Risky Business
Fourteen-year-old Steven Thomas suffers from numerous neurological disorders. He has attention deficit disorder and is mildly retarded. His family and lawyers blame his condition on lead paint chips and dust that he ingested while living in two turn of the century houses in Milwaukee.
Thomas settled with the owners of those homes, to the tune of $325,000 in a structured settlement. But his legal team didn’t stop there. They also sued the major lead pigment manufacturers and companies that once sold lead based paint, claiming they also are liable for Thomas’ injuries because they conspired to hide the dangers of lead paint from the public.
So far, however, as with just about everyone else who has sued the industry, Thomas hasn’t had much luck. The trial court threw out his 1999 case, and an appellate panel upheld the decision last June.
But plaintiffs are looking to the Wisconsin Supreme Court to take a different view. The court granted certiorari in the case, and it is scheduled to hear arguments this month. Thomas v. Mallett, 685 N.W.2d 791 (Wis. App. 2004).
“I guess Wisconsin is the last, best hope,” says Pittsburgh lawyer Robert F. Daley, who is following Thomas and has advocated for years that courts accept alternative liability theories to fairly adjudicate lead paint poisoning claims.
What gives plaintiffs lawyers hope–and defense lawyers pause–is a 1984 Wisconsin Supreme Court decision that relaxed the traditional burden on plaintiffs to identify the manufacturer or seller of a product believed to cause harm. Collins v. Eli Lilly Co., 342 N.W.2d 37. The court adopted a risk contribution theory in cases involving women who developed a vaginal cancer that was directly linked to a pill their mothers took. The drug, diethylstilbestrol or DES, was given to pregnant women to prevent miscarriage until 1971, when the link to cancer became clear.
Divvying Up Liability
The Collins decision followed a similar ruling by the California Supreme Court, which crafted a market share liability theory as a method of recovery for DES victims who otherwise could not identify the companies that produced the pills their mothers ingested. The court then apportioned liability by determining the defendant’s market share. Sindell v. Abbott Laboratories, 607 P.2d 924 (1980).
What worries defendants is that the Collins court took the Sindell rationale one step further. The California market share concept requires a plaintiff to identify the manufacturers of the defective product in the geographic area at the time the drug was ingested. By contrast, Daley says, risk contribution considers market share as one of several factors to determine relative risk. In California, plaintiffs sued multiple DES defendants based on their market share. In Wisconsin, a plaintiff is allowed to pick a single defendant, and the jury considers market share as one of the factors to determine the percentage of causal liability.
Collins also suggested that liability could be used in other “factually similar” cases, beyond DES. So far, no other court has taken that approach.
Des Moines, Iowa, attorney Bonnie J. Campbell, who represents the defendant manufacturers and retailers, hopes the Wisconsin Supreme Court won’t be the first. “This would be a precedent in Wisconsin and I think a very bad precedent for the law of torts,” says Campbell, a former plaintiffs trial lawyer and Iowa attorney general. “I tend to look at things from a public policy position,” she says. “Market share is bad enough. This risk contribution theory is really fundamentally unfair.”
Plaintiffs lawyers argue that lead paint litigation is precisely the type of factually similar case the Wisconsin high court had in mind.
“Wisconsin is unique in that its ruling in the DES context is much broader than any other state,” says Milwaukee lawyer Peter G. Earle, who has represented Thomas for nearly 10 years. For Earle, the Thomas case is an opportunity for the courts to recognize, as with DES, that lead paint plaintiffs face a formidable task identifying traditional tort defendants. He wants the Wisconsin high court to “recognize that reality” rather than “continue to rigidly apply causation in a way that effectively immunizes the manufacturers from liability.”
The appellate panel majority in Thomas didn’t bite. The majority on the panel distinguished Thomas from DES cases and said Thomas already had a remedy for his injuries–the settlements from his landlords.
“Although undoubtedly Thomas would like to have additional ‘deep pockets’ to plumb, on top of the approximately $325,000 he received in settlement from both owners, he is not entitled ‘to the exact remedy’ he might prefer,” Judge Ralph A. Fine wrote for the majority.
Judge Richard S. Brown concurred in the opinion siding with the industry, but for another reason. He wrote that only the state supreme court can extend the risk contribution theory to lead paint cases. He went on to disagree with the majority’s analysis on the remedy issue. “I have never seen a case that insulates a wrongdoer from being exposed simply because there exists a remedy against another wrongdoer,” he wrote.
But Campbell and the industry lawyers say they have strong defenses to offer the supreme court, which may decide not to address market share liability theory at all. Campbell distinguishes lead paint litigation from DES cases, arguing that DES victims could narrow the time frame for injury to a single nine month gestational period, while the lead paint industry included hundreds of manufacturers in and out of business for more than 80 years. And while DES ingestion was linked to a signature injury, lead poisoning can cause physical or mental injuries that can also be caused by or exacerbated by other environmental or domestic factors.
Daley, who continues to argue that market share liability is a good fit for lead paint poisoning cases, nevertheless has similar reservations and points to the same distinctions. But just as courts crafted a resolution for DES victims, Daley says, they should craft a resolution for lead paint poisoning victims. “Market share in some limited application would be appropriate,” Daley says.
“The lead industry should answer the allegations that have been made,” he says. But with a twist of pessimism, he adds, “I just don’t see it happening.”
