad achievable, necessarily thing.41 and that is not changing to the needs adapt common law to develops called, "genius."42 its is, This as it has been society. Co., Casting 2d Moran v. Aluminum 34 Wis. Quality (1967). are there Although 137 542, 551, N.W.2d delineations, clear rules with champion rigid those who law law to subject is "[c]ommon the fact is that judicial including abrogation." continuing development, has suffered two for Thomas because he recovery fashion a Id., implies further wrongs." dissent separate to common-law I, cannot be used remove Article Section 9 tort, recovery presumably such causation. limitations on Id., 205-08. ¶¶ It not. with Collins or does agrees the dissent

Either relying the court for Collins and lambaste cannot both embrace I, Section 9 here. on Article Co, 2d Ct. 102 Wis. Eberhardy v. Cir. Wood See ("Unlike (1981) (Callow,J., dissenting) N.W.2d881 policy, courts deals with broad issues social legislature which omitted)). (footnote deal individual cases." with designed is Notwithstanding that the common law society, the dissent declares adapt changing needs of little than more majority opinion amounts "[sjimply put, a desired result." dictating policy to achieve this court social Further, J., states that Wilcox, dissenting, dissent fact" that the court's decision "majority cannot hide the Id., judicial of sensationalized type n.l. This "results-oriented." common, more but it does regrettably becoming all the rhetoric is in the to be answered more than obscure the issue nothing case. instant

305 Picote, State 42, 249, v. 2003 WI 261 2d 661 19, Wis. process continuing Indeed, N.W.2d 381. refine judicial component power. ment a is vital v. State (1962). Esser, 16 2d If Wis. N.W.2d505 in simply certainty the name of this court deferred to the days passed, eras of would we "succumb to a rule that a judge long should let others dead and unaware of the problems age [or she] which he fives, do his thinking [or her]." Bielski, for him 2dWis. at 11.

B Having ¶ 131. I, determined that Article Section 9 considering is not bar to whether Thomas's is suit factually Collins, similar to we now consider whether factually Thomas's is suit similar to Collins. expansion This court in Collins authorized the theory factually in other Collins, similar scenarios. Although Wis. 2d at 191. this case is not identical to factually Collins, we conclude that it is similar such theory applies. that the risk-contribution prefatory 132. As note, as this court did recognize cases, Collins with DES we that cases involv- ing poisoning stemming pigment pose from lead problems. entirely difficult id. See at 190. The innocent plaintiffs may severely have been harmed a sub- they they may stance over, had no control never prove certainty know or be able with which manu- produced promoted facturer or the white lead carbon- injuries. Pigment ate that caused the See id. possible liability are Manufacturers faced with they may produced white lead carbonate not have again marketed. id. Collins, See As this court did in we plaintiff, probably conclude "that as between the who may pro- fault, at defendants, who have product injury, vided the which caused the the interests justice demand that the and fundamental fairness of injury." Id. at 191. should bear the cost latter dispute an ¶ that Thomas is There is no 133. probably plaintiff and will not at fault innocent who is injuries significant he if is to cost his be forced bear Pigment possibly negligent allowed to sue the given Further, See id. at 191. Manufacturers. poisoning disturbing from of victims of lead numbers given paint, ingesting that white lead carbon- paint, overwhelming pigment added to ate was the summary judgment we record that clear from the is unique dealing set of with an isolated or are not summary far at As circumstances. See id. 181. poisoning problem judgment reveals, the record widespread; and real; it is white lead carbonate is from linger poised catastrophe public health that is it is quite time. some policy ¶ identified Col- The main reasons 134. theory of the risk-contribution lins warrant extension here. Pig- makes clear that the First, the record 135. injury to the risk "contributed

ment Manufacturers injury consequently, public risk of and, to the plaintiffs id. at Thomas.43 See such as" individual showing policies limited how the here is Our discussion in the instant case. dissent's Collins are met implicated that we supposition for its support to this section as citation Wilcox, J., Compare Collins simply misplaced. expanded have Collins' later, require- As we embrace dissenting, seen Many predecessors- of the individual defendants or their simply risk; in-interest did more than they contribute to a pigments knew of the harm white lead carbonate production promotion caused and continued pigment notwithstanding knowledge. Some manu- paradoxically, promoted facturers, even their nonleaded pigments based they as alternatives that were safe in that pose poisoning. did not the risk of lead For those explicit knowledge they that did not have of the harm engendering, given growing were the medical literature early part century, in the of the Thomas's historical experts, Markowitz and Rosner, submit that the industry 1920s the entire knew or should have known dangers products the of its and should have ceased producing pigments, including the lead white lead car- agree short, bonate. In we with Thomas that the record easily Pigment culpabil- establishes the Manufacturers' ity contributing creating for, minimum, at to a risk of injury public. to the compared Pig- Second, Thomas, to the position

ment in Manufacturers are a better to absorb injury. They against the cost of the can insure themselves liability, damage pass along the award, absorb the cost consuming public doing to the as a cost of business. See Collins, id. As we in concluded it is better to have the Pigment Manufacturers or consumers share the cost injury place the rather than the burden on the innocent plaintiff.44 id. See plaintiff

ment that a must that prove pigment the defendant could have contributed way "reasonably some manufacturer Collins, See injury." the actual 116 Wis. 2d at 191 (emphasis n.10 added). 44 The Collins reason, court identified policy another which providing drug an for companies incentive to test ad equately drugs the they place on the general market medical identify pre- unable to 137. Thomas is also that of the white lead carbonate manufacturer cise injuries due the number of manufactur- his caused passage time, records. id. and the loss or See ers, the identify Additionally, he cannot which at 177. ingested.45 types he On of white lead carbonate three proof,46 Pigment Manufacturers this failure of They argue that claim must fall. contend, Thomas's "fungible" or not white lead carbonate was because Collins, implicated policy 2d 192. This is not 116 Wis. at use. has banned for pigment been some here because "sting" Although recognized Collins court time now. damage might develop- spur awards better research from that this formed drug companies, it does seem ment for of the risk-contribution pillar for the court's articulation establishing the predominant Collins as theory. We read theory were undergirding the reasons risk-contribution policy risk of harm and that contributed that the defendants cost. to absorb the position defendants were a better that here policy an consideration also note additional We wrongful deterring knowingly in Collins: present was not causes harm. conduct that comprised of above, was white carbonate As noted 4PbC032Pb(0H)2Pb0, chemical formulas:

three different above, has noted Thomas Also as 2PbC03Pb(0H)2, PbC03. summary establishes, for purposes that presented evidence least, stemmed from poisoning that judgment at his ingesting white lead carbonate. The everyone point. is in the dark on this It seems as if type of white do not which

Pigment Manufacturers establish This is to be they produced promoted. or lead carbonate market, pigment in the lead expected, participants but as they potential information or access have more presumably Collins, See plaintiff. than does the relevant information at Wis. 2d chemically

manufactured from a formula, identical Col- applied lins' risk-contribution cannot be here. We dis- agree. proof problems

¶ 138. One of the the Collins court recognized plaintiff had was she was unable to identify precise producer or marketer the DES among things, her to, mother took due other "the generic status of some DES." Id. at In different plaintiff terms, this court stated that could not identify drug company injury her caused be- part, produced cause 'generic' was, "DES for the most in a any clearly form which did not contain identi- shape, markings." fiable color, or Id. at 180. This court fungible drug produced also observed that "DES was a chemically pharma- awith formula, identical and often prescriptions cists would fill DES from whatever stock they particular on hand, had whether or not a brand specified prescription." in the Id. denying 139. There is no that Collins involved a chemically allegedly situation where a identical formula caused harm. It is also true that white lead carbonate was made from three different chemical formulas. How- fungible ever, Collins did not address whether DES was identity, because of its chemical because of inter- its changeability generic due to its status, because of question fungibility require both. is, does chemical identity? We conclude that it does not. identity

¶ 140. Chemical was a feature that DES apparently shared, and it was that chemical formula possibility causing that created a Here, harm. al- though the chemical formulas for white lead carbonate toxicologist, same, Mushak, Thomas's are not the opines common denominator the that it is the According Mushak, the counts: lead. formulas that formulary white lead carbonates do differences between bioavailability of, hence the conse- not affect by, pigment.47 quences Thus, the lead the for- caused lead carbonate are in for DES and the white mulas both footing being inherently hazard- a sense on the same imprudent Therefore, be to conclude that ous. it would identity fungibility and, in is a touchstone for chemical theory. prevent To turn, for the risk-contribution triumph substance, form over we conclude that identity required. is not chemical

b question does still remains: what 141. But "[w]hile fungibility It noted that 'fun- mean? has been discussing gibility' [has] for become an obsession courts explained liability, no has ever court market share why impor- thoroughly 'fungibility' means or it is what Beyond Liabil- Rostron, Market Share tant." Allen Theory Liability ity: Proportional Share Non- A course, Pigment by the is controverted point, This witness, expert Manufacturers' Pigment Manufacturers. Banner, M.D., Ph.D., lead in different opines William the bio- biologically fungible. He asserts products is not many varies, on lead-paint depending availability of lead factors, composition as the chemical physical such chemical particles pigment of the the size pigment, of the lead used as material, manufacturing lead-bearing pigment or other properties and chemical process, physical film. facts

However, summary judgment, we construe the on Further, do non-moving we party. light most favorable to disputes. factual not resolve (Oct.

fungible Products, 151, UCLA L. 52 Rev. 163 2004) Beyond [hereafter Liability]. Market Share Ros- product fungible tron writes that a can be in at least three different senses.48 product "functionally First, a can be inter-

changeable." meaning, product Under this a whether is fungible degree heavily dependent is a matter of on the context of whatever "function" is at issue. For example," signaling 'for Eve, New Year's a blast from an saxophone may equivalent one auto horn and from a be noise, as but few would want to dance to the former.'" (quoting Id. at Accu-Tek, 163-64 v. Hamilton 32 F. (E.D.N.Y.1998)). Supp. fungibil- type 47, 2d 51 This of ity significant why product is "because it is a reason a may pose unusually problems." severe identification Id. at 164. product fungible Second, can be in the "physically indistinguishable."

sense that it is Id. at 164. appearances deceiving, degree Because can be of 48 understanding common "fungible" of the word is: "1: such a kind or specimen nature that one or part may in place be used specimen another or equal part in the obligation satisfaction of an ... 2. capable of mutual substitu interchangeable." tion: Dictionary Webster's Third New Int'l 922 (unabr. 1986). "Fungible" similarly defined in The American Dictionary Heritage meaning "interchangeable. as Something exchangeable that is or substitutable." American Heritage Dic (3d tionary 1992); 735 ed. see also Wheeler v. Raybestos- Manhattan, (Cal. 1992) 11 Rptr. Cal. 2d App. Ct. " (resorting to dictionary and defining "fungible" '[o]f such kind or specimen nature that part may one or place be used in specimen of another equal part in the satisfaction an obligation' or '[[Interchangeable.1" (quoting Webster's Col New (7th Diet., legiate 1969)); ed. Accu-Tek, Hamilton v. 32 F. (E.D.N.Y. 1998) Supp. 2d (similarly resorting to dictio definition). nary similarity required,

physical as with functional inter- heavily changeability, depends "For ex- on context: ample, brands a cola difference between two original packaging will be obvious. After drink in their they might poured being bottle, from the can or be indistinguishable appearance, completely distin- guishable others, for some consumers and not taste analyzing distinguishable easily them to chemists laboratory." Id. As inter- in a at 164. with functional fungibility product changeability, a in the sense that is indistinguishable significant physically because it is is may pose why product a identification a reason also problems. Id. 165. at fungible product

¶ be as it Third, 144. a can "uniformity presents at Under this of risk." Id. a sharing meaning, "[a]s an identical or virtu- a result of ally formula, each manufacturer's identical chemical every product posed of risk as other the same amount products product. therefore were manufacturer's being 'identically more or less with none defective,' prod- However, Id. "whether defective than the rest." depend poses on choice the a uniform can uct risk milligram each risk is measured. While unit which presented risk, each DES amount of DES the same dosages." pills pill came in different not, because the did may products different Thus, contain Id. at 166. there is substance, concentrations of hazardous uniformity leeway that strict chemical does to conclude fungible. Id. 166-67. all at Nev- not render substances liability important to market-share ertheless, this establishing concretely market" as it defined "the by the manufacturers.49 risk undertaken theory, agrees Rostron Under the market-share "uniformity of fungibility is risk" logical understanding of only 145. Fungibility, therefore, is not a term that capable being defined with Its categorical precision. character will on depend the context of the its injury, cause, and the particular obstacles encountered to the linking possibly causation defen- negligent ("It Hamilton, dants. See 32 F. 2d at Supp. is the characteristic relevant to the matter at issue that determines whether is the product same as and substitutable for another, therefore, whether ..."). two are interchangeable. The facts presented case, when in the construed light most favorable to Thomas, however, establish that white lead carbonate is fungible under any above meanings. First, white lead carbonate was function-

ally All interchangeable. forms of white lead carbonate were lead pigments, which constituted one the two (the necessary components of paint other being "vehicle"). The pigment is what provided the hiding is, uniformity —that chemical presumably dosages with similar or quantities that of itself defined "the market." See —because Rostron, Beyond Market Allen Liability: Theory Share A of Proportional Products, Liability Share Nonfungible 52 (Oct. 2004). UCLA L. Rev.

However, Rostron notes that Wisconsin's risk-contribution theory is not anchored to "the market" as is market-share liability. Id. at 170. Rostron states that the risk-contribution theory is akin "proportional liability," to share not which does necessarily require products pose that "uniform risks." Id. Rostron "[u]nlike states that requiring other states apportion- liability] ment [of to be alone, based on market share data Wisconsin court made clear that market just share data was one many Collins, among considered." Id. factors to be at (citing 199-200). 2d at approach, Rostron, Wis. This "would enough to be seem flexible to accommodate situations where pose degrees products varying of risk." Id. Although may varying paint.

power be there differing powers physical grades hiding on based pig- particular properties and concentrations degree, not function. are differences of ments, those summary judgment on Second, based physically are indistin- record, white lead carbonates guishable. tell, As as Thomas has been able far pigment. pigment lead carbonate And at issue is white appears tell, far has able to there as Thomas been white carbon- no the various lead be difference between Although Pigment contend Manufacturers ates. were manufactured accord- that lead carbonates white ing processes, in which resulted white lead to different physi- physical properties, of different these carbonates only microscopic on the are available cal differences is the white concern here whether scale. Our indistinguishable physically in the con- carbonates are (in using paint) and to whom is text in which it is used (the injured acknowledge party). We consumer markedly identity physical in this is different case plaintiffs Collins, the from that Collins. Whereas identify characteristics about mother could particular certain analysis ingested, type pill DES she paint by possible pigment here, as its nature defy specific identification. Never- concentration more physi- theless, conclude the factual circumstances we present interchangeability are suffi- that are still cal ciently confines. within Collins' to remain similar already noted that white Third, we have "virtually utilizing produced iden- were carbonates car- all white lead formulas" such that tical chemical "identically 165; id. at see defective." See bonates were Rptr. Raybestos-Manhattan, 11 Cal. 2d also v. Wheeler 1992) (Cal. although App. (concluding that 109, 111 Ct. chrysotile containing pads fibers were asbestos brake single not all manufactured from one chemical formula, "they fungible containing roughly are ... virtue comparable quantities single fiber, asbestos chrysotile."). It is the common in denominator various white lead matters; carbonate formulas that namely, lead. Therefore, based on the factors identified factually Collins, we conclude that Thomas's case is

similar to warrant extension of the risk-contribution theory.

