Brenner v. American Cyanamid Co.

• Decision Date: 30 December 1999
• Citation: 699 N.Y.S.2d 848
• Parties: 1999 N.Y. Slip Op. 11,483 Richard K. BRENNER and Terry L. Brenner, as Parents and Natural Guardians of the Estate, Goods and Chattels of Richard Brenner, III, an Infant Minor, Plaintiffs-Respondents, et al., Plaintiff, v. AMERICAN CYANAMID COMPANY, Successor in Interest to MacGregor Lead Company, Atlantic Richfield Company, Lead Industries Association, Inc., N.L. Industries, Inc., SCM Corporation, Successor in Interest to the Glidden Company, The Glidden Company, The O'Brien Corporation, d/b/a Fuller-O'Brien Paints, The Sherwin-Williams Company, Defendants-Appellants, et al., Defendants
• Court: New York Supreme Court — Appellate Division

Page 848

699 N.Y.S.2d 848

1999 N.Y. Slip Op. 11,483

Richard K. BRENNER and Terry L. Brenner, as Parents and Natural Guardians of the Estate, Goods and Chattels of Richard Brenner, III, an Infant Minor, Plaintiffs-Respondents, et al., Plaintiff, v. AMERICAN CYANAMID COMPANY, Successor in Interest to MacGregor Lead Company, Atlantic Richfield Company, Lead Industries Association, Inc., N.L. Industries, Inc., SCM Corporation, Successor in Interest to the Glidden Company, The Glidden Company, The O'Brien Corporation, d/b/a Fuller-O'Brien Paints, The Sherwin-Williams Company, Defendants-Appellants, et al., Defendants

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 1999.

Michael T. Nilan, Minneapolis, MN, for defendants-appellants SCM Corporation, successor in interest to The Glidden Company, and The Glidden Company.

Philip H. Curtis, New York City, for defendants-appellants American Cyanamid Company successor in interest to MacGregor Lead Company, Atlantic Richfield Company, Lead Industries Association, Inc., N.L. Industries, Inc. and The O'Brien Corporation, d/b/a Fuller-O'Brien Paints.

Paul M. Pohl, Pittsburgh, PA, for defendant-appellant The Sherwin Williams Company.

Philip H. Magner, Jr., Buffalo, for plaintiffs-respondents.

Kathleen Kaczor, Buffalo, for Product Liability Advisory Council, Inc., amicus curiae.

James A. Henderson, Jr., Ithaca, for Chemical Manufacturers Association, amicus curiae.

PRESENT: LAWTON, J.P., HAYES, HURLBUTT and BALIO, JJ.

HAYES, J.:

I

The issue presented in this appeal is whether a market share theory for determining liability and apportioning damages (see, Hymowitz v. Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338) should apply in a lead poisoning case in which the identification of the manufacturer of lead pigment whose product allegedly caused the lead poisoning cannot be ascertained. We conclude that the theory should not be applied.

II

Richard K. Brenner and Terry L. Brenner (plaintiffs) commenced this action as parents and natural guardians of their child, Richard Brenner, III (Richard), alleging that he became ill after ingesting lead-based paint chips and inhaling dust from deterioration of lead-based paint applied to the walls of their residence. In January 1992, when Richard was less than two years old, plaintiffs moved into an apartment in a house that was built in 1926. By September 1992 Richard was diagnosed with severe lead poisoning as confirmed by blood tests and the presence of "lead lines" on radiographs of the child's long bones. Richard's sister and mother recalled seeing Richard placing his mouth on the window sills and placing paint chips in his mouth. The Erie County Department of Health conducted a lead investigation of plaintiffs' apartment. Out of the 43 sites that were examined, 15 tested positive for lead.

In the complaint, plaintiffs alleged that Richard sustained permanent injuries to his central nervous system that were proximately caused by his ingestion of the paint chips and dust containing white lead pigments, including dry white lead carbonate, dry white lead sulfate, and dry white lead in oil. A neurobehavioral-cognitive assessment of Richard in 1998 revealed that, although he had average academic skills, "he evidenced deficits in impulse control, attention, concentration, abstract thinking, comprehension, visual organization and graphomotor skills, speech articulation, [and] dysgraphia coupled to an attention deficit-hyperactivity disorder". Plaintiffs' medical expert opined that those deficits were caused by early and severe lead poisoning.

