Thomas v. Mallett

• Decision Date: 15 July 2005
• Docket Number: No. 2003AP1528.,2003AP1528.
• Citation: 2005 WI 129,701 N.W.2d 523,285 Wis.2d 236
• Parties: Steven THOMAS, a Minor, by his Guardian ad Litem, Susan M. Gramling, Plaintiff-Appellant-Petitioner, v. Clinton L. MALLETT, Billie R. Mallett, and Germantown Mutual Insurance Co., Defendants, AMERICAN CYANAMID Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries, Inc., SCM Chemicals, Inc., Sherwin-Williams Co., ConAgra Grocery Products Co., Defendants-Respondents.
• Court: Wisconsin Supreme Court

285 Wis.2d 236

2005 WI 129

701 N.W.2d 523

Steven THOMAS, a Minor, by his Guardian ad Litem, Susan M. Gramling, Plaintiff-Appellant-Petitioner, v. Clinton L. MALLETT, Billie R. Mallett, and Germantown Mutual Insurance Co., Defendants, AMERICAN CYANAMID Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries, Inc., SCM Chemicals, Inc., Sherwin-Williams Co., ConAgra Grocery Products Co., Defendants-Respondents.

No. 2003AP1528.

Supreme Court of Wisconsin.

Oral argument February 1, 2005.

Decided July 15, 2005.

For the plaintiff-appellant-petitioner there were briefs by Peter G. Earle and Law Offices of Peter Earle, Milwaukee; and Robert J. McConnell, Fidelma Fitzpatrick and Motley Rice, LLC, Providence, RI, and oral argument by Peter G. Earle and Robert J. McConnell.

For the defendants-respondents, Atlantic Richfield Company, E.I. du Pont de Nemours & Co., Con-Agra Grocery Products Company, NL Industries, Inc., American Cyanamid Co., and Millennium Inorganic Chemicals, Inc. (f/k/a SCM Chemicals, Inc.) there was a brief by Philip H. Curtis, Bruce R. Kelly and Arnold & Porter, New York, NY, David G. Peterson, Michael B. Apfeld and Godfrey & Kahn, Milwaukee (on behalf of Atlantic Richfield Company); William H. King, Jr., Steven R. Williams, Joy C. Fuhr and McGuire Woods LLP, Richmond, VA, M. Christine Cowles and Quarles & Brady LLP, Milwaukee (on behalf of E.I. du Pont de Nemours Co.); James P. Fitzgerald, John J. Schirger and McGrath, North, Mullin & Kratz, Omaha, NE, Paul Benson and Michael Best & Friedrich, Milwaukee (on behalf of Con-Agra Grocery Products Company); Susan McGuire and Kirland & Ellis, Washington, D.C., Donald E. Scott, Jennifer Heisinger, Elizabeth L. Thompson and Bartlit Beck Herman Palenchar & Scott, Denver, CO, David G. Peterson, Michael B. Apfeld and Godfrey & Kahn, Milwaukee (on behalf of NL Industries, Inc.); Richard W. Mark, Elyse Echtman and Orrick Herrington & Sutcliffe LLP, New York, NY, David G. Peterson, Michael B. Apfeld and Godfrey & Kahn, Milwaukee (on behalf of American Cyanamid Co.); and Michael T. Nilan, Cortney G. Sylvester and Halleland Lewis Nilan Sipkins & Johnson, Minneapolis, MN, James R. Clark, Trevor J. Will and Foley & Lardner, Milwaukee (on behalf of Millennium Inorganic Chemicals Inc. (f/k/a SCM Chemicals, Inc.) and oral argument by Bruce Kelly (on behalf of American Cyanamid Co., et al.).

For the Sherwin-Williams Company there was a brief by Frank J. Daily, David B. Bartel, Jeffrey K. Spoerk, Daniel I. Hanrahan, and Quarles & Brady LLP, Milwaukee; and Paul Michael Pohl, Charles H. Moellenberg, Jennifer B. Flannery and Jones Day, Pittsburgh, PA, and oral argument by Charles H. Moellenberg, Jr.

An amicus curiae brief was filed by Anne Berleman Kearney, Joseph D. Kearney and Appellate Consulting Group, Milwaukee, on behalf of Civil Trial Counsel of Wisconsin. An amicus curiae brief was filed by James A. Buchen, Madison, on behalf of Wisconsin Manufacturers & Commerce.

An amicus curiae brief was filed by Gerardo H. Gonzalez, Richard H. Porter, Chris J. Trebatoski and Gonzalez, Saggio & Harlan, L.L.P., Milwaukee, on behalf of the African-American Chamber of Commerce, Inc. and the Hispanic Chamber of Commerce of Wisconsin, Inc.

An amicus curiae brief was filed by Lynn M. Novotnak and First, Blondis, Albrecht & Novotnak, S.C., Milwaukee, on behalf of Service Employees International Union-Wisconsin State Council, Wisconsin Commission on Occupational Safety and Health, Repairers of the Breach, Wisconsin Citizen Action, American Federation of Teachers, Local 212, and Sixteenth Street Community Health Center.

An amicus curiae brief was filed by Mark S. Olson and Oppenheimer Wolff & Donnelly LLP, Minneapolis, MN; James M. Beck and Dechert LLP, Philadelphia, PA; Hugh F. Young, Jr., Reston, VA, on behalf of Product Liability Advisory Council, Inc.

s 1. LOUIS B. BUTLER, JR., J.