C Pigment ¶ 150. Manufacturers, however, contend there are a number factual dissimilari- preclude ties between recognizing case and Collins that should theory the risk-contribution here. While are there dissimilarities between the we two, do not agree that these defeat the extension of Collins this . case. Pigment

¶ 151. First, Manufacturers note paint allegedly ingested that the Thomas could have applied any been at time between construction of the two houses 1905 and the ban on lead significant span greatly in 1978. This time exceeds the during plaintiffs nine-month window which mother Pigment would have DES, taken Manufacturers attempted note. Given that Collins to strike a balance assuring plaintiff remedy between providing a DES had a opportunity pill

a realistic to each DES prove manufacturer to plaintiffs that it could not have caused the (by establishing harm its DES could have during pregnancy), Pig- her the reached the mother not ment Manufacturers contend that Collins should be given they ability have no reasonable extended that exculpate themselves. during recognize

¶ 152. We that the window injury possible causing the white carbonate which eventually placed in that harmed Thomas a house drastically larger a than nine-month window always pregnancy. However, the will not be window large appears potentially if as in this case. Even Pigment argu- routinely be, will the Manufacturers' they put perspective: are ment must be tially into essen- arguing negligent their conduct should be that they got away long. it for too As excused with because says, Pigment arguing "are Thomas the Manufacturers they under not be held liable the risk that should magnitude doctrine because of the of their contribution wrongful conduct." providing pos-

¶ was concerned with 153. Collins exculpate sibly a them- innocent defendants means to by establishing product their could not have selves they injury. Collins, If 2d 191 n.10. caused the Wis. equities the "favor so, not do this court stated that could placing consequences 198. on the defendants." Id. at simply support reversing Equity does that balance Pigment from benefited Manufacturers because manufacturing marketing lead carbonate for white significant period time. Pigment contend Next, Manufacturers theory should not be ex- that the risk-contribution poisoning have Thomas's lead could tended because many agree that different sources. We caused from been poisoning indicates can record stem from many drinking air, foods, water, soil, ambient dust. Pigment argue Further, Manufacturers theory ex- risk-contribution should not be poisoning produce

tended because lead does not "signature injury." explanations As alternate for cognitive Pigment deficits, Thomas's the Manufactur- brought genetics, ers have forth evidence that birth complications damage causing to the central nervous system, deprivation, inadequate severe environmental parenting, parental disorders, emotional and child varying ways, impair- all, abuse could cause such ments. arguments

¶ bearing 156. These have no theory on whether the risk-contribution ex- should be tended to white lead Harm harm, carbonate claims. is "signature" whether it be or otherwise. Even under the theory, plaintiff the risk-contribution still a retains establishing negli- burden of causation. To establish a gence theory, claim under the risk-contribution this plaintiff court that concluded the nonetheless to needed prove plaintiffs inju- subsequent that "DES caused the Similarly, Collins, ries." 2d at Wis. 193. aon products liability claim, the Collins court held plaintiff prove to has "that the a defect was cause of the injuries plaintiffs damages." Id. at 196. On whatever theory plaintiff proceed, to chooses this causation showing preponderance must be made ultimately evidence, and "to the satisfaction the trier plaintiffs only of fact." Id. at 194. The burden is relaxed respect establishing specific type with plaintiffs of DES the took, which,

mother case, translates specific type into the of white lead carbonate Thomas ingested. See id. at 193-94. plaintiff

¶ concerned a who Collins 157. While merely injuries "signature" nature, that means of a had may make to his have a harder case to that Thomas Pigment jury. Manufacturers are Further, while the poisoning argue could that Thomas's correct any an sources, from number have come jury. argument made before the to be argue Finally, Pigment Manufacturers they in exclusive control of were not that because product model created, the risk-contribution risk their again disagree. apply them. We should again relevant This was not distinction why it Further, we see no reason should he Collins. First, as were the ones who at least two reasons. doctors dosage prescribed DES, so too were of white lead that mixed the amount manufacturers paint paint. However, the did not alter in the carbonate anymore toxicity than white lead carbonate the by filling prescription. pharmacist To the the did actually contrary, best, at the manufacturers toxicity. In other the white lead carbonate's diluted dangerousness of the white lead the inherent words, Pigment pigment the existed the moment carbonate it. Manufacturers created replete evi-

¶ Second, record is with the actually Pigment Manufacturers dence that shows aggressive promotion magnified through the risk their despite the awareness of carbonate, even of white lead toxicity had case, In whoever of lead. either carbonate is the white lead "exclusive" control over immaterial.

D brought negli- 161. Thomas has claims for both gence products liability. Applying and strict the risk- theory negligence contribution to Thomas's claim, he prove following will have to elements to the satis- faction of the trier of fact:

(1) ingested That he carbonate; white lead (2) That the white lead injuries; carbonate caused his (3) Pigment That Manufacturers50 produced or type marketed the ingested; white carbonate he (4) Pigment That the Manufacturers' conduct in pro- ducing marketing the white lead carbonate consti- tuted a legally recognized duty breach of a to Thomas. prove See id. at 193. Because Thomas cannot specific type ingested, of white lead carbonate he he only prove Pigment pro- need that the Manufacturers during duced or marketed white lead carbonate for use period: the relevant time the duration of the houses' existence. See Id. at 194. Applying theory the risk-contribution products liability

Thomas's strict claim, Thomas will prove following have to elements to the satisfaction of the trier of fact:

(1) That the white lead carbonate was defective when it left possession pigment or control of the manufac- turers; 50Thomas named several promoters manufacturers and Collins,

white lead carbonate. Under a plaintiff only need name Collins, one defendant. 116 Wis. 2d at 193. (2) unreasonably dangerous That it to the user or was consumer;

(3) injuries That the defect a cause of or Thomas's damages;

(4) engaged That manufacturer in the pigment marketing of producing business white lead carbon- or, put negatively, ate that this is not an isolated or infrequent related to the principal transaction manufacturer; and, pigment business of the (5) product company That was one which the expected to reach the user or consumer without sub- change in stantial the condition it was when sold.

See id. at 195-96. prima Thomas makes facie case Once proof claim,

under either the burden of to each shifts prove preponderance defendant to of the evidence produce that did not or market lead white carbonate during period geo- or in the either graphical the relevant time However,

market where the house is located. if relevant records do not exist that can substantiate equities [white defense, that the either "we believe carbonate] placing consequences on lead cases favor [Pigment Manufacturers]." Id. at 198. In addition to specific cases, defenses, and unlike the DES these may ample grounds Pigment Manufacturers here have prima case, and eviscerate Thomas's facie with attack grounds including poisoning some of those (since any could stem from number of substances ubiquitous) it is difficult to know itself is injuries poisoning stem from lead whether Thomas's they injuries.51 signature are not assertions, seen, easily contrary can be to the dissent's As Wilcox, J., liab[ility]" here. "absolute[] this court has not created procedure continue to 164. We believe that this pool reasonably in a will result defendants which can injuries."52 plaintiffs "could be assumed have caused the See id. at 198. The aside, alarmist tone of the dissents application our quirement of Collins here re- achieves Collins' pigment

that it be that the shown defendant "reasonably manufacturer could have contributed way injury." (emphasis some to the actual Id. at 191 n.10 added). procedure perfect is not could result drawing actually in some innocent, defendants who are particularly given significantly larger span time at particular However, issue this case. Collins declared accept price that "we perhaps ultimately society, this as the defendants, pay provide

must plaintiff adequate remedy an under the law."Id.

E Pigment ¶ 165. The Manufacturers raise consti- challenges application tutional to our of the risk- theory they contribution to Thomas's First, claims. argue principles governing it violates retroactive liabil- ity by attaching unanticipated legal new, severe, consequences previously completed. to conduct See (1998). Apfel, Eastern Enters v. 524 Second, U.S. 498 they argue process by establishing it violates due evi- dissenting, Instead, adopted straight we have applica- tion of this burden shifting analysis court's in Collins and applied Collins, it to the lead carbonate claims. See 116 Wis. 2d at 197-98. 52For those defendants who cannot exculpate themselves, Collins concluded that comparative negligence proper was the assigning Collins, means of relative fault. 116 Wis. 2d at Collins, recognize 197-200. We aspect but do not address it further by any because it was not mentioned parties. are irrational or do not dentiary presumptions & for rebuttal. See Western a fair opportunity provide (1929). Henderson, v. Atlantic R.R. 279 U.S. to a Third, right their due they argue process defense is violated. meaningful present opportunity Educ., Carolina State Bd. See v. North Huntley (4th 1974). F.2d Cir. are not ripe.53 166. These constitutional issues on and as summary judgment, As case is before us in material facts are we remand this case many dispute, for trial.54

53 Prosser, J., dissent, dissenting, a One takes constitutional analysis beyond Pigment what the Manufacturers have well analysis our advanced in this court. That dissent writes how process due and how procedural violates substantive as well Prosser, J., dissenting, equal protection. it also violates analysis sur process 282-305. The dissent's detailed due ¶¶ argument that extension of passes Pigment Manufacturers' problems, equal due and the dissent's process Collins creates Pigment Manu analysis not even raised protection Although may have fashioned a more facturers. the dissent argument Pigment than Manu constitutional have depth facturers, ripe not based on the we maintain that issue is Accord presented posture and the of this case. competing facts reach these issues. ingly, we do not

54 J., dissent, Prosser, dissenting, A also discusses whether limiting liability for the analysis should result "public policy" Prosser, J., dissenting, here. Pigment Manufacturers by the argument This was also not advanced 306-14. ¶¶ questions Pigment public policy Manufacturers and thus the Accordingly, to as with fully presented have not been this court. arguments, opinion we no on the express the constitutional retains analysis, acknowledge that this court except dissent's factors but ability liability public policy to limit based on has finding negligence before a rarely power invokes this Sersch, 2003 262 Wis. 2d occurred. See Alvarado v. WI "In court in Alvarado: most 662 N.W.2d 350. As this stated V argues ¶ 167. Thomas also that he should be able present liability ju- alternative theories of to the ry: specifically liability enterprise conspiracy. and civil point, agree Pigment On this we with the Manufactur- pursued. ers that the claims cannot be A conspiracy ¶ 168. A civil is "a combination of two persons by accomplish or more some concerted action to purpose accomplish by some unlawful or to unlawful purpose means some itself unlawful." Onderdonk (1977) Lamb, v. 2d 241, 246, Wis. N.W.2d (citation omitted). quotations minimum, "At a conspiracy show there must be facts that show some agreement, explicit alleged otherwise, between the conspirators sought coop on the common end and some Augustine eration toward the attainment of that end." v. League B'rith, 75 Wis. 2d Anti-Defamation of B'Nai (1977). 216, 249 N.W.2d547 "To state a cause of action (1) conspiracy, complaint allege: for civil the must (2) operation conspiracy; formation and the (3) wrongful pursuant act or thereto; acts done and the damage resulting Onderdonk, from such act or acts." 2d Wis. at 247.

cases, the practice better is to jury submit the case to the before determining whether the public policy preclude considerations liability. Only in those cases where the are simple facts to ascertain and public policy the questions fully have been may presented a court public policy preclude review liabil- Id., ity before trial." 18. ¶ Pigment argues Manufac- ¶ that the Thomas 169. public through cooperated LIA to mislead turers government hazards of white they to conceal the and the argues doing that so, Thomas In lead carbonate. selling prod- tortious end their common

furthered thereby they com- children, harmful knew was uct disagree. conspiracy. mitting We civil recognize Collins, declined to In this court conspiracy because for DES manufacturers claim a civil Collins, only "parallel behavior." the record showed "[t]here is no that This court stated 2d at 188. Wis. defendants either that in the record indication approval gain tacitly FDA explicitly collaborated misrepresent they collaborate to could turn that so preventing efficacy safety of DES for use theory miscarriages." said, "this court Further, this Id. the fact we consider unworkable when becomes many drug companies well DES market entered the approval. should not be later entrants FDA These after charged knowledge participation in or with conspiracies." alleged Id. and 1947 Pigment notes, each As Sherwin-Williams partici- story regarding unique its had a Manufacturer any explain pation when LIA. Thomas does in the acts, who agreement to commit tortious reached was agreement, other and when the involved agreement. evi- parties best, At his entered into this organization, LIA, a trade dence establishes products promoted aggressively took, what possible any ensure that be, measures seems to products and unencum- free remained market for lead bered. Pigment Manufacturers, ei- Further, individually successors-in-interest, all were or as

ther varying "every

members of the LIA at However, times. by action a trade association is not concerted action the association's members." v. Associated AD/SAT (2d 1999); Press, 181 F.3d 233-34 Cir. Edwardson Family Co., v.American 754, 762, Mut. Ins. 2dWis. (Ct. 1998) ("[M]ere App. knowledge, 589 acquiescence N.W.2d approval plan, cooperation or of a without agreement cooperate, enough is not to make a person party conspiracy."). ato We conclude that presented Thomas has not sufficient material facts to conspiracy sustain his civil claim.55

B argues enterprise 173. Thomas next that an liability theory ais viable alternative. "Under the en- terprise liability theory, industry-wide it is the standard injury, is the cause of and each defendant participates perpetuating using inadequate standard has contributed to and is liable for the plaintiffs injury." Collins, 116 Wis. 2d at 186. As in enterprise liability Collins, we conclude that is not available here. argument

¶ 174. The crux of Thomas's is that the Pigment through effectively Manufacturers, LIA, prevented regulatory oversight industry into the

55Alternatively, asking Thomas seems to be to be able to present conspiracy only civil claim if he does not have a viable claim under the theory. risk-contribution Thomas writes in his brief that the "conspiracy claim is a viable alternative claim in the absence of a claim under the risk-contribution theory." agree Because we that Thomas pursue can the risk- theory, contribution we will construe withdrawing Thomas as conspiracy his civil claim. designed targeted lobbying

through campaigns to frus- product. How- for the conditions and standards trate industry, sought protect its the LIA ever, while industry highly "[t]he paint indicates was record jealously guard- paint company competitive, with each ing secrecy does of their formulas." Thomas explain ever a small concentrated not when there "industry" De & here. Hall v. E.I. Du Pont Nemours See 1972) (E.D.N.Y. (noting Supp. Co., Inc., F. "special composed applicability to industries doctrine's units"). Therefore, decline we a small number liability adopt enterprise Thomas's invitation to theory this time.56 at

