Thomas v. Mallett

• Citation: 275 Wis.2d 377,685 N.W.2d 791,2004 WI App 131
• Decision Date: 15 June 2004
• Docket Number: No. 03-1528.,03-1528.
• Parties: Steven THOMAS, a Minor, by his Guardian ad Litem, Susan M. Gramling, Plaintiff-Appellant, 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., and ConAgra Grocery Products Co., Defendants-Respondents.
• Court: Court of Appeals of Wisconsin

275 Wis.2d 377

2004 WI App 131

685 N.W.2d 791

Steven THOMAS, a Minor, by his Guardian ad Litem, Susan M. Gramling, Plaintiff-Appellant,¹ 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., and ConAgra Grocery Products Co., Defendants-Respondents.

No. 03-1528.

Court of Appeals of Wisconsin.

Submitted on briefs May 4, 2002.

Decided June 15, 2004.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peter G. Earle and Ellen R. Brostrom of Earle & Brostrom, LLP, Milwaukee and Robert J. McConnell and Fidelma Fitzpatrick of Motley Rice, LLC, Providence, Rhode Island.

On behalf of the defendants-respondents, the cause was submitted on the brief of Michael B. Apfeld and David G. Peterson of Godfrey & Kahn, S.C., Milwaukee and Philip H. Curtis and Bruce R. Kelly of Arnold & Porter, New York, New York.

An amici curiae brief was filed on behalf of Service Employees International Union, Wisconsin Commission on Occupational Safety and Health, Repairers of the Breach, Wisconsin Citizen Action, Wisconsin Education Association Council and its affiliate, Milwaukee Education Association, and Wisconsin Federation of Nurses and Health Professionals by Lynn M. Novotnak of First, Blondis, Albrecht & Novotnak, S.C., Milwaukee.

Before Wedemeyer, P.J., Fine and Brown, JJ.

¶ 1. FINE, J.

Steven Thomas, a minor born in 1990, appeals by his guardian ad litem from the trial court's order granting summary judgment dismissing his case against American Cyanamid Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries, Inc., SCM Chemicals, Inc., Sherwin-Williams Co., and ConAgra Grocery Products Co.² Thomas suffers from serious neurological disorders, which he claims were caused by his ingestion of paint pigmented with white lead carbonate. He blames the paint in two homes where he spent his early years: houses built in 1900 and 1905. Although he has recovered settlements from the houses' owners, he also seeks recovery from the defendant companies, which made white lead carbonate and, he contends, conspired over the years to obscure and conceal lead's dangers. He cannot, however, determine which of the defendant companies, if any, made the white lead carbonate in the paint he took into his system. Accordingly, he has sued them all under the "risk contribution" theory of liability adopted by Collins v. Eli Lilly Co., 116 Wis. 2d 166, 191-195, 342 N.W.2d 37, 49-51 (1984),cert. denied sub nom. E.R. Squibb & Sons, Inc. v. Collins, 469 U.S. 826, for diethylstilbestrol claims. Alternatively, he contends that his claims against the defendant companies pass summary-judgment muster on "conspiracy" and "enterprise liability" theories. The trial court declined to extend Collins to this case, and also rejected Thomas's other theories of recovery. Our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987)

. We affirm.

1. Collins.

¶ 2. The plaintiff in Collins had vaginal cancer that was caused by her mother's taking diethylstilbestrol during her pregnancy. Collins, 116 Wis. 2d at 173-174,342 N.W.2d at 41. Thus, the plaintiff in that case had a potential negligence claim against the drug's manufacturer and a potential strict-liability claim against the manufacturer and those who sold the drug to her mother.³ In order to successfully pursue these claims under traditional tort law, however, she had to first identify the manufacturer or seller of the specific pills her mother took, and this she was unable to do. Id.,116 Wis. 2d at 174, 180,342 N.W.2d at 41, 44. Faced with the certainty that the woman injured by her mother's use of diethylstilbestrol would have no "remedy at law for her injuries" unless the traditional identification-rule was modified, id.,116 Wis. 2d at 182,342 N.W.2d at 45,Collins relied on article I, section 9 of the Wisconsin Constitution ("Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character."), and decided to "fashion[] a method of recovery for the [diethylstilbestrol] case which will deviate from traditional notions of tort law." Collins, 116 Wis. 2d at 181,342 N.W.2d at 45.