Plaintiffs named as defendants manufacturers or successors in interest to manufacturers of white lead carbonate during the period from 1926, the year the house in which plaintiffs resided was built, until 1955, the year lead-based paint was no longer sold for interior residential use. Plaintiffs also sued defendant Lead Industries Association, Inc., a trade association that included as members the manufacturer defendants. Plaintiffs alleged various causes of action, including negligence and strict products liability. Plaintiffs alleged that the presence of white lead carbonate in interior residential paint rendered the paint defective and dangerous. However, plaintiffs alleged that they were unable to identify the manufacturer of the white lead carbonate found in their residence, and thus also asserted three theories of collective liability: enterprise liability, market share liability, and alternative liability. All of the defendants, with the exception of SCM Chemicals, Inc. and Eagle-Picher Industries, Inc., moved for partial summary judgment dismissing the sixth, seventh, and eighth causes of action of the amended complaint, which alleged those three theories of collective liability, against them. Supreme Court granted in part the motions of those defendants (hereafter defendants) and dismissed the sixth and eighth causes of action, which allege enterprise liability and alternative liability. The court denied those parts of defendants' motions with respect to the seventh cause of action, which alleges market share liability. For the reasons that follow, we conclude that the court should have granted defendants' motions in their entirety.

III

Plaintiffs contend that the market share theory, first adopted by the Court of Appeals in Hymowitz, should apply to this case. We agree with defendants that the market share theory should not be extended to this case.

In Hymowitz, the plaintiffs were daughters of women who had ingested the drug diethylstilbestrol (DES) during pregnancy (Hymowitz v. Lilly & Co., supra, at 502, 541 N.Y.S.2d 941, 539 N.E.2d 1069). Tests indicated that, as a result of their mothers' ingestion of DES, plaintiffs developed vaginal adenocarcinoma, a form of cancer, and adenosis, a precancerous vaginal or cervical growth (Hymowitz v. Lilly & Co., supra, at 502-503, 541 N.Y.S.2d 941, 539 N.E.2d 1069). Each plaintiff was unable to identify the manufacturer of the DES pill ingested by her mother because all DES manufactured had an identical chemical composition and pharmacists "usually filled prescriptions from whatever was on hand" (Hymowitz v. Lilly & Co., supra, at 503, 541 N.Y.S.2d 941, 539 N.E.2d 1069). In addition, approximately 300 manufacturers produced the drug, and companies entered and left the market during the 24 years that the drug was sold for pregnancy use (Hymowitz v. Lilly Co., supra, at 503, 541 N.Y.S.2d 941, 539 N.E.2d 1069). The long latency period of a DES injury compounded the identification problem (Hymowitz v. Lilly & Co., supra, at 503, 541 N.Y.S.2d 941, 539 N.E.2d 1069).

The Court noted that, "[i]n a products liability action, identification of the exact defendant whose product injured the plaintiff is, of course, generally required" (Hymowitz v. Lilly & Co., supra, at 504, 541 N.Y.S.2d 941, 539 N.E.2d 1069). Rather than dismissing the action on the ground that the plaintiffs were unable to identify which defendant manufactured the product that injured them, the Court adopted a market share theory using a national market whereby liability was apportioned "so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large" (Hymowitz v. Lilly & Co., supra, at 512, 541 N.Y.S.2d 941, 539 N.E.2d 1069; see, Matter of DES Mkt. Share Litig., 79 N.Y.2d 299, 303, 582 N.Y.S.2d 377, 591 N.E.2d 226). Instead of requiring each plaintiff to identify the manufacturer that produced the drug ingested by her mother, the Court required each plaintiff to identify only the nine-month period during which her mother ingested the drug, the manufacturers in the market during that period, and the respective share of each such manufacturer during that period (see, Hymowitz v. Lilly & Co., supra, at 511-512, 541 N.Y.S.2d 941, 539 N.E.2d 1069; see also, Matter of DES Mkt. Share Litig., supra, at 307, 582 N.Y.S.2d 377, 591 N.E.2d 226).

Liability was apportioned among the DES manufacturers in that manner "to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large" (Hymowitz v. Lilly & Co., supra, at 512, 541 N.Y.S.2d 941, 539 N.E.2d 1069). Thus, the basis of liability was the culpability of a DES manufacturer for marketing the drug, and not causation in a single case (Hymowitz v. Lilly & Co., supra, at 512, 541 N.Y.S.2d 941, 539 N.E.2d 1069). The Court noted that, "[u]nder the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs' injuries among defendants" (Hymowitz v Lilly & Co., supra, at 512, 541 N.Y.S.2d 941, 539 N.E.2d 1069).

The Court in Hymowitz recognized, however, that the market share theory was a remedy for a unique situation: "We stress, however, that the DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, generically marketed product, which causes injury many years later, and which has evoked a legislative response reviving previously barred actions. Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action" (Hymowitz v. Lilly & Co., supra, at 508, 541 N.Y.S.2d 941, 539 N.E.2d 1069).

IV

The issue whether the market share theory applies in lead poisoning cases is one of first impression in New York. Those courts in other jurisdictions in which this issue has arisen have refused to apply the market share theory to lead poisoning cases (see, Jefferson v. Lead Indus. Assn., 930 F.Supp. 241, 246-247 (E.D.La.1996), affd. ...