VI ¶ sum, I, In we conclude that Article Section against seeking or for recover one 9 is not a barrier recovery already had has been more tortfeasors when against risk- another. further conclude that We theory applies to white lead carbonate contribution Although Pigment raise con- Manufacturers cases. challenges conclusion, those issues to this stitutional yet ripe. Thomas are further conclude that We conspiracy proceed on his claims for civil cannot liability. enterprise appeals

By court of the Court.—The decision of the part part remanded and reversed is affirmed proceedings opinion. consistent with this further J., ROGGENSACK, DRAKE 176. PATIENCE participate. did not argue long as his Alternatively, Thomas seems on the Pigment Manufacturers proceed against

action can Collins, enterprise the issue of court need not reach basis of liability. (dissenting). WILCOX, 177. JON E J. It is Today's

often that bad make bad said facts law. decision legal epitomizes that ancient axiom. The end result of majority opinion pig- defendants, that the product be for a manufacturers, ment can held liable they may produced, may may may or not have which plaintiffs injuries, not have caused the based on con- may years ago duct that have occurred over 100 when part some the of defendants were not of even the though injury market. the in relevant Even this case is tragic, plaintiff the cannot demonstrate that he was poisoned as a of carbonate, result white lead much type produced by any of less the white lead carbonate of respective importantly, defendants. More he cannot prove supposed when the white lead carbonate that poisoned allegedly applied him was manufactured to supposedly poisoned. in which houses he was However, none of these facts seem to matter to the majority. Subjecting

¶ 178. defendants this case to liability under these circumstances amounts to an un- unprecedented warranted of relaxation the tradi- governing liability, tional rules tort and raises serious fairness, concerns fundamental as the defendants realistically exculpate will be unable to themselves. The majority opinion only liability not creates the that risk may wholly proportion culpability be out of with the possibility defendant; each individual it raises a distinct may injury some defendants be held for an liable they majority did not and not could have The caused. roughshod prin- content to seems ciples run over established rights of causation and the of each defendant to present judged a defense and be on based its own majority's actions. decision renders Wisconsin the liability form of collective state some only apply suits under similar facts. lead paint validity I the risk- recognize 179. While court recovery by articulated theory contribution Co., Eli v. 2d Lilly Collins Wis. N.W.2d case, I wholly unique under the (1984), facts of of that theory with the majority's expansion disagree case factually case. Because this is present cover the from Collins on several levels, distinguishable of Collins entirely this case majority's expansion Further, risk-contribution by applying inappropriate. majority case, essentially to the facts of this theory theory explicitly a version of risk-contribution adopts the Collins court. rejected by A of law adher system requires legitimate if even such adher

ence to established legal principles, a result deemed desirable produce ence does of this court. Our wisdom of four members collective to four law used to a require plaintiff prove common negli in recover a of theory order to under elements Through and duty, breach, causation, damages. gence: eliminated the essentially this court has years, out the by the second element prove that a plaintiff requirement of Wisconsin, owes a everyone duty that holding Sersch, Alvarado v. entire care to the world. reasonable WI 55, 16, 74, Today, 2d 662 N.W.2d 350. 2003 262 Wis. ¶ if is majority sympathetic that a proclaims plaintiff the a of a defendant was "industry" and the which enough a with plaintiff may dispense part culpable enough, is a against party of the third element and recover proof that party not been shown the though even has in some to the way could have contributed reasonably the Simply majority opinion actual plaintiffs injury. put, 329 to more amounts little than this court social dictating to achieve a desired result.1 policy

I I by discussing the in this begin facts case. majority the reader with over 50 presents pages of so-called "facts" in order to construct an intricate tap- and on estry part malfeasance culpability as a In so, whole. industry doing majority attempts what utterly lacking conceal in this case: plaintiffs proof evidence of a reasonable connection between the of each conduct defendant and Collins, injuries.2 See 2d plaintiffs 116 Wis. at 191 whole, majority opinion Taken as a cannot be said to a fair neutral "conduct evaluation of the merits of the arguments parties' light of the state's laws and constitution." Fund, v. Wis. Comp. Ferdon Patients 125, 2005 WI 2d majority Wis. 440. The N.W.2d cannot hide the fact its results-oriented simply unprecedented decision is unsupported any Wisconsin case law case from another jurisdiction. majority's Much of the statement facts implies have stopped

defendants should manufacturing lead-based paint at one time or another production and switched See majority op., non-lead However, alternative. 41-52. ¶¶ design Thomas's claims on based defective have been dismissed 24, 2000, and are not before July the court. On the circuit court an dismissing entered order Thomas's "first and second causes asserting of action... liability claims based on strict negligence, insofar as those dependent theory claims are upon design defect." This order been appealed. has not The claims predicated before court are on failure defendants' dangers warn of the their It product. thing is one to construe all disputed light issues of material fact in a most favorable to nonmoving the on party summary judgment; it another quite is attempt to to obscure the appeal issues on and the by "hide ball" ("We... require the defendant it be shown that n.10 drug reasonably company have contributed could injury."). Many majority's way the to actual of the some question simply of whether are irrelevant the "facts" can be said defendant this case each individual reasonably plaintiffs actual the have contributed to injury. discussing Thomas can what 182. Before paint prove,

cannot a brief discussion paints industry All two is in order.3 include basic Pigment, pigment components: and the vehicle. hiding power imparts carbonate, such as white pig- protects area. The vehicle allows the the surface spread and adhere to the surface which ment to be applied. and thinner. also includes drier The vehicle industry being capac- are sued in their defendants paint pigment, ity specifically, producers white lead carbonate. was used in lead carbonate 183. White years, times. Over the States since colonial

United produced no less than six white lead carbonate was single processes. such, no for- there was different As and white lead carbonate mula for white lead carbonate comprised chemical com- of three different could be compounds pounds.4 in chemi- all differed These three they composition, con- of lead oxide cal amount inundating copious amounts irrelevant reader with away from the dearth the focus factual material in order to shift legal authority supporting opinion. taken from the undisputed facts are Many following of John A. Hetimann. affidavit comprised of one of carbonate" could be "Basic lead (2) (1) following 4PbC032Pb(0H)2Pb0 two formulas: formula, to as "normal The third referred 2PbC03Pb(0H)2. carbonate," was PbC03. pH respect given

tained, and value. Even with to a vary by up formula, the amount of lead could to ten percent. having formulas, 184. These in addition to dif- compositions

ferent chemical and different concentra- significant possessed oxide, tions of lead also differences physical properties, including spe- in differences in: gravity, bulking absorption, hiding cific values, oil power, particle shape. size and These differences "[depending power hiding are crucial because: on the pigment pigment used, of the amount of —and vary dramatically thus lead—could between batches equally capable covering specified surface area." added.) (Emphasis Further, white lead carbonate was not sold

generically; the market white lead carbonate was extremely competitive. possessed Each manufacturer aggressively its own label, distinctive brand and marketed its own version white lead carbonate. For instance, "National Lead offered 'five white- different stating '[e]ach special leads,1 of the five has its own paint-making Impor- combination characteristics.1" tantly, "paints vary with the same or label brand could significantly depending in lead content on the color or added.) paint." (Emphasis tint ¶ 186. We also note white lead carbonate was exclusively by industry. not a material used routinely White carbonate was utilized in the pottery ceramics and in the business first half of the century. major Thus, twentieth several customers of produced firms that white lead carbonate were not paint manufacturing. involved important emphasize ¶ 187. It is that the in- dustry being capacity are defendants sued their manufacturers of white lead carbonate and not the product, paint. cen- "Until the late nineteenth finished tury, paint did not sell dealers manufacturers 'mixings' ingredients paints they which sold — paints. purchasers Pre- own then mixed make their paints quality, particu- pared viewed as inferior were early larly ready-mixed paints often used the because ingredients." inferior early "painters

¶ in the Thus, decades 188. meth- had own individual formulas or 1900s often their mixing they thought paint best, ods for was job required." depending specific a "Paint on what in the manufacturers, which there were over 200 of decided area alone between 1910 and Milwaukee pigment types, and amounts to which combinations "Large purchasers had own also sometimes their use." unique specifications." such, in to the

As addition pigments, varying relative and "the formulas brands pigments in varied amounts and concentrations of added.) paint (Emphasis formulations." different from ¶ contained lead Further, lead 189. painters pigment, as used other than the some sources catalyst pigment." rather than as a lead a drier or "as highly was, is, a individual "Paint formulation still type undertaking." one of 'white short, In "there was no paint.'" lead indicates that note that the record also 190. We manufacturing carbonate, in for white lead market competitive, quite being Rather fluid.

addition to "industry" generically referring whole, to the than majority, role we examine each defendant's as does production as the carbonate, lead in the of white suing plaintiff defendants in this individual case "industry." an began production Sherwin-Williams opened plant in carbonate in when it white lead Chicago. 1930s, In the Sherwin-Williams shifted its emphasis lithopone products. By 1937, almost none paints interior Sherwin-Williams' contained white pigments. production Sherwin-Williams lead ceased by white carbonate June of 1947.

¶ 192. Atlantic Richfield is successor in interest to (ALPC) Company Anaconda Lead Products and Inter- (IS&R). Smelting Refining Company national began operating Chicago began ALPC in 1919 and selling pigment, including lead carbonate, white acquired by In 1936, ALPC was dissolved and operated Chicago plant IS&R. IS&R until 1946. Its production during of white lead carbonate the war was greatly required stop making reduced, and it was white lead carbonate for months at a time. IS&R sold Chicago facility Eagle-Picher Company to the merged 1946. IS&R with ALPC in which was then acquired Atlantic Richfield in 1977. Company began

¶ 193. The DuPont manufactur- ing paint paint pigments and in 1917. DuPont manu- factured and sold white lead carbonate from 1917 although pigment any 1924, it did not sell white lead other manufacturer. onward, From 1917 DuPont sold paint competed pigments, non-lead with white including lithopone and titanium dioxide. DuPont did not have a retail store in Milwaukee and "never an sold paint interior trade sales that contained white lead pigment." Corporation

¶ 194. The SCM is successor inter- (Old Glidden). Company est to The Glidden Old Glid- incorporated merged den in 1917 with SCM in subsequently acquired by 1967. SCM was another com- pany company. pur- and sold to a British Old Glidden Company Pennsylva- chased the Euston in Scranton, began production nia, and of white lead carbonate in produced lead carbonate until Glidden white 1924. Old During facility. the 1920s 1958, Euston when it sold the largest supplier 1930s, Old Glidden was the world's large lithopone titanium manufacturer of and a Although a member of Glidden was dioxide. Old it did 1958, from 1924 until Lead Industries Association participate Promotion Cam- White Lead not paign.5 Cyanamid being is sued based 195. American production after of white lead carbonate

on its own companies 196. The dates aforementioned production of lead carbonate were involved in the white significant given particularly frame at issue the time alleg- Thomas in this case. two residences where containing edly ingested paint, supposedly white respec- carbonate, were built in 1900 lead tively. by paint Majority op., ¶¶ Lead was banned 7-8. § 657u, 221, Laws of 1979 ch. Wisconsin in See (1980)). many § (creating Thus, Stat. 151.01 Wis. participants in the defendants in this case were significant periods lead carbonate market for white companies during above frame. None time manufacturing lead carbonate when white were all built. Almost in which Thomas resided were houses production companies of white had ceased the above years approximately before lead carbonate These in Wisconsin. of lead was banned use importance considered when facts are of critical facts in this case. context of the other defendant that record establishes that We note the the Lead Industries Associa ConAgra was never member of tion. complaint,

¶ 197. In his amended Thomas admit- identify specific ted that he "is unable manufac- turei~, supplier present and/or distributor of the Lead exposed.t Moreover, the residences in which he was response Thomas admitted in his to the defendants' interrogatories knowledge that he has no of when paint applied lead-based was to the houses where he allegedly ingested paint, paint what brand of applied, applied paint. or who Thomas admits that layers one of the residences contained "18 distinct pigment. Oniy of which 16 contained lead the first eighth layers Reply did not contain lead." Pet'r Br. below, at 9. As will be demonstrated these facts are of importance completely critical and render this case distinguishable from Collins.

II downplaying significant ¶ 198. In addition to case, majority facts of this mischaracterizes arguments engages of the defendants in an unnec- essary I, discussion of Article Section 9 of the Wisconsin majority regard Constitution. states that with I, import Pigment "[t]he [the Article Section argument] recovery Manufacturers' is that where has against tortfeasor, been had one all other tortfeasors necessarily Majority op., Further, are absolved." majority "[w]e states have serious concerns Pigment attempt displace with the Manufacturers' poisoning all of the blame for lead from its white lead pigment carbonate on landlords and what effect adequacy plaintiffs remedy." will have on the Majority op., seemingly ¶ 115. This is a inaccurate argument regarding characterization of the defendants' I, only Article Section and serves as a straw man for open majority to knock down and the door its to reading expansive I, of Article Section 9. the Collins court Part of the rationale of liability adopting of market share

for its variant remedy plaintiff a absent would be left without that the liability. theory Collins, 116 See Wis. some collective contrary case, to the 2d The defendants in this at 182. argue majority's I, characterization, do not that Article liability. they Rather, them from Section 9 absolves 'Right Remedy' "[t]he argue to Clause Wisconsin Require Extension Collins." Constitution Does Not added). (emphasis Resp't at 34 Br. Collins I, analysis in § 9 was material to the

Article Therese Collins only the Court concluded that because remedy injuries, her a at law for was entitled to have no existing law modified she would unless were present against anyone. This case does not remedy law, existing comparable justification modifying for injuries remedy against a his because Thomas had for the landlords. added). Resp. (emphasis do Nowhere Br. at 36 argue provision "ais that this constitutional defendants recovery right plaintiffs to vehicle to defeat simply wrongs some recov- one because committed Majority op., already against ery had another." has been ¶ simply that be- defendants contend 200. The against remedy plaintiff has had this case

cause the concerning I, landlords, Article Collins' rationale compa- apply, thus, there is no does not Section 9 remedy justification to fashion for this court rable argue do not The defendants allow Thomas to recover. liability they from because should be "absolved" They merely from his Thomas has recovered landlords. recovery, the he has had such a state that because apply, rationale Collins does not and Thomas should proceed have to under the normal rules of causation Seeking judged tort law. to be under the normal tort liability hardly equates asking rules of this court provision parties use a constitutional to shield from liability. argu-