¶ 3. As noted, the "deviation" was Collins's adoption of the "risk contribution" theory of liability for diethylstilbestrol cases. This relaxed the plaintiffs' burden in those cases to identify the manufacturer or seller responsible for the specific diethylstilbestrol pills their mothers took. Under this theory, the diethylstilbestrol plaintiff needed only to show that a "defendant drug company produced or marketed the type of [diethylstilbestrol] taken by [her] mother" in connection with her claims for both negligence and strict-liability. Id., 116 Wis. 2d at 195, 196, 342 N.W.2d at 51.

¶ 4. As Thomas points out in his extensive submissions, and, for the purposes of this appeal, assuming their verity, this case and Collins share, for many of the same reasons, the inability of the plaintiff to identify those who made and sold the specific substance alleged to have caused injury. Thus, in both Collins and here the substances produced or sold by one company are, as material to the possibility of tracing the manufacturer or seller, essentially the same as that produced or sold by the others. See id.,116 Wis. 2d at 180,342 N.W.2d at 44. Additionally, both the diethylstilbestrol alleged to have caused the plaintiff's vaginal cancer in Collins, and the white lead carbonate alleged to have caused Thomas's neurological disorders were made and sold by many companies long before the injury, making it impossible to trace specific manufacturers or sellers to the particular injury-causing product. See id.,116 Wis. 2d at 179-181,342 N.W.2d at 44.

¶ 5. The inability of an injured plaintiff to trace and identify the manufacturer or seller responsible for the specific substance causing injury, however, was not the ultimate reason Collins fashioned the "risk contribution" theory of liability for diethylstilbestrol cases, although that inability was a necessary predicate. As we have seen, the diethylstilbestrol plaintiff would have been without any remedy if the traditional rule was not modified. Collins explained:

We are faced with a choice of either fashioning a method of recovery for the [diethylstilbestrol] case which will deviate from traditional notions of tort law, or permitting possibly negligent defendants to escape liability to an innocent, injured plaintiff. In the interests of justice and fundamental fairness, we choose to follow the former alternative.

Id., 116 Wis. 2d at 181, 342 N.W.2d at 45. There is no such dilemma here.

¶ 6. As we have seen, article I, section 9 of the Wisconsin Constitution, as material here, preserves to "[e]very person" "a certain remedy in the laws for all injuries, or wrongs which he may receive in his person." The clause, however, also conditions this guarantee to considerations of existing law. Thus, it reads in full:

Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.

(Emphasis added.) Accordingly, article I, section 9, has never been interpreted to "`entitle Wisconsin litigants to the exact remedy they desire.'" Wiener v. J.C. Penney Co., 65 Wis. 2d 139, 150, 222 N.W.2d 149, 155 (1974) (quoted source omitted). To the contrary, the clause preserves to aggrieved persons only "`their day in court.'" Ibid. (quoted source omitted). Indeed, the clause "confers no legal rights." Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶ 43, 237 Wis. 2d 99, 122, 613 N.W.2d 849, 863. "Rather, art. I, § 9 applies only when a prospective litigant seeks a remedy for an already existing right." Ibid.

¶ 7. Here, unlike the situation in Collins, Thomas had "an already existing right"—a remedy for his injuries; as noted, he filed and then settled an action against the owner of one of the houses, and settled his claims against the other owner without filing suit. Indeed, an owner of a house "constructed prior to 1978 is under a common law duty to test for lead paint when the landlord knows or, in the use of ordinary care, should have known that the residence contained peeling or chipping paint." Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 55, 596 N.W.2d 456, 461 (1999). Moreover, "by 1989, the dangers of lead paint in residential housing was [sic] ... extensively known." Id.,228 Wis. 2d at 62,596 N.W.2d at 464. Although undoubtedly Thomas would like to have additional "deep pockets" to plumb, on top of the approximately $325,000 he received in settlement from both owners, he is not entitled "`to the exact remedy'" he might prefer. See Wiener, 65 Wis. 2d at 150,

222 N.W.2d at 155 (quoted source omitted). Accordingly, expansion of Collins's "risk contribution" theory of liability to producers and sellers of white lead carbonate is neither necessary nor appropriate.

2. Conspiracy.

¶ 8. A civil conspiracy in Wisconsin is "`a combination of two or more persons by some concerted action to accomplish some unlawful purpose or to accomplish by unlawful means some purpose not in itself unlawful.'" Onderdonk v. Lamb, 79 Wis. 2d 241, 246, 255 N.W.2d 507, 509 (1977) (quoted source omitted). "To state a cause of action for civil conspiracy, the complaint must allege: (1) The formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts." Id., 79 Wis. 2d at 247, 255 N.W.2d at 510.

¶ 9. Thomas has marshalled extensive documentation that...