Comment on Thomas v. Mallett and Senate Bill 402

December 27, 2005
Ralph Conner

The Wisconsin legislature has approved a bill, S.B. 402, that would restore one of the classic requirements for recovery for injuries allegedly caused by products. It is not certain whether Governor Jim Doyle will sign the bill into law. The bill restores a requirement abolished by a July 2005 Wisconsin Supreme Court case named Thomas v. Mallet.

The following statement is by Maureen Martin, an attorney residing in Green Lake, Wisconsin, and a senior fellow for legal affairs for The Heartland Institute. To contact Martin for additional comments and interviews, please call Ralph Conner at 312/377-4000 or email Martin directly to martin@heartland.org.


Historically and in Wisconsin until the Thomas v. Mallet case, plaintiffs in tort cases were almost always barred from recovering damages unless they proved the product manufactured by the specific defendant named in the suit actually caused the plaintiff's injury. The sole exception was a single case involving the drug DES, which produces a "signature injury"--a rare form of vaginal cancer unlikely to have any other cause. Thomas threatens to change this long-standing practice, opening the door to the expense and injustices of lawsuit abuse.

The plaintiff in Thomas, now 15 years old, alleges he ingested lead-based paint and exhibited elevated blood lead levels in testing done when he was less than three years old. He lived in rental houses that were built in Milwaukee in 1900 and 1905, when the interior use of paint containing lead carbonate pigment was legal and common. He alleges he will require lifetime medical monitoring for various possible future ailments.

The plaintiff admits he cannot identify the paint product used in the houses in which he lived, nor can he identify whether or even if any of the pigments manufactured by the seven manufacturers of lead carbonate pigment he is suing were in the paint applied inside those houses. Nevertheless, he has already recovered about $324,000 from his landlords' insurers and is suing paint pigment manufacturers for more.

The state supreme court majority in Thomas found the plaintiff can prevail if he can prove the defendants manufactured and marketed white lead carbonate pigment and that the pigment caused his injury. He will not be required to show that any of the specific pigment manufactured by the seven defendants was present in the paint. The premise for this liability is that the defendants were participants in the industry that created the risk to the plaintiff.

Noting "bad facts make bad law," one of the dissenting judges advanced a number of reasons why the risk creation doctrine should not be applied in this case. First, none of the defendants manufactured lead pigment when the plaintiff's houses were built and almost all of the defendants had ceased manufacturing it by 1950. Wisconsin did not ban lead-based paint until 1980.

Second, the plaintiff cannot prove his elevated blood-lead levels came from lead-based paint. They could come from any source of lead, which is "ubiquitous" in the environment.

Thus, this judge noted:

"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 dissent got it exactly right. Lead, indeed, is ubiquitous in the environment, and ingestion of lead-based paint produces no "signature" injury that distinguishes it from other types of lead. The plaintiff's elevated blood-lead levels thus could have resulted from the ingestion of lead from any number of sources.

One particularly prevalent source of lead ingestion is drinking water conveyed through plumbing lines made of lead or containing lead solder, particularly in older homes. In its 2004 Water Quality Report, the Milwaukee Water Works states Milwaukee drinking water in that year contained 4.8 micrograms per liter of lead (the federal standard is 15 micrograms/L) and warns that persons concerned about lead should have their water tested.

Apart from drinking water, elevated blood-lead levels can result from inhaling lead-contaminated dust from outdoor soils where children play. Particularly in urban areas, these soils are often contaminated by lead air emissions from gasoline, which settle to the ground. Lead was not fully banned from gasoline until 1996.

Moreover, the presence indoors of paint containing lead pigment presents no risk if painted surfaces are properly maintained. If they are not, lead dust can enter the indoor air and be inhaled. Since they had ceased manufacturing lead-paint pigment by 1950, some 40 years of maintenance uncertainty passed before the plaintiff allegedly ingested lead-based paint. Obviously, the defendants had no control over maintenance of the applied paint.

Finally, the United States Environmental Protection Agency has not established for certain that ingestion of deteriorated lead-based paint causes elevated lead levels in human blood: "Data that definitively relate deteriorated paint to blood-lead concentrations are not available." 63 Fed. Reg. 30302, 30314.

The Wisconsin Supreme Court's decision in Thomas is "junk law" based on "junk science." It comes in the wake of another decision striking down the state's medical malpractice award caps, and the governor's veto in November of legislation to restore those caps. Now the state is becoming a Mecca for lead-based paint plaintiffs, as well-known plaintiffs' firms already have filed more cases.

Both houses of the Wisconsin legislature have recognized this growing legal crisis and have approved a bill, now called Senate Bill 402, which strikes a reasonable balance between plaintiffs' rights to recovery for their injuries and defendants' rights not to be unfairly penalized. Under this measure, a plaintiff unable to prove that a specific product manufactured by a specific defendant caused his injury can nevertheless recover if he proves he has no other source of compensatory damages and his injury was caused by a product that is "chemically identical" to the defendant's product. Actions are limited to products manufactured during the 25-year period before the injury occurred. The law is not limited to lead pigment, but rather applies to any product.

State Sen. Luther Olsen (R-14th) believes the bill is fair. "If you are going to sue somebody, you should at least sue only the manufacturer who made the specific product that caused the injury." That simple logic is difficult to argue with.

On January 5, 2006, this bill will go to Gov. Doyle. If he vetoes it, as is widely expected, it is sure to become a major issue in the 2006 gubernatorial election. And well it should, since so much is at stake with this legislation.

Every manufacturer in Wisconsin, and indeed every manufacturer located anywhere in the world, should worry about the precedent set by Thomas and by the state government's failure to correct it. And because increased liability costs for manufacturers are passed along in the form of higher prices for goods, every consumer has a stake in the outcome of this debate as well.

Gov. Doyle needs to decide if the interests of the plaintiffs' bar outweigh all the other interests involved in this case. For the sake of manufacturers, consumers, and justice itself, let's hope he decides wisely.


Maureen Martin, an attorney based in Green Lake, Wisconsin, is senior fellow for legal affairs for The Heartland Institute, a national nonprofit research organization. Her complete bio can be found at http://www.heartland.org/SpeakersBureauArticle.cfm?sbrId=63. Among other publications, Heartland publishes Lawsuit Abuse Fortnightly, a newsletter documenting cases of lawsuit abuse and its impact on justice and the Rule of Law. For more information, call Ralph Conner, public affairs director, 312/377-4000, or email him at conner@heartland.org.