¶ 201. Rather than take the defendant's majority pattern at the value, ments face continues its rushing judgment labeling to the defendants in wrongdoers by mischaracterizing this case as their argument absurdity. doing the so, to level of In unnecessarily introduces confusion into I, our Article jurisprudence by insinuating provi- Section 9 that this requires recovery sion the court to a for fashion Thomas separate wrongs. because he has suffered two ¶ 202. Article I, Section 9 of the Wisconsin Con- provides: stitution

Every person is remedy entitled to a certain in the laws injuries, wrongs for all may or he which receive in his character; person, property, ought he to obtain justice freely, being obliged purchase it, without completely denial, promptly without and without delay, conformably to the laws. majority ignores

¶ 203. The in Aicher v. Compensation Wisconsin Fund, Patients 98, 2000 WI ¶ 43, 99, 237 2d 849, Wis. 613 N.W.2d this court recognized although possible "[i]t to mine the pronouncements Wisconsin courts evidence that § rights, I, art. 9 creates or that it authorizes courts to rightsf,]... § I., court has stated that art. 9 fashion legal rights." (citing Leroy no Roberta Jo W. v. confers (1998); W, 225, 218 2d 238, Wis. 578 N.W.2d 185 Bailey, v. Tomczak 2d 245, 262, 218 Wis. 578 N.W.2d166 (1998); v. Fund, Makos Wis. Masons Health Care 211

338 (1997)(Bradley, J., 41, 79, 2d 564 N.W.2d 662 Wis. Corp., dissenting); 2d v.Acme-Cleveland 95 Wis. Mulder added)).6 (1980)(emphasis 189-90, 290 N.W.2d 173, § only prospective applies I, when "Rather, art. existing right." remedy already litigant for an seeks right-to-remedy "[t]he clause thus words, Id. In other justice right preserves on the basis of 'to obtain (quoting Mulder, 95 Wis. 2d Id. law as it in fact exists.1" 189). at understanding 9, I, of Article Section 204. This comports provision expressed Aicher, with how state

has since time Wisconsin's been understood McCoy County, 195 Wis. In v. Kenosha hood. (1928), rejected plaintiffs this court N.W. 348 through "there is I, Article

contention that Section persons such as our state constitution secured rights parent, plaintiff plaintiff absolute infant and any causing by negligence against such one recover rejected injuries." respective Further, the contention we provision of our constitution that this of, recognition rights of, a of to gift a creation or a was wrongs injuries or to one's remedy for all a certain merely being a or character instead person, property, of laws, that, a conformably to the assurance solemn wrongs or remedy have his such should person were, recognized time its adoption, as at the injuries of law, recognized, or thereafter be by the common should recovery proceedings at or in actions law permitting as equity. in added). (emphasis

Id. at 276-77 I, 9 in of Article Section extent the discussion To the Fund, 98, 2000 WI Compensation Patients Aicher v. Wisconsin contrary to the 43, 237 2d 613 N.W.2d Wis. ¶ Collins, more recent Aicher is the provision discussion of control. case and therefore should I, 205. The court further that Article recognized

Section 9 to intended remove common-law on recovery limitations in tort: hold, argued by To as now appellants, that there is shown the desire the founders of this common- wealth, through adoption constitution, of its to away sweep all previously recog- the old doctrines and upon rights nized limitations the so-called natural of individual, as such been limitations had found in country, prior adoption, the old world and in this to its quite would indeed effect a present revolution in our rights concepts obligations of individuals to each other....

Id. at 277. In other I, to words, interpret Article Section 9 in such a manner guarantee so right recovery anytime plaintiff satisfy cannot the elements his cause action would open the door for essentially of all abolition limitations on tort recovery. Thus, I, Article Section 9 does not compel the court recovery any allow or particular case a court require traditional disregard common-law limits on recovery tort: legislative

We started off in judicial history our very awith definite attitude that particular neither this any article other any nor of our constitution had such a sweeping away of and radical departure many from principles rules, common-law many important ones of which ... were more or less denials of limitations upon general what would be within the broad and field embraced in the term proclaimed rights "natural and life, liberty, individual to security and in person, property, such, and instance, as the character" — defense of privilege absolute or conditional in slander libel; or of injury feelings alone; instances to wrongs parent child; threats; between mere in defenses prosecution; the doctrines con- malicious actions for injury actions as well tributory negligence personal .... In all the above cases as in master and servant might actually situations, injuries however severe character, organized person, property, been to have continued to refuse society long for a time and has had rights redress. recognize legal to to Id. at 278. "conformably phrase to the laws" long recognized, only "to a I,

Article Section 9 relates existing system in the several states of laws established adopting Id. In other at 277. the constitution...." phrase exists, law it rather to the as words, the refers justice by the conceived of "an than abstract McCarthy, judge Agric. Dep't 238 Wis. . ." v. . . (1941). put, Simply has this court 270, 299 N.W. 58 recognized repeatedly I, Section 9 was Article jettison to court intended to allow this never recovery anytime particu a on common-law limitations satisfy requirements. plaintiff those lar was unable Interpreting a fashion I, 9 in so broad Article Section legal system and convert render our standardless would liability system are the rules where an ad hoc into subject change every case. fully below, more discussed 208. As will be expand

invoking Collins well 9 to I, Article Section beyond unique case, of that circumstances quite "effect[ed] majority in our a revolution has obligations concepts rights present of indi- McCoy, other[,]" at 195 Wis. viduals to each many departure common- from embarked on "radical upon principles as limitations and rules" serve law plaintiffs right Id. at 278. recover in tort. HHHHHH majority ¶ 209. The the concludes that risk- theory liability adopted contribution Collins pigment be to manufacturers, should extended majority op. ¶ 3; however, there are several substantial factual distinctions this between case and Collins that application theory completely inappropri- render of this 1) longer ate. These distinctions include: a much time product alleged for frame when the to have caused injury may have been manufactured and distributed; 2) plaintiffs inability prove product the to what he 3) ingested; signature injury the lack of a associated 4) product alleged injury; with the to have caused posed defendants' lack exclusive over control the risk 5) by product; a raw material an utilized in unin- product tended fashion rather than a finished utilized 6) purpose; fungibility for its intended the lack of product alleged between variants of the to have caused injury. applying Because of these distinctions, factual Collins the facts of case results in de facto adoption rejected theory explicitly by of a Collins and unjustified unprecedented departure an from tra- principles ditional tort law of causation. unique theory

¶ 210. The Collins court created a liability plaintiffs injured who were a as result of exposure drug to the Collins, DES in útero. 2d Wis. Essentially, theory at 177. articulated Collins plaintiffs proof regard relaxed the burden of plaintiffs proceed causation; such, it allowed DES underlying they with an tort claim when could not prove particular any defendant's tortious conduct proximate injury. was the cause of their See id. at plaintiff required Instead, 193-94. to "establish by preponderance of the evidence that a defendant produced type (e.g., shape, or marketed the color, mark- characteristics) ings, of DES size, other identifiable plaintiffs However, Id. at 194.7 mother." taken an- standards it even under relaxed causation plain- required still that the nounced, Collins court reasonably drug company prove defendant tiff "that the way in to the actual have contributed some could By applying injury." Collins, 191 2d at n.10. Wis. virtually majority the case, to the facts of this Collins requirement. light In the of this essential eliminates it below, distinctions set forth sim- substantial factual ply in this case could said that the defendants cannot be injuries. reasonably to Thomas's contributed have majority requirement from Collins can "embrace" this majority op., ¶ but, n.43, end, in the wants, all prove, majority explains how Thomas can the never any interpretation the facts, that white under reasonably have manufacturers could lead carbonate By injury. applying risk-contribution contributed to his majority opinion theory case, it clear the to this that scope beyond greatly expands and its intended Collins liability manufacturers of raw in absolute for will result creating presumption by of an irrebuttable materials causation. stated that recognize

7 1 the Collins court also where plaintiffs DES prove type of the the could not what plaintiff only allege prove that ingested, plaintiff and "the need mother drug or marketed the drug company produced the defendant miscarriages preventing during pregnancy." for in DES use Co., 166, 193-94, 342 N.W.2d Lilly 116 Wis. 2d Collins v. Eli (1984). theory that However, rejected a explicitly the court also solely that the defendants liability on the fact have based would stating: do not drug "[W]e question, the manufactured liability." at Id. in itself agree that this is a sufficient basis require still it be shown explained: "We 191 n.10. As the court reasonably could have con drug company defendant injury." Id. way to the actual in some tributed plaintiffs ¶ 211. The Collins court relaxed the bur- proof identify den of because she was "unable to precise producer or marketer of the DES taken her generic mother due DES, to the status some producers pertinent number or marketers, the lack passage particu- records, Id. In time." at 177. plaintiff specifically lar, the DES could not locate particular drug ingested by manufacturer of the DES her produced generic mother because DES was form and fungible possessed chemically DES variants were pharmacists "[0]ften identical Id. formula. at 180. would prescriptions they fill DES from whatever stock on had particular specified hand, or not a whether brand was prescription." many Furthermore, Id. "as three drug companies produced hundred during or marketed DES twenty-four years DES was on the market, companies entering leaving with different the mar- throughout period," companies may ket and these kept pertinent not have been able locate the records type they produced. at to what of DES Id. unique

¶ 212. Due to this factual situation, adapt, adopt, Collins court "chose rather than theory[,]" approved by market share first the California Supreme Court in Sindell v. Laboratories, Abbott 607 (Cal. 1980). E2d 924 2 David al., G. Owen et Madden & (3d 2000) § Liability Owen 24:7, on Products at 665 ed. [hereinafter Owen].8 Madden & The Collins court slightly theory a formulated altered of market share 8 Laboratories, "The Sindell Abbott (Cal. [c. E2d 607 924 1980),] approach liability of market share has been recognized favorably jurisdictions only some for DES [but] Most cases. jurisdictions rejected cases, including have it in all those involv ing DES." 2 David G. Owen et Madden & Owen on Products al., Liability (3d 2000) 24:7, § Madden & at 661 [hereinafter ed. Co., Lilly Smith v. Eli & (citing (Ill. Owen] 560 N.E.2d 324

344 theory. liability, Collins, 116 risk-contribution called the 191 n.10. Wis. 2d at explicitly Importantly, court Collins theory

rejected of risk contribution a broader liable without held manufacturers DES would have regard during they produced product to whether exposed to it. See months the mothers were the nine theory, proposed Collins, 2d 191 This 116 Wis. at n.10. that "the Robinson, O. contended Professor Glen 'among apportioned damages plaintiffs all should be according risks that created unreasonable defendants (quot- they magnitude of the risks created.'" Id. to the ing Multiple Robinson, Tort Law: Glen O. Causation Cases, L. Rev. 755 on the DES 68 Va. Reflections (1982)). although adopting form of court, The Collins rejected theory, Professor Robinson's risk-contribution theory liability: broad theory contribution"

Although we find Robinson's "risk drug recognizes that all DES sound to the extent to the risk of in some measure contributed companies agree we do that this is basis injury, sufficient require it be shown that liability. We still itself for reasonably have contrib- company could drug defendant injury. actual way uted in some added). (emphasis words, held that it In other Collins Id. (Iowa Co., 1986); & Mulcahy Lilly v. Eli 1990); 67 N.W.2d (Ohio Co., Morton 1998); Lilly Eli & Sutowski v. 696 N.W.2d (M.D. Labs., v. Eli 1982); Ryan Abbott Fla. v. Supp. 538 F. (D.S.C. 1981)). Co., also Richard E. & See Lilly Supp. 514 F. Activity," Liability," "Alternate "Concert of Annotation, Kaye, Imposing Theory as Basis "Enterprise Liability," or Similar Liability Upon One or More Defective Uniform Manufacturers of Product, Precise in Absence of of Manufacturer of Identification 225-239, 195, Causing Injury, Unit Batch 63 A.L.R. 5th cases). (1998) (collecting 260-74

345 is not for the enough to the plaintiff prove defen- dant contributed to the creation the risk the general of the public; plaintiff must further the prove defen- dant could have the reasonably contributed to actual injury.9 214. The has majority completely disregarded of limiting language analysis Collins its of ("[T]he

Thomas's case. See majority op., 135 record the easily establishes Pigment Manufacturers' culpabil- for, at a ity minimum, to creating a risk contributing to the injury In so public."). doing, the has majority the expanded theory Collins far its beyond original intent, and its opinion is tantamount applying theory risk contribution that Collins explicitly re- jected.10

9 Collins, "Notably, in Supreme Wisconsin Court ex plained that it would not adopt theory risk contribution which solely would have imposed liability upon DES defendants' participation in the creation of the injury Hymowitz risk of . . . ." Co., (N.Y.1989) Lilly v. Eli (Mollen, 539 N.E.2d 1082 J., concurring).

10 jurisdictions Numerous courts in disagreed various have Collins, reasoning See, Smith, with the 116 2d e.g., Wis. (Ill. 1990); at Mulcahy, 67; N.E.2d 333-34 386 N.W.2d Hymowitz, 1077-78; Co., Lilly N.E.2d at Gullotta v. Eli (D. 1985) No. Civ. May 9, H-82-400 WL 502793 Conn. (rejecting Collins producer may because the actual DES not have defendant, been named [] greater defendants no have knowledge concerning identity of the manufacturer who produced ingested the DES by plaintiffs mother and [] there showing has been no of negligent conduct each defendant Co., (Mo. the plaintiff); towards Eli Lilly v. 676 S.W.2d241 Zafft (1996) 1984); 63 Am. Jur. 2d Liability Products (noting that the opportunity adopt theory the risk contribution has been on grounds theory declined that the has the potential producing injustices through delayed recoveries and inconsistent results).

