Brief Fact Summary. Skipworth (Plaintiff) was hospitalized for lead poisoning on three separate occasions. Testing of the residence where she lived revealed the presence of lead based paint at various locations throughout the home. Plaintiff filed an action against several manufacturers of lead pigment and their successors, as well as a trade association (Defendants).
Synopsis of Rule of Law. Market share liability is not proper in lead paint poisoning cases
Issue. Is market share liability proper in lead paint poisoning cases?
Held. No. Judgment affirmed.
* The first issue presented to the court was whether or not the court should adopt the market share liability theory in the context of lead poisoning cases. The market share liability theory was first used in Sindell. In Sindell, a plaintiff developed cancer as result of the drug, DES. The plaintiff was unable to identify, though no fault of her own, the manufacturer of the DES, which harmed her. The court in Sindell stated that market share liability is appropriate when the following factors are present: all the defendants are potential tortfeasors; the allegedly harmful products are identical and share the same defective qualities; the plaintiff is unable to identify which defendant caused her injury though no fault of her own; and substantially all of the manufactures which created the defective products during the relevant time are named defendants.
* However, the facts in this case are very different from a typical DES case. The relevant time period in question is far more extensive than the relevant time period in a DES case. Plaintiff pinpoints more than a one hundred year period from the date the house was built until the lead paint ceased being sold for residential purposes. In contrast, the relevant time period in a DES case is necessarily limited to nine months. Over a one hundred year period, several of the lead paint manufacturers entered and left the lead paint market. Certain pigment manufacturers would be liable when they could not possibly have been a potential tortfeasor. Therefore, the first prong of the Sindell test would not be met.
* Lead paint, as opposed to DES, is not a fungible product. Lead pigments had different chemical formulations, contained different amounts of lead, and differed in potential toxicity. A manufacturer whose lead had a lower bioavailability than average would have caused less damage than its market share would indicate. Thus, market share liability would impose a disproportionate share of damages.
* The trial court correctly entered summary judgment in favor of Defendants on Plaintiff’s alternative liability theory. Alternative liability is inapplicable to the facts of this case. Plaintiffs have failed to join all entities, which manufactured lead paint over the one hundred year period.
* The trial court correctly entered summary judgment in favor of Defendants on Plaintiff’s cause of action for civil conspiracy. In order to withstand summary judgment, Plaintiff must have produced evidence that would establish that Defendants acted in concert to commit an unlawful act or do a lawful act by unlawful means, and that they acted with malice. Plaintiff has failed to introduce evidence that Defendants were working in concert. Plaintiff has also failed to introduce evidence of malice.
* The trial court correctly entered summary judgment in favor of Defendants on Plaintiff’s concert of action claim. This theory provides that “for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he does a tortious act in concert with the other or pursuant to a common design with him.” Concert of action cannot be established when Plaintiff cannot identify the wrongdoer or the person who acted in concert with the wrongdoer.
Discussion. Market share liability is appropriate on a select few fact patterns. This lead paint case is not like the DES case. The relative time period that Plaintiff asserts in the lead paint case is far more extensive than the time period in the DES case. In addition, numerous lead paint manufacturers went into and went out of business during the one year time period, alleged by this case.