Santiago v. Sherwin-Williams Co.

• Decision Date: 13 January 1992
• Docket Number: Civ.A. No. 87-2799-T.
• Citation: 782 F. Supp. 186
• Parties: Monica SANTIAGO, Plaintiff, v. SHERWIN-WILLIAMS COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

782 F. Supp. 186

Monica SANTIAGO, Plaintiff, v. SHERWIN-WILLIAMS COMPANY, et al., Defendants.

Civ.A. No. 87-2799-T.

United States District Court, D. Massachusetts.

January 13, 1992.

Neil T. Leifer, Stephen J. Kiely, Thornton & Early, Jonathan Shapiro, Stern & Shapiro, Boston, Mass., Judith E. Somberg, Johnson & Somberg, Jamaica Plain, Mass., Arthur Bryant, Washington, D.C., for plaintiff Monica Santiago.

Thomas J. Griffin, Jr., Goodwin, Proctor & Hoar, Boston, Mass., Paul Michael Pohl, Charles H. Moellenberg, Jones, Day, Reavis & Pogue, Pittsburg, Pa., for defendant Sherwin-Williams Co.

Peter S. Terris, Palmer & Dodge, Boston, Mass., Kirsten K. Robbins, Kirkland & Ellis, Washington, D.C., for defendant NL Industries, Inc.

Lawrence Gerard Cetrulo, Burns & Levinson, Boston, Mass., for defendant Eagle-Picher Industries, Inc.

Thomas V. Urmy, Jr., Shapiro, Grace & Haber, Boston, Mass., Janie S. Mayeron, G. Marc Whitehead (argued), Ellen Maas, Michael L. Nilan, Popham, Haik, Schnobrich & Kaufman, Minneapolis, Minn., for defendant SCM Corp.

Mary Morrissey Sullivan, Sullivan, Sullivan & Pinta, Boston, Mass., for defendant Lead Industries Ass'n.

Rory John Fitzpatrick, Rory Fitzpatrick, Meghan H. Magruder, John C. Solomon, Bingham, Dana & Gould, Boston, Mass., for defendant Atlantic Richfield Corp.

MEMORANDUM

TAURO, Chief Judge.

Plaintiff Monica Santiago¹ brought this action against several defendants² that manufactured lead pigment contained in lead-based paint, charging that their negligence caused her to become lead poisoned. Although the defendants used pigment themselves in their own paint, the gravamen of Santiago's complaint against them relates to their role as manufacturer of lead pigment and bulk supplier to other paint producers. The defendants were all members of defendant Lead Industries Association ("LIA"), a trade association.

Santiago was born on November 9, 1972. From her birth until 1978, she and her family lived in an apartment at 20 Liston Street in Dorchester, Massachusetts. She alleges that, during those years, she ingested lead from paint on the walls of the family's apartment. The walls contained multiple layers of paint, the first of which had been applied around the time the apartment house was built in 1917. In November 1973, Santiago was first diagnosed as having lead poisoning. She was hospitalized in July 1976, and underwent chelation therapy to remove lead from her body.

Santiago alleges that defendants, or their predecessors in interest, marketed all or virtually all of the lead used in lead-based paints sold in the United States between 1917 and 1972. Specifically, the complaint charges defendants with negligent product design, negligent failure to warn, breach of warranty, and concert of action. She maintains that defendants, by and through defendant LIA, "mislead retailers, users, applicators, and parents of young children ... with respect to the unreasonable risks and hazards posed to young children by the lead produced and marketed by them and by the paint containing such lead." Amended Compl. ¶ 26. She seeks $2.5 million in compensatory and punitive damages.

Presently at issue is the applicability of market share liability as a theory of recovery for Santiago, given the uncontradicted material facts involved in this case. Defendants move for partial summary judgment on the ground that she cannot identify which of them allegedly caused her harm. They contend that, in the absence of a market share liability theory, identification is essential to plaintiff's case. They further argue that market share liability is not the law in Massachusetts, and that the Supreme Judicial Court would not adopt market share in the context of the circumstances involved here. Santiago, in her motion for partial summary judgment, argues to the contrary.

I. Market Share Generally

A threshold requirement in any products liability action is the identification of the injury-causing product and its manufacturer. Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 188 (1982). As a general rule, if the plaintiff cannot establish who or what caused her injury, summary judgment for the defendant is appropriate. Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) (summary judgment appropriate where plaintiff fails to present sufficient evidence to establish the existence of each element of her claim).