¶ that its "method of The Collins court noted factually recovery apply are which could situations However, Id. are the DES cases." at 191. there similar to between this substantial factual distinctions several majority's of and Collins that make the extension case original departure from both the a drastic Collins great liability theory articulated this court of jurisdictions. weight authority See Brenner of in other (N.Y. Cyanamid Co., A.D.2d 169 v. American 263 1999) (citing following App. that have also Div. cases theory apply market to lead "refused to share cases[:]" poisoning Ass'n, v. 930 F. Lead Indus. Jefferson (E.D. (5th 1996), Supp. 1245 La. 106 F.3d Cir. 241 aff'd. (1st 1997); Santiago Co., 3 F.3d 546 v. Sherwin Williams 1993); Philadelphia City Ass'n, v. Lead Indus. Cir. (3d 1993); Philadelphia 112 v. Hous. Cir. Hurt 994 F.2d (E.D. 1992); Skipworth Supp. Pa. v. Auth., F. 515 1997)). (Pa. also, Ass'n, Indus. 690 A.2d 169 See Lead Activity," Kaye, Annotation, E. "Concert Richard Liability," Liability," "Enterprise or Similar "Alternate Liability Upon Imposing Theory One or as Basis Product, in More Defective Uniform Manufacturers of Precise Absence of Manufacturer of of Identification Causing Injury, 63 A.L.R. Batch 5th Unit or cases). (1998) (collecting risk- To invoke 269-74 factually theory distinct under case so contribution "straight application" simply from is not Collins light majority op., Collins, n.51; rather, majority following distinctions, factual substantial beyond opinion clearly of that Collins the facts extends case. major Collins first distinction between 216. The of Collins was the time frame

and this case is dramatically case. the time frame narrower than time frame be- a limited nine-month Collins involved plaintiffs conception tween when birth mother injury. Collins, took the DES that her caused Wis. plaintiff ingested 2d at 174. The knew when her mother drug product the and thus when the was sold. See id. Additionally, produced DES was 24 marketed for years. See id. at 179. contrast, 217. In a this case substan- concerns greater

tially years. frame of 80 time 75 to This time years frame runs from the the two houses at issue were year built —1900 and 1905—to the banned Wisconsin paint partici- the pated of use lead Each defendant —1980. during in the white lead carbonate market differ- periods However, ent time. of Thomas idea has no when alleged injury-causing paint may applied the have been to the interior of the two in which houses he lived from plaintiffs inability pinpoint 1990 to 1994. The to during injury causing workable timeframe paint the which applied was is further exacerbated the fact that layers paint, one the of houses contained 18 of distinct some of did which not even contain lead. products liability

¶ 218. As one learned treatise aptly greater span "The notes: the of time within which potentially injury-causing product the sold, was the less liability suited market share will be." Madden & Owen § Pennsylvania Supreme 24:7, Likewise, at factually Court, in a case, similar noted: difficulty The in applying liability market share expansive where such an relevant time period as one years hundred is at is that issue entities who could not producers have been injured paint lead which plaintiff] assuredly [the would almost be held liable. year period issue, Over one hundred at several of pigment manufacturers entered and left the lead Thus, application the market share paint market. of theory to virtually this situation would ensure that

348 be held liable would pigment certain manufacturers potential they could not have been where tortfeasorf.] added). (emphasis Skipworth, A.2d at Santiago, at First In F.3d Circuit theory liability apply in a market share refused inability part, "plaintiffs paint case, because any precision degree pinpoint the time the with applied injury-causing paint The to the house." against brought plaintiff claims an for various action virtually "manufacturer[s] marketer[s of] all, or paints in the lead used in the lead sold all, of the white Id. at 547. She 1970." United States between applied ingested alleged had she 53-year at over this of her house various times interior period. court's Id. First affirmed the district Circuit judgment summary grant defendants, to the reason- part: ing in lead not in the white of the defendants were

[Sleveral of the significant portions at all for pigment market may and therefore well between period injury- at the have market the time suppliers not been causing plaintiff's the of the paint applied was to walls course, possibility This, a substantial home. raises for only be held liable these defendants not could that caused, be they actually but also could more harm than fact, not, any harm to they in cause held liable did when at all. plaintiff

Id. at 551. Skipworth Santiago reasoning 220. The applicable I, equally in to case. noted Section As

is partici- many not in this case were of the defendants significant pants in lead market the white carbonate instance, periods to For from 1900 time only produced lead white carbonate Sherwin-Williams period years Cyanamid for a of 37 and American did not produce pigment Significantly, until after 1971. DuPont manufactured for a white carbonate total years. of seven paint ingested applied If the Thomas was 1920s,

before the several of the defendants this case possibly produced pigment could allegedly have the lead that injuries. Likewise, caused his several defen- complete paint dants have the would defenses if Tho- ingested portion applied in mas was the latter century. However, twentieth Thomas has no idea when ingested applied he was to his residences. The position are in defendants acquire no better than Thomas to Liability company this information. for a like produced allegedly offending prod- DuPont, which uct for a mere frame, fraction of relevant time can only pure conjecture speculation be based on product injury. its caused Thomas's inability identify

¶ 222. Thomas's a narrow apply theory time frame the Collins risk-contribution dispositive because without definitive time frame, prove they the defendants will be unable to did not produce injury-causing product question. Collins specifically exculpate allowed a defendant to itself proving produce subject "that it did not or market the during period plaintiff DES either the time exposed geographical DES the relevant market plaintiffs acquired area in which mother the DES." plaintiff Collins, Here, 116 Wis. 2d at 198. cannot applicable any limit the time frame to reasonable or period workable for the In essence, defendants. majority presumption creates an irrebuttable of causa- point tion case and in this extends a Collins to where every paint pigment produced manufacturer that white absolutely lead carbonate at one time or is another opportunity liable because there is realistic no for these 350 prove they make the that did not manufacturers injured plaintiff.11 product In the words that Collins, cannot demonstrate that Thomas "reasonably could have contributed manufacturers injury." way Id. at 191 n.10. The to the actual some essentially majority's opinion is so extreme that theory that Collins revives the broad risk-contribution rejected. expressly See id. 223. A second vital distinction between case prove he is that Thomas cannot Collins prerequi-

ingested One of the white carbonate.12 to the utilization of the Collins risk-contribution sites theory plaintiffs proof "that the mother took DES." was Collins, 2d This fact alone should 116 Wis. at 193. preclude cannot extension of Collins because Thomas degree of scientific cer- demonstrate to reasonable allegedly injury. tainty product caused his Thomas what suing paint manufacturers; instead, not manufacturing being raw mate- defendants are sued for 11 (noting that none of Hymowitz, See 539 at 1082 N.E.2d theories of collective jurisdictions adopted various defendants liability adopted theory wherein the for DES cases themselves, "thereby recognizing that exculpate unable to were unnecessarily con exculpation directly would preclude causation") principles tort (emphasis travene common-law added) (Mollen, J., concurring). 12 majority ma Contrary opinion, of the assertions n.4, addressed explicitly this issue was jority op., ¶ Br. at Resp'ts to this court. defendants in their submissions Further, who has not addressed this issue. 27-29. It is Thomas n.4, majority majority, op., contrary to the assertion issue, ruled on this it is regardless of whether the circuit court if it correct the circuit court's decision duty our to sustain by the circuit theory reasoning adopted and an alternate DILHR, Liberty Trucking Co. v. its supports court decision. (1973). Wis. 2d 204 N.W.2d 457 pigments, incorporated rials, white lead carbonate later paints. produced lead into paint, While some defendants also only being

those that did are sued their capacity component product. In as manufactures of this simply prove case, Thomas cannot that white lead opposed type carbonate, as to some other of white lead pigment, ingredient paint, or other leaded of caused his injuries. may prove ingested he be that he While able to paint, presented proof lead he has not sufficient to injuries summary judgment overcome that his are at- product tributable for which the defendants are being producing. sued for Ultimately, prove

¶ 224. all Thomas can that he is symptoms poisoning has of lead and that white lead types paint. carbonate was in some used white lead Although purposes conceded, defendants of their summary judgment prove motion, that Thomas "can that injured by ingestion [and] he was lead that his source ingestion paint[,]" they lead was lead never conceded that injuries Thomas's were caused white lead carbonate pigment.13 contrary, they clearly argued To the that prove ingested Thomas "cannot that he white lead pigment." carbonate and not some other form of lead Again, emphasize being I that the defendants are sued capacity producers in their of white lead carbonate simply paint. and not manufacturers The ma- jority conveniently ignores Thomas's own admissions regarding proof regard type his lack of with to the product injuries. example, that caused his For interrogatories, their second set of the defendants in- quired:

13Thus, majority simply wrong imply defendants conceded can prove injured by Thomas he was white lead carbonate. See majority op., 11 n.4. identify by for- you

State whether can chemical mula, name, composition particular type types or or carbonate) (e.g., contained pigment of lead white lead building property, other and if in the so, you identify particular type each or are able to do building lead in that or other types pigment present property. further in-

Thomas answered: "No." defendants quired: formula, you the chemical

State whether know name, type types or composition particular or carbonate) in pigment (e.g., lead white lead contained ingested Thomas claimed to have or paint Steven is you if building property, inhaled at that or other do know, pigment you of lead specify type types each ingested. claim he "No."

Thomas answered: testimony majority ¶ 225. The relies on the two Dragen, plaintiffs experts: an electron Robert microscopist analyzed paint samples who from toxicologist. residences; Mushak, and Dr. Thomas's Majority According majority, op., ¶ this 12. to the testimony create an issue of fact as to is sufficient to ingested Thomas white lead carbonate because whether Mr. analysis Dragen's no trace of sulfur or chro- found paint samples sulfate, chromate, lead mium the pigments "were the essential lead used carbonate majority Majority op., ¶ pigments lead Dr. white provided that one Lawrence White Brenner, in However, 263 A.D.2d 165. the analysis rejected in court Brenner this form of noting: expert agreed "Plaintiffs' own that white lead only approximately carbonate accounts for 80% of the pigments paints lead in all lead used for interior be- remaining tween 1926 and 1955. The 20% lead pigments paints may found interior have been manu- by litigation." factured defendants not named Id. at 171. Significantly,

¶ 229. the record reflects a that va- riety pigments painting. of leaded were used in interior These included: carbonate[,] "basic lead basic lead sulfate,. . . red lead, chromates, lead leaded zinc oxides, litharge [and] silicates, lead titanates, lead . .. ." Fur- previously painters ther, as noted, some utilized mix- paint pigment tures of that contained lead-free but dyers possible contained leaded or thinners. Thus, the

354 analyzed Dragen were Mr. in the of lead sources sulfate, or chromate. carbonate, to lead not limited Dr. that White's also conceded Dr. Mushak years only to the limited were market studies period from the time Here, the relevant 1937-1945. Thomas lived were in which houses time the paint was lead and 1905—until constructed —1900 Finally, years. 1980—roughly when banned — deposition, he pressed Dr. admitted Mushak at his any say of the lead that or not not "whether could of other form caused some Thomas was in Steven carbonate[.]" heAs than white lead other ninety-nine percent go explained: if "AllI can with is paints typical lead carbonates were basic interior eating paint.. up . interior lead Thomas shows Steven ingested say probably basic he that... I would carbonate." type that this have held courts 231. Numerous using theory process causation of elimination

of generalized a matter of law is not sufficient statistics product type of fact as to what issue of to create an analy- injury, especially plaintiffs when caused possible sources for other fails to account sis "[G]eneral injury. causation do establish statistics States, F.2d specific v. United case." Doe 1992). (7th Inc., Foods, In v. Jerome Jandrt Cir. (1999), this 531, 566-67, 597 N.W.2d 2d 227 Wis. accepted court's conclusion the circuit court theory "left" process of causation of elimination similar exposure an actual cause as the certain chemicals logic.'" wrong injury" 'simply a matter of science Rapid Inc., Similarly, Transit, in v. Smith (Mass. 1945), Supreme Judicial 754 N.E.2d 58 plaintiff had held that of Massachusetts Court ownership jury question as to a failed to create injured by relying the bus that her on the fact that the operated only defendant bus franchise on the street question: While the defendant had the sole franchise for operat- ing Street, a bus on Main Winthrop, this did not preclude private or chartered using buses from street; in question very the bus could well have been operated by one someone other than the defendant.... enough 'not mathematically [I]t is the chances proposition somewhat favor a proved; to be for ex- ample, the fact that colored automobiles made in the year current outnumber black ones would not warrant finding that an undescribed automobile of the current year black, is colored and not nor would the fact that only minority of men die of finding cancer warrant a that a particular man did not die of cancer.' The most that can he said the evidence in the instant case is that perhaps the mathematical chances somewhat favor proposition that a bus of the defendant caused the accident. added). (quoted omitted)(emphasis

Id. at 755 source Diversey Corp. Diversey Corp., In v. (Ala. 1999), So.2d 1250, the court ruled that plaintiffs [the expert] testify "because could not that a specific product [the plaintiffs] injuries, caused his testimony conjecture was mere and therefore not suffi- genuine cient to create a issue of material fact." Like- Dragen's analysis wise, here, Mr. did not find evidence merely of white lead carbonate; it excluded two other types pigments. of lead noted, As the record indicates pigments production that there were other lead painting use interior other carbonates, than sulfates, including chromates, lead silicate, lead titanates, and litharge. Furthermore, the record indicates that indi- painters dyers vidual often added leaded thinners or pigments. expert's pro- non-leaded Thomas's statistical simply to for these elimination fails account cess of paint. such, it is of lead As other alternative sources conjecture speculation or to that white contend mere ("1 injuries. "Proof Id. lead carbonate caused Thomas's injury goes could no further than to show an which alleged way, in an does not warrant the have occurred same occur, that did so where from the conclusion injury probability proof equal can attrib- with be cause."'") Ry. (quoting Co. other Southern uted to some (Ala. 1924) (quoted Dickeson, v. 100 So. 669 source omitted)). Similarly, Armstrong v. Rubber Guenther (3d 1969),

Co., held F.2d Cir. the court up percent proof made that the defendant to 80 that plaintiff in the sold store where worked tires injured was to that and was not sufficient establish plaintiff. The made the tire that harmed the defendant justification allowing "[T]here no court ruled: was probability hypothesis plaintiffs on case that so-called jury. go at be to to the latter's verdict would best guess. reasonably supported." Id. See not It could be (1996) ("A § Liability 2d Am. Jur. Products also 63 may respect proximate not causation be verdict with conjecture, speculation, theory, or sur- based on mere possible Thus, where the evidence reveals several mise. jury improper accident, it is to allow the causes of which cause guess might proximate been have added). cause.")(emphasis expert Thus, that was the fact Thomas's paint types pigment exclude two from

able to simply legally samples provided to him not sufficient the cause that white lead carbonate was establish injuries, pigments as there were other Thomas's ingredients could have used in interior injuries Dr. Thomas's and Mushak testified caused say he could not whether the found in Thomas from some of lead form other than white lead carbon- experts any ate. Thomas's did find evi- scientific dence the at that his residences contained white lead carbonate, and Thomas admitted he is himself that identify unable to white lead as of carbonate the cause injuries interroga- his his answers to the defendants' tories. plaintiff

