Skipworth by Williams v. Lead Industries Ass'n, Inc.

Citation547 Pa. 224,690 A.2d 169
CourtUnited States State Supreme Court of Pennsylvania
Decision Date19 February 1997
Parties, 65 USLW 2579, Prod.Liab.Rep. (CCH) P 14,914, 69 A.L.R.5th 693 Dominique D. SKIPWORTH, a minor, by her legal guardian, Pandora WILLIAMS, and her mother and co-legal guardian, Ernestine Richardson, Appellants, v. LEAD INDUSTRIES ASSOCIATION, INC., NL Industries, Inc., Atlantic Richfield Company, Sherwin Williams Company, SCM Corporation, The Glidden Company, E.I. DuPont De Nemours & Co., Tin Lion Enterprises, Inc., Joseph F. Fillion and Frances Fillion, George Keehfus, Jr., City of Philadelphia, Department of Health.

Lawrence R. Cohan, Philadelphia, Colleen M. Hickey, Collegeville, for appellants.

Thomas M. Kittredge, James D. Pagliaro, Philadelphia, for Lead Industries Assoc., Inc.

Timothy S. Hardy, Kirsten K. Robbins, Washington, DC, Ellen Rogoff, Philadelphia, for NL Industries, Inc.

Christopher N. Santoro, Philadelphia, for Joseph and Francis Fillion.

William H. Kinkead, III, Blue Bell, for George W. Keehfus, Jr.

John E. Iole, Charles H. Moellenberg, Jr., Pittsburgh, John P. Penders, Philadelphia, Paul M. Pohl, Pittsburgh, for Sherwin Williams.

Michael J. Sweeney, Pittsburgh, for E.I. Du Pont de Nemours & Co.

James R. Miller, Pittsburgh, for PPG/DuPont/Pratt & Lambert.

Mary E. Kohart, Julia Ann Matheson, Philadelphia, for SCM Corp. & The Glidden Co.

Robert C. Heim, Mary A. McLaughlin, Philadelphia, for Atlantic Richfield Company.

Edwin L. Kleet, for Amicus Curiae Pa. Chamber of Business and Industry.

Darrell M. Zaslow, Philadelphia, for Amicus Curiae Homeowner's Assoc. of Phila.

K. W. James Rochow, Harrisburg, for Amicus Curiae Alliance to End Childhood Lead Poisoning.

Denise Baker, Philadelphia, for Amicus Curiae Phila. Housing Authority.

Martin Greitzer, Philadelphia, for Amicus - Pa. Trial Lawyers Assoc.

Arthur H. Bryant, Philadelphia, for Amicus Curiae Trial Lawyers for Public Justice.

George D. Gould, Philadelphia, for Amicus Curiae Tenants' Action Group Community Legal Services.

Edward W. Madeira, Jr., James M. Beck, Philadelphia, Hugh F. Young, Jr., for Amicus Curiae Product Liability Advisory Council, Inc.



CAPPY, Justice.

This is an appeal by allowance from the order of the Superior Court, affirming the entry of summary judgment by the Court of Common Pleas of Philadelphia County. For the reasons that follow, we now affirm.

Dominique Skipworth ("Skipworth") was born on September 18, 1988. Between September 10, 1990 and May 8, 1991, she was hospitalized for lead poisoning on three separate occasions. She also received outpatient therapy for lead poisoning in August 1991, and again in June 1992. During this time, she resided at only one home, located at 2840 West Stiles Street in Philadelphia. This residence, which had been rented by Skipworth's guardian, Pandora Williams ("Williams"), was estimated to have been built circa 1870. Testing of Skipworth's residence revealed the presence of lead-based paint at various locations throughout the home.

On March 17, 1992, Skipworth filed an action through her legal guardian, Williams, and her co-legal guardian and mother, Ernestine Richardson (collectively referred to as "Appellants") against several manufacturers of lead pigment ("the pigment manufacturers") and their alleged successors as well as a trade association, Lead Industries Association, Inc. ("LIA"). 1 Appellants alleged that Skipworth suffered physical and neuropsychological injuries as a result of lead poisoning from the lead paint in her home. Appellants stipulated that they could not identify the manufacturer of the lead pigment which Skipworth ingested, and admitted that they could not identify when such pigment was made, sold, or applied to her home. Appellants, however, alleged that they had identified and joined in this action substantially all of the manufacturers of lead pigment used in residential house paint from 1870 until production of lead pigment ceased in 1977. Appellants thus proceeded against the pigment manufacturers and LIA (collectively referred to as "Appellees") by invoking theories of collective liability, namely market share liability, alternate liability, conspiracy, and concert of action.