In exceptional circumstances, courts have relaxed the identification requirement, and permitted a plaintiff to shift the burden of establishing the cause of injury to clearly culpable defendants. See Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) (where two defendants negligently fired shots, only one of which hit plaintiff, burden shifts to defendants to prove lack of causation). The rationale behind this theory of alternative liability "is the injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm." Restatement (Second) of Torts § 433B, comment f, p. 446.

Given the reality of mass production and complex marketing methods, courts have recognized the difficulty a products liability plaintiff faces in identifying the manufacturer that caused the alleged harm. "Advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer." Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 144, 607 P.2d 924, 936, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980). Courts from various jurisdictions, therefore, have relied upon the concept of alternative liability "to aid plaintiffs in overcoming an inability to prove causation in products liability." Starling v. Seaboard C.L.R. Co., 533 F.Supp. 183, 187 (S.D.Ga. 1982).

In Sindell, the California Supreme Court pioneered a derivative of alternative liability, known as market share theory. In that case, the daughters of women who had ingested the drug DES during pregnancy brought a class action against manufacturers that had produced a "substantial share" of DES during the relevant time period. They alleged that their exposure to DES in utero caused a rare form of cancer, and that the defendants were negligent in failing to adequately test the drug or warn of its potential hazards. The plaintiffs could not, however, identify which particular DES manufacturer had supplied the pills that caused their injury.

Recognizing that traditional tort principles would foreclose the plaintiffs from recovering, the court nonetheless held that public policy reasons supported allowing the suit. 163 Cal.Rptr. at 144, 607 P.2d at 936. See also Starling, 533 F.Supp. at 187 ("Market share liability ... eliminates proof of causation strictly for public policy reasons."). The court stated that

as between an innocent plaintiff and negligent defendants, the latter should bear the cost of injury. Here, as in Summers, plaintiff is not at fault in failing to provide evidence of causation, and although the absence of such evidence is not attributable to the defendants either, their conduct in marketing a drug the effects of which are delayed for many years played a significant role in creating the unavailability of proof.

Sindell, 163 Cal.Rptr. at 144, 607 P.2d at 936. See also McCormack v. Abbott Laboratories, 617 F.Supp. 1521, 1524 (D.Mass. 1985) (Market share liability is justified because "all defendants contributed to the risk of injury to the public, and consequently, the risk of injury to the individual plaintiffs.").

The Sindell court refused to base the defendants' liability directly on Summers, because the plaintiffs had failed to join all the parties that could have been responsible for causing their harm. 163 Cal.Rptr. at 139, 607 P.2d at 931. The court estimated that two hundred manufacturers had produced DES, while the plaintiff named only five manufacturers as defendants. 163 Cal.Rptr. at 147, 607 P.2d at 939 (Richardson, J., dissenting). Finding "forceful arguments in favor of holding that plaintiff has a cause of action,"³ the court created market share liability, which reflects a "modification of the rule of Summers." 163 Cal.Rptr. at 144, 607 P.2d at 936.

As a further variation on Summers, the court also declined to impose joint and several liability in Sindell. It reasoned that, in view of the large number of manufacturers, there may be a substantial likelihood that none of the named defendants actually supplied the drug which caused plaintiffs' harm. Sindell, 163 Cal.Rptr. at 144-45, 607 P.2d at 936-37. In the interest of fairness, therefore, it decided that each defendant would be liable only for "the proportion of the judgment represented by its share of the market." 163 Cal.Rptr. at 145, 607 P.2d at 937. The rationale supporting the market share concept was that, assuming identification could have been made in 100 cases, a defendant having twenty percent of the market would have been 100 percent liable in twenty cases. Market share would reach the same essential result by holding that particular defendant twenty percent liable in 100 percent of the cases. See Sindell, 163 Cal.Rptr. at 145 & n. 28, 607 P.2d at 937 & n. 28.

Market share theory, therefore, permits a plaintiff to bypass the traditional threshold requirement of identifying the defendant that caused the alleged harm. McCormack, 617 F.Supp. at 1524. In general,⁴ a plaintiff "need only allege inability to identify the actual manufacturer, and join as defendants those manufacturers that compose a `substantial share' of the market."⁵ Hannon v. Waterman S.S. Corp., 567 F.Supp. 90, 91 n. 1 (E.D.La.1983) (quoting Note, "Market Share Liability for Defective Products: An...