¶ such, Collins, 236. unlike where As the identity could not the establish of the of manufacturer drug the here, her mother had taken, Thomas cannot prove identity identity the or manufacturer of product. prove injured That Thomas cannot he was by point; white lead carbonate is a trivial being capacity produc- defendants are sued in their as required proof of ers white lead carbonate. itself Collins plaintiffs subsequent injuries." "that DES caused multiple Collins, 116 2d at Wis. 193. To hold defendants they product produced plaintiff liable for a all when the identify produced specific cannot which one of them product injured thing; quite him is one it is multiple product another to hold liable defendants for a they produced plaintiff all when the cannot even estab- product injuries. lish that caused his ¶ addition, 237. In another related ex- distinction ists case between this Unlike DES, Collins. white produce "signature injury." lead carbonate does not a plaintiffs specific, DES suffered from a rare form of strongly ingestion cancer associated with maternal Collins, DES. 116 Wis. 2d at In other words, 179. "the plaintiffs' injuries uniquely single were traceable to a product^]" Randy Overcoming Parlee, S. the Identifica- Litigation: tion Burden in DES The Market Share (1982). Liability Theory, Marq. L. Rev. signature in- contrast, In there is no such injuries jury poisoning Thomas's could in lead cases. ingestion of from a result occurred variety have Brenner, 263 A.D.2d at 173 See wide sources. ("Plaintiffs injuries [the child] allege sustained system, including difficulties with central nervous his thinking, comprehension. concentration, abstract by injuries [his] caused some source could have been But lead other than lead, even a source of other than paint."). lead-based major- majority's Contrary assertion, to the injury signature

ity op. ¶¶ should 155-57, this lack of prerequisite dispositive noted, because as the second be theory risk-contribution for utilization the Collins plaintiff prove "that DES caused the had that plaintiffs subsequent

injuries." Collins, 2d at 116 Wis. simply prove In cannot that white case, Thomas opposed pigment carbonate, lead or to another lead injuries. paint, his of lead caused another source arguendo, assuming, that Thomas can Even injured by prove carbonate, other was white lead he important and this case Col- distinctions exist between Collins, does not instance, For unlike this case lins. product had the defendants a finished over which involve pur- for its intended control that was utilized exclusive sought ap- pose. FDA Collins, In the manufacturers drug directly proval to con- and marketed the of DES differing Except doses, the id. at 191. sumers. See change the of manufacture not between time DES did consumption. had manufacturers ex- such, As the and product posed to the their control over the risk clusive paint "differing public. lead formulae of contrast, In the damage paint bearing lead on much has a direct how Skipworth, product would cause." manufacturer's noted: As Brenner court A.2d at 173. the white did [T]he manufacturers of lead carbonate have the paint exclusive control of risk. The manufac- turers, pigment manufactures, than rather pigments decided which to use and in what quantities. addition, In owners and of had landlords residences control of posed by paint, some the risk lead-based which becomes hazardous when it and peels flakes ingested is then or the dust inhaled. Owners landlords proper could control such risk mainte- Furthermore, nance property. of their manufacturers product ingested DES intended that by preg- their be contrast, nant In prevent miscarriages. women white paint lead carbonate or is not lead-based intended for ingestion obviously was not marketed for such a use.

Brenner, 263 A.D.2d at 172-73. plaintiff suing

¶ 241. The here is the manufactur- ingredient product ers of an in a finished that caused injury because was not utilized for its intended purpose. Collins, In made, the manufacturers mar- product keted, and sold final consumer and product. thus had control over end White lead carbonate manufacturers did not also manufacture paint no had control over how much their pigment incorporated product into final purposes. whether it would be used for residential Paint regard made manufacturers the ultimate decision types, combinations, and amounts to use Any product. given formulation their final painter unique way mixing paints depending had a purpose paint on the for which the he was to used. Further, none of these individuals could have controlled ingested paint chips. whether a child The raw material suppliers, therefore, did not have exclusive control over product allegedly injured the risk of the Thomas; theory clearly fall such, case does not within this originally in Collins. formulated of risk contribution significant ¶ 242. Yet another distinction between DES, white lead case Collins is that unlike this and majority, fungible. by As noted carbonate is justification majority op., important ¶ for 138, an theory adopting was that "DES the risk-contribution part, produced 'generic' ain form." was, for the most Collins, Furthermore, "DES was Wis. 2d at chemically fungible drug produced with a identical virtually impossible for the such, Id. As it was formula." pro- plaintiff which DES manufacturer to determine ingested. This that her mother See id. duced commonality DES among important because DES forms was equally shared that all DES manufacturers it assured drug. injury posed responsibility for the risk of previously, defendants 243. As described overwhelmingly that lead case demonstrated have generic, paints pigments anything but fun- were chemically briefly pig- gible, restate, identical. To utilized different formulas ment manufacturers varied terms of chemical lead carbonate that white hiding particle composition, content, size, product producers, power. the lead Further, the end types paint and con- manufacturers, utilized different paint in different of white lead carbonate centrations upon purpose depending mixtures, the brand and applied. words, In to be other for which the was single, white lead identical formulation of there was no different These different formulas contained carbonate. toxicity. lead, hence, amounts of different levels provide Thus, if Thomas could scien- even ingested a white lead carbonate evidence that he tific among presented pigment, risk no uniform the different white lead carbonate. As varieties of they concentrations, different lead formulas contained Obviously, posed different risks harm. a mixture with high posed greater lead concentration a risk than a mixture with a lead low concentration. recognized impor-

¶ 245. The Brenner court tance of rejected distinction from DES cases when it liability against

market share an action manufacturers of white lead carbonate:

All DES manufactured had an identical chemical com- contrast, position. paint fungible In not lead-based product; varying it contains lead pigments, amounts of including white lead Arguably, carbonate. white lead carbonate used as a raw material in some lead-based paint However, did differ between manufacturers. paint differing manufacturers used amounts of white carbonate, lead or some other lead their pigment, paints. paint Some lead-based pig- contained 10% lead ment, toxic, other paint containing while was more much lead pigment. only as 50% Not did the amount of pigment vary, so type pigment but did Thus, DES, used. unlike the finished product that was here, i.e., paint, used consumers lead-based was not fungible. Skipworth,

Brenner, 263 A.D.2d at 172. See also (noting at A.2d that unlike DES, which was "manu- according pre- factured to an identical formula and undisputed an harm[,] sented identical risk of ... it is pigments that lead had different chemical formulations, contained different amounts of lead, differed in potential toxicity"). Because neither white lead carbon- pigments ate nor the lead-based into which these incorporated generic fungible, were were it would be inappropriate apply the Collins risk-contribution theory equally here, as the defendants did not share responsibility posed by for the risk white lead carbon- drug companies ate, contrast to the that manufac- tured and marketed DES. majority drastically lowers the thresh- The by concluding fungibility in Collins articulated

old fungible. are white lead carbonate that all forms of majority recognizes was made that lead carbonate white formulas, chemical while DES was from three different only Majority op., ¶ Nevertheless, one. 139. made from fungibility require majority does not concludes that majority identity. for the Id. The stresses that chemical purposes fungibility, it the "commondenominator in is major- ¶ Id., The counts: lead." the formulas that ity goes formulas for both DES and on state that "the are a on the same sense the white lead carbonate inherently footing being Id. There is hazardous." any simply of the cases from other no basis Collins jurisdictions, liability, applying market for estab- share lishing fungibility. low for such a threshold

¶ on a "com- misconceived focus 247. With this "inherently denominator," and an hazardous" for- mon drastically expanded majority the in- mula, the has majority's reasoning parameters of Collins. tended virtually fungibility clearly is requirement, flawed and eliminates products containing finished a all as now fungible. are As Sherwin- raw material common majority's rationale, vic- under the indicates, Williams identify gun shooting a manufac- of a who cannot tims injured by companies, person all a sue steel turer could producers of sodium a cleaner could sue all drain injured hydroxide, started in fire and one who is producers of could sue all sulfur. matches majority's Thus, rationale, white under the fungible with other be considered lead carbonate could fishing poles, pigment, lead sinkers for forms of pencils, Similarly, majority's pipes. under the or lead they fungible types all are because rationale, all tires contain If all rubber. is required is "common denominator," then a could plaintiff sue the manufactur- ers of all these products they all, because are under majority's rationale, for the "fungible" of Col- purposes lins, as all contain a common they offending ingredient. 249. The majority cites a California asbestos case, Wheeler v. Raybestos-Manhattan, Cal. 2d Rptr. (Cal. 1992), Ct. for App. of its conclusion support the common denominator is what matters pur- poses fungibility. However, case clearly Wheeler minority view: authority [O]ther finds market liability share inappro priate substance, asbestos, where the such as is not fungible DES, and widely varying ranges as was had toxicity, depending upon its form Nonfungibil and use. ity among between and types the several of asbestos generally precluded has application of market share liability to claims for personal injury, asbestos-related although recognized California courts have that an exception might exist asbestos-containing brake pad Wheeler, litigation. 11 Cal. 2d Thus, Rptr. 109.] \See evaluating courts claims injury asbestos-related have of declined to liability extend market share because while "all the products important asbestos shared an char of acteristic in they all contained fibers,... asbestos they possessed divergent characteristics, also such as the specific type incorporated asbestos into the of fiber product; the physical properties the product itself; and of the percentage product." asbestos used the of Madden & 24:7, § Owen at 662-63 (quoting Mullen v. (Cal. Indus., Armstrong Inc., World 32, 246 Cal. Rptr. 36 1988)) (footnotes added).14 Ct. App. omitted)(emphasis 14 24:7, n.6, § at 662 & for a list of cases See Madden Owen precluding application liability of market share for asbestos- Furthermore, has overstated majority correctly As stated North by of Wheeler. holding Court: Dakota Supreme prod- recognized that non-identical

Although Wheeler liability they if may give rise market share ucts single type a of roughly quantities of equivalent contain fiber, hold that all the court did not asbestos- asbestos in all cases will be containing products friction brake fact, indi- fungible. In the court in Wheeler considered carry nearly a equivalent must products cated that such liability. Further- support of market share risk harm more, upon of a nonsuit based an reversal Wheeler was plaintiff. court stressed its proof offer made proven holding plaintiffs narrow: the had case, merely being but of a market share were elements Clearly, prove it. Wheeler opportunity afforded fungibility equivalent evidence of does not serve as in this case. products of harm of the risks (N.D. 1999) (in 182, 190 603 N.W.2d Black v. Abex Corp., omitted). ternal citations its reaffirmed the Wheeler court Notably, 32, in Mullen, which Rptr. Cal. decision

prior share theory the market apply court refused to manufac- range of asbestos liability products to wide Stevens v. Owens- nonfungibility: related cases because (Cal. App. 2d Ct. Corning Corp., Rptr. 57 Cal. Fiberglas 1996) v. Corp. "diversity products"); Celotex (noting asbestos 1985) (Fla. (collecting cases Copeland, So. 2d 538-39 cases); v. theory Gaulding reject in asbestos market share (Tex. 1988) (concluding that App. Corp., Celotex 748 S.W.2d 627 theories, not available liability, among other is market share Starling v. Coast injury; Seaboard Texas for an asbestos-related (S.D. 1982); Co., Vigiolto v. Johns Supp 183 Ga. Ry. Line 533 F. 1986) (W.D. (holding that Pa. Corp., Supp. Manville 643 F. on in an action based liability appropriate is not market share injury). an asbestos-related "[w]e

tured the defendants because noted there that single product asbestos, DES, unlike not a but merely generic ingredient variety a name an in a of products posed each of which a different of harm." risk Rptr. Wheeler, 11 Cal. 2d at 111. The Wheeler court distinguished pads Mullen because the brake at issue comprised "single type were a fiber,... of asbestos by weight pads and the amount of asbestos in the varied range." within limited Id. at 111. single

¶ 252. In case, there nowas type white lead carbonate. Each formulation had different compositions, chemical contained different amounts of potential toxicity. lead, and differed Furthermore, amount white lead carbonate in a contained particular greatly varied from mixture to such, mixture. As Mullen, rationale of fo- which general, analogous cused on asbestos in is much more Wheeler, this case than the rationale of which focused particular on a fiber asbestos in limited concentration range. Supreme Black, In the North Dakota Court

rejected liability against market share a in suit manu- asbestos-containing products precisely facturers of be- products, although containing cause all asbestos, present equivalent did not Black, risks of harm. liability premised upon N.W.2dat 189. "Market share (or produced fact that defendants have identical identical) virtually products carry defective which added). equivalent (emphasis risks harm." Id. court further stated: underlying

The rationale liability, market share Sindell, developed in is that did not matter which product manufacturer's plaintiffs mother actually ingested; chemically because all identical, DES was same Thus, any harm would have occurred. individual the identi- would have caused product manufacturer's fortuity any through mere that injury, and it was cal product did not actual produce one manufacturer ingested. noted that at 190. The court then asbestos-

Id. pro- containing products" the defendants "friction seventy-five per- and contained between seven duced "It obvious that a Id. seems cent asbestos fibers. product seventy-five percent asbestos which contains greater risk harm than one which would create only percent." Thus, the Id. at 191. seven contains theory of the market share Black court held that products liability apply did not the defendants' because carry equivalent degrees of risk and were not did not fungible. Id. Similarly, International in Sanderson v. Fragrances, Supp Inc., 950 F.

Flavors and (C.D. 1996), perfumes the court held that various Cal. fungible goods. colognes court "Just as the were not appeal not the held asbestos was in Mullen products fragrance equivalent[]' 'simple DES, the injuries plaintiff her caused are contends which fungible goods from an identical formula made equated the DES at issue cannot be with therefore only that "the The court further observed Sindell." Id. by Lilly Eli manufactured difference between DES by the return address manufactured Abbott was DES phar- package the manufacturer to on the sent macy. here." Id. The district court is not the case Such applied rationale of to the facts before then Mullen prod- fragrance and concluded that the "defendants' (at aldehydes, allegedly) but each contain all least ucts aldehydes, types with different contains different physical properties, of concentration. at different levels contrary apply the therefore be to Mullen It would theory market-share case." Id. at 992. Further- analysis more, in its the court determined that Wheeler "highly distinguishable" appli- and, therefore, not cable. Id. at 992 n.10. Biological, Likewise, Doe v. Cutter 852 F. (D.