Appellees filed a motion for summary judgment. The trial court granted Appellees' motion for summary judgment as to all counts of Appellants' complaint.

The Superior Court affirmed. In discussing Appellants' contention that market share liability is a viable theory of recovery in Pennsylvania, the Superior Court noted that neither this court nor the legislature had adopted market share liability as a theory of recovery in products liability actions. 445 Pa.Super. 610, 617, 665 A.2d 1288, 1292. Indicating that such an extensive policy shift as adopting market share liability was not for an intermediate appellate court to make, the Superior Court declined to award Appellants relief on this issue. The Superior Court then determined that Appellees were also entitled to judgment as a matter of law as to Appellants' remaining claims of alternate liability, conspiracy and concert of action. Appellants subsequently filed a petition for allowance of appeal from this determination, and we granted allocatur. We now affirm.

In reviewing whether a trial court's award of summary judgment was appropriate in a case, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-145, 615 A.2d 303, 304 (1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Pa.R.C.P. No. 1035. As all of the issues in this case present questions of law, our scope of review is plenary. See Phillips v. A-Best Products Co., 542 Pa. 124, 130, 665 A.2d 1167, 1170 (1995).

The first question presented in this appeal is whether this court should adopt the market share liability theory in the context of lead poisoning cases. 2 The market share liability theory 3 provides an exception to the general rule that a plaintiff must establish that the defendant proximately caused his or her injury. A sharply divided California Supreme Court was the first court to adopt this theory of liability. See Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132 (1980). The Sindell case involved a plaintiff who developed cancer as a result of her mother's ingestion during pregnancy of diethylstilbestrol ("DES"), a drug with an identical formula manufactured by several different companies. Because of the inability to trace the source of the DES due to its fungible nature and the long time lapse between its sale and the development of health problems, the plaintiff was unable to identify, through no fault of her own, the manufacturer of the DES ingested by her mother.

The Sindell court concluded that the plaintiff need not identify which particular manufacturer made the DES ingested by her mother, and held that the manufacturers of the product identical to the one which harmed plaintiff were liable in shares proportional to their share of the market at the time plaintiff's mother ingested the drug, regardless of actual causation. Id. at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145. The Sindell court stated that market share liability is appropriate where the following factors are present: all the named defendants are potential tortfeasors; the allegedly harmful products are identical and share the same defective qualities (or were "fungible"); the plaintiff is unable to identify which defendant caused her injury through no fault of her own; and, substantially all of the manufacturers which created the defective products during the relevant time are named as defendants. Id. at 611-612, 607 P.2d at 936-937, 163 Cal.Rptr. at 144-145. The rationale for adopting this theory was that "each manufacturer's liability would approximate its responsibility for the injuries caused by its own products." Id. at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145.

Pennsylvania, on the other hand, follows the general rule that a plaintiff, in order to recover, must establish that a particular defendant's negligence was the proximate cause of her injuries. See Cuthbert v. City of Philadelphia, 417 Pa. 610, 614, 209 A.2d 261, 263 (1965) (proximate causation is the "vitally important link" necessary to impose tort liability). Adoption of the market share liability theory would result in a significant departure from this rule. 4 Although we realize that there may arise a situation which would compel us to depart from our time-tested general rule, such a situation is not presented by the matter sub judice. Application of market share liability to lead paint cases such as this one would lead to a distortion of liability which would be so gross as to make determinations of culpability arbitrary and unfair.

The extent to which liability would be contorted in a lead pigment case were market share liability to be applied is brought into sharp focus when the facts presented by this case are compared with the situation presented by a typical DES case, which is the type of case for which this theory was created. Such a comparison has revealed to us two major factors which compel us to conclude that adoption of market share liability in the context of a lead pigment case would unacceptably distort liability. First, the relevant time period in question is far more extensive than the relevant time period in a DES case. In this case, Appellants cannot identify any particular application, or applications, of lead paint which have caused Skipworth's health problems. Thus, they "pinpoint" a more than one...

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