Steven Thomas, by his guardian ad litem, seeks review of a published court of appeals decision¹ that declined to extend the risk-contribution theory announced in Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984), to the defendant-respondent lead pigment manufacturers, American Cyanamid Co., Atlantic Richfield Co., ConAgra Grocery Products Co., E.I. DuPont De Nemours and Comp., NL Industries, Inc., SCM Chemicals, Inc., and Sherwin-Williams Co. (collectively "Pigment Manufacturers"). The court of appeals concluded that because Thomas had a remedy against his landlords for their negligence in failing to abate lead paint hazards in his prior residences, there was no reason to extend Collins' risk-contribution theory. The court of appeals also concluded that Thomas could not proceed on his claims of civil conspiracy and enterprise liability.

s 2. Thomas argues this court should reverse the court of appeals' decision because (1) although he received a remedy from his landlords for their negligence, Article I, Section 9 of the Wisconsin Constitution does not foreclose his seeking a remedy for the Pigment Manufacturers separate wrong for producing and promoting toxic lead pigments; (2) Collins' risk-contribution theory should be recognized for white lead carbonate claims; and (3) he has presented sufficient material facts to warrant a trial on his alternative theories of liability of civil conspiracy and enterprise liability.

s 3. We agree with Thomas that Article I, Section 9 does not insulate wrongdoers from liability simply because recovery has been obtained from an altogether different wrongdoer for an altogether different wrong. We also conclude that the white lead carbonate claims at issue in this case are factually similar enough to Collins to warrant extension of the risk-contribution theory. However, we do not agree that Thomas has presented sufficient material facts to warrant a trial on his civil conspiracy and enterprise liability claims. Therefore, we affirm in part and reverse in part the court of appeals' decision.²

I

s 4. Because this case is before us on summary judgment, we construe all facts and reasonable inferences in the light most favorable to the nonmoving party, which in this case is Thomas.³ See Strozinsky v. Sch. Dist. of Brown Deer, 2000 WI 97, s 32, 237 Wis. 2d 19, 614 N.W.2d 443

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s 5. Thomas was born on June 23, 1990. He claims that he sustained lead poisoning by ingesting lead paint from accessible painted surfaces, paint chips, and paint flakes and dust at two different houses he lived in during the early 1990's.

s 6. In August 1991, while living at 2652 North 37th Street, Milwaukee, Wisconsin, 14-month-old Thomas exhibited an early onset of childhood lead poisoning, with his blood lead levels (BPb) at 18 lg/dl. Thomas's cognitive skills were tested, which identified cognitive deficits in perceptual organization, visual motor integration, expressive language, academic and fine motor skills coupled with an attention deficit hyperactivity disorder. Eight months later, at the end of April 1992, his BPb increased to 40 lg/dl.

s 7. Thomas continued to live at 2652 North 37th Street until January 1993. This house was built in 1905. City of Milwaukee Health Department documented lead-based violations at this home on July 29, 1992 s 8. Thomas's next known phase of lead poisoning occurred while he was living at 2654 North 25th Street, Milwaukee, Wisconsin. That house was built in 1900. Lead-based paint violations were documented at this residence on August 12, 1993.

s 9. While Thomas's BPb decreased by January 1993 to 27 lg/dl, it rose to 49 lg/dl by July 1993. Thomas was admitted to Children's Hospital of Wisconsin for five days of chelation treatment.

s 10. From mid-August 1993 to early September 1993, Thomas's BPb rose from 13 lg/dl to 33-40 lg/dl. From August 1993 until November 1993, Thomas lived at 4736 North 37th Street, Milwaukee, Wisconsin. Thereafter, Thomas's BPb steadily declined but was still in the BPb range for lead poisoning.

s 11. According to Dr. John F. Rosen, a professor of pediatrics and head of the Division of Environmental Sciences at the Children's Hospital at Montefiore of the Albert Einstein College of Medicine, Thomas's cognitive deficits are a "signature or constellation of cognitive effects" that are typical of lead poisoning. In Thomas's case, Rosen states that these deficits are permanent. In addition, due to Thomas's elevated BPb over the extended period of time, Thomas will require lifetime medical monitoring-surveillance for physical disorders, as he is now at a high risk for developing future medical complications, including kidney disease, peripheral neuropathy, hypertension, and cardiovascular disease. Rosen opines that Thomas's high lead levels are exclusively derived from ingesting lead based pigments in paint.⁴ s 12. Thomas subjected various paint samples from his prior residences to chemical analysis. Robert Dragen, an electron microscopist, analyzed the various paint layers contained in the samples and provided the elemental composition for each layer. According to that analysis, none of the paint layers contained detectable levels of sulfur or chromium. Thus, according to Dr. Paul Mushak, a toxicologist and human health risk assessment specialist, this analysis conclusively rules out lead sulfate or lead chromate pigments. These pigments along with white lead carbonate pigments were the essential lead pigments used for residences. White lead carbonate was the principal pigment used, however. Because lead sulfate and lead chromate could be empirically excluded, Mushak opines to a reasonable degree of scientific and technological certainty that the houses contain lead paint made with white lead carbonate pigment.⁵ s 13. As noted, the houses where Thomas alleges he ingested lead paint were built in 1900 and 1905. During that period, use of lead paint for residences was common. Lead paint contained up to 50 percent lead pigment and maintained widespread use through the 1940s. The use and...