Supp 1994), 909, 913 Idaho the court determined clotting agent, fungible VIII, a Factor was not a drug. by As stated the court: DES,

Unlike generic, fungible Factor VIII is drug. Each processor prepares VIII its Factor concen- trate by proprietary processes its own using plasma collected from its own sources. Each firm's Factor VIII distinguishable clearly by name, concentrate is brand package color, number, lot and number units of vial; VIII per Factor each firm's Factor VIII concentrate separately Drug licensed the Food and Adminis- tration. There is no evidence that all Factor VIII products caused or equally capable were of causing HIV Thus, infection. the posed by risk brands different Factor VIII is not identical. (quoting Biological, Id. Smith v. Inc., Cutter 823 P.2d (Haw. 1991) (Moon, concurring part, 717, J., dissenting part)). apply Thus, the court refused to theory liability against provid the market share ers of Factor VIII. Unfortunately

¶ 256. for the defendants in this majority case, is not obvious to the that the varieties paint containing differing of lead concentrations compositions of white lead carbonate did not create equivalent risks of Furthermore, harm. a defendant DuPont, like which manufactured and marketed white only years, lead carbonate for seven did not create the same risk of harm as a defendant like Sherwin- Williams, which manufactured and marketed white years. lead carbonate for 37 signifi- By downplaying ignoring focusing solely distinctions of these factual cance allowing policy an in Collins of articulated on majority injured plaintiff casts a wide net recover, and have dras- numerous defendants ensnare will doing consequences in Wisconsin. for firms business tic theory applying the Collins risk-contribution Further, deficiencies in the one—where the such as this to case beyond inability proof plaintiffs mere are above generic, identify precise of a manufacturer pro- chemically fungible product identifiable, that was pro- during have a a limited time frame —will duced major- liability products law. Under the effect on found encouraged ity opinion, plaintiffs to sue entire will be defendant that manu- rather than locate the industries injury. product indi- An that caused the factured the ability to contest will almost no vidual defendant have Furthermore, of a causation "elimination causation. every [will] requirement in- manufacturer an render only products, of all but also of its own surer by generically products its com- manufactured similar petitors." Indus., Inc., 572 N.E.2d v. UNR Wehmeier (Ill. 1991) (quoting App. v. Blackston Shook 320, Ct. 336 (11th Co., 1480, F.2d & Fletcher Insulation 1985)). Cir. Supreme articulated Illinois Court 258. The rejected all variants when it too

similar concerns liability Smith, 560 N.E.2d 324. market share develop to new past in the been hesitant We have not however, we decline to do in this instance concepts; tort theory. proposed in the of the infirmities so because a Furthermore, great a deviation from tort this is too function found to serve a vital principle which we have fact, market law, especially when in the causation liability concept application share is a flawed and its likely only to will be a class narrow of defendants. Id. at 344-45. consequences example

¶ 259. For an of the harsh majority's decision, one need look no further than Badger Mining Corp., to the recent decision Haase v. WI 97, Haase, 2d 274 Wis. 682 N.W.2d389. In plaintiff provided sued the manufacturer that silica foundry plaintiff sand Id., where the worked. expansion ¶¶ 3-5. With the of the Collins risk- theory plaintiffs, contribution case, the facts of this Haase, such as those in can now sue entire raw industry place material on burden each indi disprove presumptive liability. vidual defendant to their party Plaintiffs will have no incentive to locate the actually injury. majority's expan caused the drastic theory clearly sion of the risk-contribution distorts the original rationale behind Collins decision and will consequences have drastic for business in this state. represented departure 260. Collins a from tra- principles justified ditional of causation that was under unique facts in that above, case. As detailed other having plaintiff identify than cannot who which product injured him, manufacturer's this matter and Collins have little in common. As noted the Brenner inability "[t]he identify court, 263 A.D.2d at period apply narrow time in which to the market share theory, fungible product, the absence of a and the signature injury among absence of a are the reasons apply that other courts have refused to the market theory poisoning share in lead cases." Furthermore, the resounding weight authority support does not a such change prin- fundamental from conventional tort law ciples, any context outside of the DES scenario. rejected liability theory has been Indeed, "market share liability including products types of cases in most other involving implants, vaccines, lead asbestos, breast those paint, § gasoline." at 24:7, & Owen

and Madden cases). (collecting entirely

¶ this case is 261. As it is clear that majority's factually Collins, the decision distinct from applica- represents expansion not a mere a radical scope By expanding of Collins to this of Collins. the tion essentially adopted majority a version case, the has rejected theory explicitly in Collins. risk-contribution unjustified, majority's opinion the is words, In other unprecedented, and unwise.

IV opinion disregards majority sum, In pertinent case, our Article facts misconstrues ignores jurisprudence, the numerous I, Section and Collins. In so between this case factual distinctions majority doing, rules of relaxes the traditional accomplished beyond in Collins what was causation any possibility in this that the defendants eliminates present Thus, defense. its decision able to a case will be liability for the no less than absolute amounts to incorpo- later material that is manufacturers of raw injury. product This that causes into finished rated just, grounded law. fair, nor is neither result by saddened understandable to feel While is tragic injuries plaintiff, what is also suffered the entire lead to condemn its rush ignores industry, majority one of the most basic justice system individual determina- tenets our —an wrongdoing. tion of to state that Justice I am authorized joins this dissent. T. PROSSER DAVID (dissenting). PROSSER, T. J. DAVID Four years ago City against Milwaukee filed suit NL Industries, Dallas, Texas, Inc. of and Mautz Paint Company alleging companies Madison, that the were responsible creating public City's for a nuisance in the by housing marketing selling old stock substantial quantities pigments paint. of lead lead-based and/or City App Indus., Inc., Milwaukee v. 7, NL 2005 WI ¶¶ 2-4, 278 Wis. 2d N.W.2d888. City pay

¶ 265. The asked the two defendants to program, the costs with associated its lead abatement which estimated to be more than one hundred million City sought specifically, ¶¶ Id., dollars. 3, 5. More (1) compensatory equitable relief for abatement (2) the toxic lead hazards in homes; Milwaukee restitu- expended by City tion for amounts to abate the toxic (3) punitive lead hazards in damages. homes; Milwaukee City's ¶ 266. The circuit court dismissed claim public concluding City nuisance, that the could not particular show these defendants caused their lead- paint applied any specific buildings based be alleged public Id., ¶¶ included in the nuisance. 1,14-19. appeals The court of reversed. The matter is now await- ing by present litigation. a decision this court in the long-time In the meantime, Paint, Mautz corporation Wisconsin founded in sold its busi- ness to Ohio-based Sherwin-Williams in November company pressure brought 2001. The cited financial on paint Milwaukee's lead lawsuit. All Madison-based manufacturing Mautz has ceased. City

¶ 268. The of Milwaukee's lead lawsuit provides with a us to the window future. When the every person court case, issues its decision in this under age paint injury of 20 who claims in Wiscon- Every in our courts. of action have a cause sin will injury paint person a lead who has in the United States company from a come Wisconsin-based that could have periods in own state the limitations his and can survive Every municipality may in a of action. have cause program country can a has lead abatement that argument plausible that Wisconsin-made make a paint injured may its residents lead carbonate or white City redress in this of Milwaukee and seek follow paint mecca for lead suits. will be the state. Wisconsin products liability repose here, on no of There is statute remedy paint for lead has now created and this court sweeping poisoning that it he and draconian will so companies nearly impossible paint them- defend for frankly, plaintiffs to lose. or, for selves majority opinion ¶ creates Because the 269. equal process law, due of of action that violates cause every principle nearly of protection law, and of the public policy cases, I in tort dissent. sound

FACTUAL BACKGROUND in ¶ Thomas, now lived several 270. Steven years. during These his formative houses Milwaukee (2) (1) Street; 2654 37th 2652 North houses include (3) The Street; North 37th Street. 4736 North 25th in 1905. 37th Street built first house at North 25th Street was built The house at 2654 North second ingested paint that he 271. Thomas claims owner of the first child. The a small at all three houses as The of the $62,652. for owners with him house settled The $261,520. for insurer settled second house prevailed on a motion house of the third owner summary judgment. testing paint chips expert did Plaintiffs many expert as as found houses.

at the first two layers paint chips layers on at the first house and paint chips Many layers on at the second house. of these contained white lead carbonate. purposes

¶ 273. For discussion, of this we must accept ingested true Thomas white lead carbon- paint chips ate from all dust from three houses. However, Thomas admits that he will be able prove companies among any, which the defendants, if paint supplied containing any white lead carbonate to plaintiff prove the three houses. The will be unable say, ConAgra Grocery that, Products, or one of its supplied subsidiaries, ever white lead carbonate up ended at or, 2652 North if Street, did, 3.7th supplied whether the white lead carbonate it caused injury to Thomas. gist majority opinion

¶ 274. The of this is to create theory liability of tort manufacturers that any plaintiff provide proof. obviates need for a to such

ANALYSIS Normally, ¶ proceeded negli- 275. if Thomas on a gence theory, prove duty, he would have to four elements: damages. proceeded breach, causation, and If he on a liability products theory, prove strict he would have to product five elements: that the was defective and unrea- sonably dangerous; product that the was defective when possession it left the or control of the seller; that the (sub- product in the was a cause defect stantial manufacturer's factor) plaintiffs injury; the that the seller was engaged selling products; in the business of such product expected that the was one which the seller to change. and did reach the consumer without substantial Assessing ¶ apparent 276. elements, these it is existing that Thomas could not succeed under theories negligence products liability. or strict Indeed, he inability acknowledges as much. Thomas's admitted specific product prove fatal to causation would be his claim.

¶ not fit the law. So, in this case do 277. facts majority simply applying law, settled instead changes to fit the facts. the law negligence action, cause of As to Thomas's 278. majority as follows: Thomas modifies elements (1) ingested prove carbonate; that he white must (2) injuries; his caused that the white lead carbonate (3) pro- "Pigment defendants Manufacturer" type white lead carbonate he duced or marketed the (4) Pigment ingested; and Manufacturer's conduct marketing producing or the white lead carbonate recognized duty legally of a constituted a breach Majority op., ¶ Thomas. 161. products liability strict As to Thomas's majority the elements action, the has modified

cause of only prove that the white Thomas need extent that (2) (1) unreasonably defective; was lead carbonate (3) product] dangerous; was a cause "that the defective (4) damages;" injuries that the manufac- of Thomas's selling prod- engaged such in the business of turer (5) product was one which seller ucts; that the expected did reach the consumer without substan- to and Majority change. op., ¶ tial majority ¶ the link Thus, has broken the product. the Under manufacturer between only prove general majority's a that rule, Thomas need injury; specific product type a not that caused his of injury. product A manufac- caused his manufacturer's specific virtually powerless that its to show turer is injury. product the To mount successful did not cause disprove have to would defense, manufacturer admittedly prove plaintiff presumed cannot link that the and need not It prove. goes saying without that DNA does testing apply paint chips not to or dust. majority's 281. The of modification the well- ¶ of settled negligence elements and strict liabil- products ity violates the defendants' constitutional rights to due process equal protection under the Fourteenth Amendment to the United States Constitution. This is deprivation majority's underscored departure from longstanding of principles liability. tort

DUE PROCESS1 282. The Fourteenth Amendment in provides that no [shall] "State part deprive life, any person liberty, or without property, process law; due nor deny any to person jurisdiction within its the equal protection the laws." reaching Before the merits of the defendants' process due

arguments, necessary majority's conclusory address contention that "[t]hese ripe." constitutional are not issues Majority op., inquiry "[T]he ripeness focuses on whether injury yet an likely has occurred is sufficiently U.S.A., happen justify judicial intervention." Chevron Inc. v. Co., (5th Traillour Oil 1993). 987 F.2d 1153-54 Cir. I difficulty have no concluding the constitutional ripe. issues are The result the majority reaches this case has immediate and dire consequences defendants, impacts other awaiting cases result this case. defendants,

For the majority opinion they means that effectively will be denied the to rely chance on ordinary tort theory plaintiffs to defeat claim. Parties other cases already filed yet and in cases to be filed will also note the majority's receptiveness nature, to claims of this may and we stampede see a to file lead paint Congress suits before or the Legislature Wisconsin can react. These issues should ad- be dressed now. The Court held Supreme repeatedly has ¶ " been, and can perhaps has never process' '[d]ue However, both this court be,

never defined."2 precisely have characterized and federal courts repeatedly "fair The core of due as process play."3 immutable are fundamen- majority opinion laid out in the precepts of fair and at odds with traditional notions tally unfair play.4 constitutional arguments defendants'

¶ of violations substantive alleging could be construed as 2See, Dep't County, Durham e.g., Lassiter v. Servs. of of Soc. (1981). N.C., 18, 452 24 U.S. 3 See, Lewis, 833, v. 523 U.S. 847 e.g., County Sacramento Green, 14, (1980); (1998); 446 Tammie Carlson v. U.S. 46 n.12 T.R., 14, 217, 61, 2003 WI 262 Wis. 2d 663 J.C. v. Robert WERC, 734; 82 Wis. 2d Layton Design Art and v. N.W.2d Sch. of (1978). 363, 324, 218 262 N.W.2d 4 that, process enough generally, It is true claims of due objections operation to the statutes. violations are raised Inc., See, v. U.S. 189 e.g., Lujan Sprinklers, G&G Fire 532 Co., 82, 27, (2001); Safety Mfg. v. Positive WI Matthies sense, 720, In that "State" actor 2d 628 N.W.2d 842. 244 Wis. courts, too, bow this legislature. issue is the state Yet must at Ownbey Morgan, v. 256 U.S. constitutional mandate. (The (1921) action, whether process due clause "restrains state executive, judicial, or within that are consis legislative, bounds liberty private with the fundamentals of individual tent liberty including right to be heard where property, added). judicial (emphasis proceedings.") at stake in property is higher court free to determine that lower Accordingly, is rights of one or more of process decision violated the due court's Hill, See, v. e.g., Trust & Sav. Co. the parties. Brinkerhoff-Faris (1930) on due (reversing state court's decision 281 U.S. grounds noting for the state courts to "while process adjective as law the determine the well as substantive must, doing, State, parties process accord the due they so law."). process procedural process. due or due Substantive due " 'protects against governmental

process actions that arbitrary "regardless wrong are and of the fairness of "5 procedures implement the used them."' Procedural process due "addresses the fairness of the manner in governmental implemented."6 which majority opinion action The is the

violates defendants' constitutional rights under both theories.

A. Procedural Due Process they

¶ 285. The defendants contend that will be opportunity present denied the a defense under theory: prod- well-settled tort the defense that their plaintiffs injury. argument not ucts did cause the This aggressive overreaching. simply is It demands right implicating heard, the procedures" by be the "fairness liability

which determined. process ¶ 286. What is due these defendants? " process procedural 'Due is flexible and calls for such "7 protections particular as the situation demands.' process particu- ¶ 287. To determine the due in a Supreme situation, lar Court has often recited a (1) balancing three-factor test.8 The Court balances private interest that will be affected the official (2) deprivation action; the risk of erroneous of such through procedures probable interest used, and the any, procedural value, if of additional or substitute 5 Barbara B. v. Dorian H., WI 6, n.14, 277 2005 18 Wis. 2d (citation omitted). 378, 690 N.W.2d 849 6 Id. 7 Homar, v. (1997) Gilbert (citation 924, U.S. 520 930 omitted). 8 Wilkinson v. Austin, _ U.S. _, 2384, 125 S. Ct. Homar, (2005); 520 U.S. at 931-32. (3) government's safeguards; interest governmental including the function involved matter, any that additional fiscal or administrative burdens procedural requirements would entail.9 or substitute tripartite least far as dates back at This formulation (1976). Eldridge, v. 424 U.S. Mathews up majority opinion an 288. The sets irrebut- presumption plaintiff if the can show of causation: able defendant manufactured white carbonate that the and that some form sometime between plaintiffs injury, lead carbonate caused white has no will held liable. defendant defendant opportunity be particular product not did to show that its plaintiffs injury.10 It is faced with no-fault the cause liability. determining inequity, ¶ the factor Given the risk of test is the second factor: in the Mathews major- procedure liability in the the inherent erroneous today. completely tips ity implements the It Mathews balance. majority by the

¶ of error created 290. The risk prove opinion Thomas cannot is enormous. Because injured layers paint multiple him, the of which they produce, or show that did defendants cannot produced, precisely, not have white more could layer. carbonate that

9Id.

