Thomas v. Mallet, 2005
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Thomas v. Mallett is a lead-paint liability case from Wisconsin. The plaintiff in the case, Steven Thomas, had suffered lead paint injury from living in two houses built, respectively, in 1900 and 1905, that had lead paint on their walls.[1] In Thomas v. Mallett, he sued a variety of companies, including the American Cyanamid Company, Atlantic Richfield, DuPont De Nemours and Co., NL Industries, SCM Chemicals, Sherwin-Williams, and ConAgra Grocery Products, known collectively as the Pigment Manufacturers.
Thomas wanted financial damages from the manufacturers on the grounds that one of them had produced a product that caused his injury. The plaintiff had already successfully sued his landlords, obtaining a financial settlement from them, for "failing to abate lead paint hazards in his prior residences."
The Wisconsin Supreme Court issued its ruling in the case in 2005. Justice Louis Butler wrote the 4-2 majority opinion. He was joined in the majority by Justices Shirley Abrahamson, Ann Walsh Bradley and N. Patrick Crooks. Justices John P. Wilcox and David Prosser vigorously dissented. (Justice Roggensack did not participate.)
In the decision, the majority decided:
- (1) that because [the plaintiff] couldn't prove what kind of white lead carbonate he ingested, he only had to prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence; and
- (2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The court's majority further said that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”
"The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Even though the injury in this case is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result of white lead carbonate, much less the type of white lead carbonate produced by any of the respective defendants. More importantly, he cannot prove when the supposed white lead carbonate that allegedly poisoned him was manufactured or applied to the houses in which he was supposedly lead poisoned. However, none of these facts seem to matter to the majority."
The majority decision
Quotes illustrating how the majority reached its conclusion:
- On alternative remedies against landlords: "While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance".
- ON THE COMMON LAW AND PRECEDENT: "Th[e] common law, however, is frequently refined by this court, consistent with the dynamic principle that “allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.”
- ON THE COMMON LAW AND PRECEDENT: "Although there are those who champion rigid rules with clear delineations, the fact is that the “[c]ommon law is law subject to continuing judicial development, including abrogation.” Indeed, this process of continuing refinement is a vital component of judicial power. If in the name of certainty this court simply deferred to the eras of days passed, we would “ succumb to a rule that a judge should let others long dead and unaware of the problems of the age in which he [or she] lives, do his thinking for him [or her].” (Citations omitted).
- ON IMPOSING LIABILITY ON INNOCENT BUSINESSES: "As a prefatory note... we recognize that cases involving lead poisoning stemming from lead pigment pose difficult problems. The entirely innocent plaintiffs may... never know or be able to prove with certainty which manufacturer produced or promoted the white lead carbonate that caused the injuries. (citations omitted). The Pigment Manufacturers are faced with possible liability for white lead carbonate they may not have produced or marketed. As this court did in Collins, we again conclude 'that as between the plaintiff, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury.'"
- ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING 'DEEP POCKETS': "Second, as compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business."
- ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: "[T]he Pigment Manufacturers note that the paint Thomas allegedly ingested could have been applied at any time between construction of the two houses in 1900 and 1905 and the ban on lead paint in 1978. This significant time span greatly exceeds the nine-month window during which a plaintiff's mother would have taken DES, the Pigment Manufacturers note. Given that Collins attempted to strike a balance between assuring a DES plaintiff had a remedy and providing a realistic opportunity to each DES pill manufacturer to prove that it could not have caused the plaintiff's harm (by establishing its DES could not have reached the mother during her pregnancy), the Pigment Manufacturers contend that Collins should not be extended given that they have no reasonable ability to exculpate themselves. We recognize that the window during which the possible injury causing white lead carbonate was placed in a house that eventually harmed Thomas is drastically larger than a nine-month window for pregnancy. However, the window will not always be potentially as large as appears in this case."
The dissenting opinion
Quotes illustrating why Prosser and Jon Wilcox dissented:
- On the common law and precedent: "A legitimate system of law requires adherence to established legal principles, even if such adherence does not produce a result deemed desirable by the collective wisdom of four members of this court. Our common law used to require a plaintiff to prove four elements in order to recover under a theory of negligence: duty, breach, causation, and damages. Throughout the years, this court has essentially eliminated the requirement that a plaintiff prove the second element by holding that in Wisconsin, everyone owes a duty of reasonable care to the entire world."
- On tort liability: "Subjecting the defendants in this case to liability under these circumstances amounts to an unwarranted and unprecedented relaxation of the traditional rules governing tort liability, and raises serious concerns of fundamental fairness, as the defendants will be unable to realistically exculpate themselves. The majority opinion not only creates the risk that liability may be wholly out of proportion with the culpability of each individual defendant; it raises a distinct possibility that some defendants may be held liable for an injury they did not and could not have caused. The majority seems content to run roughshod over established principles of causation and the rights of each defendant to present a defense and be judged based on its own actions. The majority's decision renders Wisconsin the only state to apply some form of collective liability in lead paint suits under similar facts."
Additional reading
References
- ↑ The court determined, "In addition, due to Thomas's elevated BPb over the extended period of time, Thomas will require lifetime medical monitoring-surveillance for physical disorders, as he is now at a high risk for developing future medical complications, including kidney disease, peripheral neuropathy, hypertension, and cardiovascular disease. Rosen opines that Thomas's high lead levels are exclusively derived from ingesting lead based pigments in paint.