10 occasions, Supreme United States Court several On grounds that the statutes on the has struck down statutes due violation presumption an created irrebutable LaFleur, 414 See, v. e.g., Bd. Cleveland process clause. of Educ. Agriculture Murry, v. Dep't 413 United States (1974); U.S. 632 Kline, v. (1973); Stanley v. 412 441 Vlandis (1973); U.S. U.S. 508 (1971). Burson, Illinois, (1972); Bell v. 402 U.S. 535 U.S. plaintiff The need not show the evidence normally that critical in is most cases: that tort product injured plaintiff. plaintiff defendant's produced need not show that a defendant white lead during particular span (except carbonate a time a time (1900-1978) period quarters more than three of a century), produced type or that the a defendant of white with an identical carbonate chemical formula to injured product plaintiff, the particular or even a products injured defendant's could have plaintiff. though many

¶ 292. This is true even produced only defendants white lead carbonate for a 78-year period during small fraction of the which containing ap- white lead carbonate could have been plied to the walls of Thomas's three residences. illustrate, 293. To DuPont manufactured white (1917-24). years only lead carbonate for seven SCM years manufactured white lead carbonate (1924-1958). Sherwin-Williams manufactured white (1910-47). years lead carbonate for 37 Under the ma- jority just opinion, plaintiff may easily a recover from (which product such defendant as DuPont made the years) produced for seven as another defendant that years. rhyme for eleven times seven There no reason to such result. example, way DuPont, would have no

prove it did that the manufacture white lead injured plaintiff, plain- carbonate that the because the prove tiff could not the when white lead he carbonate ingested paint, paint applied in was used when that was multiple multiple layers to paint residences, his or which of (or therefrom) alleg-

in three the residences dust edly injured shortcomings majority's him. These in the reasoning why very illustrate this case is different from

380 Co., 37 Eli 166, 2d 342 N.W.2d Lilly v. 116 Wis. Collins to a nine- could point in which the (1984), plaintiff injured, have she could been month which span could iden- similarly plaintiffs situated many which DES pills characteristics about the tify distinguishing took.11 they no are the reason that shortcomings 295. These market share form of adopted any court has ever

other reasons policy cases. "The public liability not control where market share do the use of favoring cause defendants did not there is a possibility are the shortcomings harm in question."12 "[t]he advise that learned commentators reason that time within which potentially greater span market less suited sold, injury-causing product are the reason They probably share will be."13 liability 11 Co., 166, 198, 342 2d Lilly v. Eli 116 Wis. In Collins defendants (1984), noted that innocent the court N.W.2d 37 products by showing that their themselves exculpate could respect mother." With plaintiffs reached the "could not have showing by particular DES, could have been done color pills particular DES produce manufacturer did not broad, majority offers no because its net is so style. Perhaps guidance here. such

12 Co., 186, Supp. F. 193 782 Santiago v. Sherwin-Williams 1992). (D. v. Lead Indus. City Philadelphia See also Mass. (3d Inc., 112, 1993); v. Lead Ass'n, Lewis 994 F.2d Cir. 2003) (Ill. Inc., App. Ass'n, 2d Ct. 793 N.E. Indus. essentially particu make theory would (Accepting plaintiffs' industry," product and a of their "insurers lar defendants anyone who to extend to "duty not so broad as manufacturer's supplied injured by product a like kind might be uses or Ass'n, Inc., 690 A.2d another"); v. Lead Indus. Skipworth 1997). (Pa. 172-73 Madden, al., & Owen, et Madden M. Stuart 2 David G. (2000). § Liability 24:7 at 663 Products

Owen on

why, despite calling hope" Wisconsin the "last for lead paint plaintiffs, prominent plain- even a member of the just happening," tiffs' bar "I commented, don't see it plaintiffs when asked about the chance of success this case.14

¶ rejecting 296. As another court stated in an "application theory claim, identical of the market share virtually to this situation would ensure that certain pigment they manufacturers would be held liable where possibly potential could not have been a tortfeasor."15 majority ¶ opinion very 297. The raises the real possibility that innocent defendants will be held liable wrongs they for did not commit. To avoid the risk of spe- verdicts, erroneous Thomas should have to show product cific causation and the defendants should be products allowed a fair chance to show that their did injure principle Thomas. Neither is consistent with majority opinion. B. Substantive Due Process majority's complete disregard long- 298. The for standing principles liability certainly of tort "shocks the violating process.16 conscience," thus substantive due majority opinion imposes In effect, the ex post liability facto long on the defendants for activities past. regard, majority opinion In directly

14Molly McDonough, Risky Business: Wisconsin Court's Analysis May Risk Be Last Hope Lead Paint Plaintiffs, ABA (Feb. 2005). 14, Journal 15 Skipworth Ass'n, Inc., v. Lead Indus. 690 A.2d (Pa. 1997) added). (emphasis 16See, e.g., Martinez, Chavez v. (2003) 538 U.S. (Stevens, J., (collect concurring in part and dissenting in part) cases). ing Anthony expressed

contrary principles in Justice to the Enterprises Apfel, Kennedy's in Eastern v. concurrence (1998). 524 U.S. 498 petitioner, corporation Apfel, for-

¶ In 300. mining, challenged merly engaged in the Coal coal Industry Health Benefit Act of 1992 on Retiree process takings grounds that it violated the due retroactively by imposing clauses of the constitution liability corporation's activities between based on the plurality Court concluded A 1946 and 1965.17 takings clause because the law violated the disproportionate, "improperly places severe, and ex- tremely on Eastern."18 retroactive burden Kennedy arguing

¶ concurred, 301. Justice legal consequences change "If retroactive laws destroy long change closed, the can transactions very security certainty which are the reasonable Kennedy objects ownership."19 property As Justice stability "[b]oth pointed and confi- of investment out, by system are ... secured dence the constitutional leg- against process severe retroactive restrictions due Kennedy Accordingly, would have Justice islation."20 process grounds. on due held the law unconstitutional (Kennedy, concurring). J., Id. at 550 majority's statute, not a but the Here, it is liability imposes retroactive and severe decision, that long principles The closed." on "transactions based Kennedy by no forceful are less articulated Justice majority's applied decision, which here; when unerring consequence imposing retro- will have the 17 Enters, (1998). Apfel, 524 U.S. E. v.

18Id. at 538. J., (Kennedy, concurring). Id. at 548 J., (Kennedy, concurring). Id. at 549 just liability,

active is if as unconstitutional as the same legislature. action had been taken the state EQUAL PROTECTION equal protection clause "creates no rights," general substantive but embodies the rule that government "must treat like cases alike."21 The majority's rule does not "treat like cases alike." year

¶ 304. Assume for a moment that 1960, and consider two Wisconsin manufacturers. majority opinion, equally Under the each would be culpable, assuming they produced both lead-based paint. company Assume further that the first was a larger company small of a division with minimal con- only paint tacts in Wisconsin and sold a small volume of company in Wisconsin. Assume that the other in Wisconsin, based did most of its here, business and operated majority question. here for the of the time today, company

¶ 305. Assume now that the first large, profitable corporation, is still in business as a company Despite the second is defunct.22 the fact that company gone that has out of in was, business hypothetical, culpable escapes the most tortfeasor, all liability. company, The first hand, on the other will bear disproportionate liability. share This is not "treating like cases alike."

PUBLIC POLICY majority's disregard ¶ type 306. The for the play" guaranteed by process equal "fair the due 21 (1997). Quill, Vacco v. 521 U.S. class, As examples of this Company began O'Neil Duro operation in 1925 and ceased operation Similarly, in 1988. Hager began Paint operation Products in 1925 and ceased operation in 1979. Both were based Wisconsin. protection a review of the six clauses is illuminated tending policy public factors this court has identified as preclude liability negligence even when exists. (1) injury ¶ 307. The six factors are: Whether (2) negligence; remote from the Whether the is too injury wholly proportion culpability of is out of to the (3) negligent appears in tortfeasor; the retrospect Whether it extraordinary negligence that the should too (4) brought harm; have recovery about the Whether allowance place an on the would unreasonable burden (5) recovery allowance of would be tortfeasor; Whether (6) likely open way claims; and too to fraudulent recovery enter a field that Whether allowance would just stopping point.23 has no sensible or arguendo, assume, if 308. Even we were prove negligence, all Thomas could causation thus liability. weigh against attaching these factors would injury alleged First, here is too remote from the may negligence. at have The white lead carbonate issue years ago. produced much It is almost been as impossible against alleged negligence that no to defend living person can remember. injury wholly propor- Second, the out of negli- culpability. The recent

tion to the defendants' allowing gence to deteriorate of a landlord negligence greater of the manufacturer seems than used to make the of one of the raw materials century ago. perhaps half retrospect appears

¶ Third, in it too extraor- 310. brought dinary negligence the should have about allege, enough majority It for the to the harm. is not industry-wide presentation facts, of the some sort of its Stores, Inc., 250, 264-65, Miller v. Wal-Mart 219 Wis. 2d (1998). 580 N.W.2d

knowledge part paint suppliers. The on of lead plaintiff should have to show that each defendant had knowledge dangers carbonate, of the white paint. recovery place

¶ Fourth, 311. allowance would an on unreasonable burden the defendant. As stated nearly impossible alleging above, it is to defend a suit negligence years past. 50 to 100 in the if a Even during defendant had the entire insurance time it was might carbonate, involved with white lead have changed eager insurers, none of whom will now be step coverage. prove forward with How awill defendant coverage? coverage proved, if Even could be how will century pay damages? insurance 1930s 21st recovery Fifth, allowance of would too be likely open way erasing the requirement, to fraudulent In claims. majority the causation kicks out one legs supporting principles conventional of tort liability. These time-honored standards have been de- signed to ensure that meritorious claims are rewarded rejected. majority's and fraudulent claims are ac- substantially tion tilts the balance to increase possibility of fraudulent claims. principles majority opin- Sixth, in the just stopping point.

ion have no sensible or As Justice (which wholeheartedly join) points Wilcox's I dissent majority principle fungibility

out, discards the underpinning reasoning the Collins rationale. The majority opinion adapted could be to cover other majority opinion, Further, raw materials. under the plaintiffs injured option in other states have the come to our courts and sue Wisconsin raw material harm manufacturers for that occurred elsewhere. By illustrating ¶ 314. the fundamental unfairness majority opinion, pro- worked these six factors majority opinion vio- additional evidence that vide process right play," of "fair due well as lates the core protection right equal law. defendants' rejection theory by this Given near-unanimous unexpected invasion is as as it is courts, other this unwarranted.

CONCLUSION majority consequences opinion ¶ 315. The industry may staggering com- be Wisconsin home-grown Paint, merce. When Mautz Wisconsin company, suit, it was to sell out to faced a similar forced company. quickly The new owner moved an out-of-state jobs manufacturing out of state. all ¶ effects that this decision 316. The harmful majority render the could visit on Wisconsin commerce majority presumptions in the decision unwise. opinion rights defendants' of due that contradict the majority protection process equal render the deci- unconstitutional. sion foregoing respectfully I reasons, 317. For

dissent. I am authorized to state that Justice JON opinion. joins

E WILCOX notes has previously I, declined to utilize Article 9 Section to refashion common law.39 Co., 139, Penney 151-52, Wiener v. J. C. Wis. 65 2d 222 N.W.2d (statute's (1974) 149 prohibition against on class actions sellers failing for to refund I, excess interest does not violate Article 9); Co., Employers Liability Section Kerner v. Mut. Ins. 35 Wis. (1967) (worker's 391, 2d 151 N.W.2d 72 scheme compensation I, does not violate Article Section 9 as the employee's right to a remedy wrong for a is phrase "conformably modified the to laws," legislature the power regulate the has the to Racine, wrongs); remedies for Ocampo 506, v. 28 Wis. 2d (1965) 512-13, 137 (120-day N.W.2d477 of notice claim statute I, applied to minor did violate Article 9 Section as it was not unreasonable); Bank, 23, v. Brust First Nat'l 184 Wis. 198 (1924) (statute N.W. 749 that allowed defendant trial in new proper venue in wrong when action commenced county did not I, 9); Racine, violate Article 649, 652, Section Daniels v. 98 Wis. (law (1898) 74 N.W.553 that limited time for giving notice injury days to 15 and villages cities did not violate Article I, Section 9: only right "Since the of action in the at bar case by statute, given question there can be no but that the legislature had power wholly away take it by statute."); Merrimack, (1880) 567, 574-75, Flanders v. 48 Wis. 4 N.W.741 (statute that taxpayers allowed from Town of option Merrimack paying for I, void did not 9); taxes 1877 violate Article Section (1873) (statute Barden, Dodge v. 33 Wis. imposed costs as a change condition of venue after the affidavit is I, filed did not violate Article Section 9 as it compel did not party purchase justice). Co., See Farmers Mut. Auto Ins. 6 Wis. 2d Schwenkhoff v. (1959) 44, 45-47, 93 N.W.2d867 (unemancipated minor cannot negligence maintain a against action his parent or her personal injury sustained in an accident); automobile United Co., & 392, 398, States v.Klebe Die Tool Wis. 2d 92 N.W.2d868 though, disagreement, Through all all almost members submits that Amicus Trial Counsel cited the follow- contexts, have court, in various of this discussing ing proposition I, Article Section 9: juris- in our section, though great importance That right of persons to the addressed prudence, primarily justice on the and to obtain access to courts have rights are legal fact No exists. basis law

Notes

notes 12. The residences." on this evidence and a Dr. Mushak testified that based analysis, process Tho- of elimination the houses where Id. mas lived contained white lead carbonate. testimony problematic ¶ 226. Reliance on this Dragen did not "render First, for several reasons. Mr. any compounds any opinion regarding chemical kind of paints analyzed[.]" Dragen [he] Second, Mr. was any opinions to offer he able as when analyzed applied. Id. testimony highly prob- Dr. Mushak's is also supplementary lematic. Dr. Mushak's affidavit con- Dragen's analysis, cluded, based on Mr. that white lead only likely" pigment carbonate was "the Thomas ingested. following on the This conclusion was based reasoning: "the absence of detectable sulfur and chro- (0.05%) conclusively any mium rules out use of lead pigments sulfate or lead chromate as lead in these layers and further rules basic carbonate." This reasoning assumption was based on the that white lead overwhelming [inte- carbonate "was the form of lead in painting] pigments." rior assumption However, final was based testimony concerning on the market share of various

Case Details

Case Name: Thomas Ex Rel. Gramling v. Mallett

Court Name: Wisconsin Supreme Court

Date Published: Jul 15, 2005

Citation: 701 N.W.2d 523

Docket Number: 2003AP1528

Court Abbreviation: Wis.