Market Share Liability In DES And Lead Pigment Cases: Bridging The Gap: A Suggested Proposal To Apportion Liability In Lead Pigment Cases.

A Case in Point.

Three years ago, Monica and her one-year-old daughter, Julie, moved into a rented three bedroom brick house constructed in the 1940's. On moving day, Julie was a bright, cheerful, active, and playful child. Approximately six months later, however, Monica began to notice that her daughter was often cranky and irritable. Over the next six months, Julie's irritability increased. Further, she never wanted to go outside to play.

When Monica mentioned these symptoms to Julie's pediatrician, he performed a physical examination. Although the doctor concluded that Julie was merely suffering from "the terrible twos," the child's crankiness and irritability persisted. In addition, she began suffering gastrointestinal problems and lethargy. Repeated trips to Julie's pediatrician revealed nothing further. Finally, more than two years after Julie and Monica moved into the house, Julie's pediatrician tested her blood. The test revealed that her blood contained highly elevated lead levels. Julie had become one of approximately 930,000 American children diagnosed with lead poisoning, a disease that can result in serious childhood developmental problems.

Following Julie's diagnosis, Monica immediately informed her landlord of the lead problem. Subsequently, the local health department tested the house for the presence of lead based paint, finding high levels of lead in its painted surfaces. Julie subsequently underwent treatment at a local hospital, and her lead levels decreased slightly. X-rays revealed the presence of lead in Julie's bones, and neurological tests revealed significant developmental delays.

Eventually, Julie and Monica retained a lawyer who offered two options: institute proceedings against the landlord or attempt to sue the manufacturers of the lead pigment used in the paint. Each option, however, was imperfect. Chief among these problems was the fact that the landlord's liability insurance might not cover Monica's claim. In addition, Monica neither knew which brand of paint was used in the house, nor could she identify the manufacturers of the lead pigment. The lawyer explained that if they were unable to identify the proper defendant, it was unlikely an action could proceed. Monica was understandably upset. Her daughter had suffered permanent damage because of a defective product, and she had no apparent cause of action to recover damages for the special schooling, training and medication that Julie would need throughout her life.

Unfortunately, Monica and Julie's case is not unique. The number of similar cases in the United States is probably in the thousands. Under current law, it is virtually impossible for plaintiffs to recover damages from manufacturers of dangerous lead pigment used in residential paint manufactured before 1978. This inequity is extreme and should not continue. Victimized children, innocent of any wrongdoing, are prevented from recovering damages because it is difficult to identify a specific defendant or defendants. Lead poisoning is a very real and widespread problem demanding that the legal system craft a viable solution. Just as medicine responds to a unique problem by developing new treatments and preventive measures, the law must respond to the problem of residential lead poisoning by developing fair and innovative theories of collective liability. This article examines collective liability theories, focusing on market share liability, and proposes a solution to the problem faced by victims such as Julie and Monica.

The Problem with Lead Poisoning.

The Center for Disease Control and Prevention ("CDC"), located in Atlanta, Georgia, considers childhood lead poisoning one of today's most serious societal childhood diseases. Lead poisoning is particularly detrimental to children under the age of six, because lead impedes development of a young child's brain and nervous system. Approximately 930,000 children in the United States under the age of six have elevated lead levels in their blood.

Elevated blood lead levels can lead to a variety of health problems, many of which are permanent. Lead primarily affects the neurological system, often resulting in decreased intelligence and ability to learn. Lead poisoning can also damage an individuals reproductive, cardiovascular systems, and renal systems as well as the bones, and gastrointestinal tract. At extreme levels (those in excess of 100 5g/dl), death may result.

The Scope of the Problem.

The federal government banned the use of residential lead- based paint in 1978. Millions of American homes, however, were constructed before the ban. Approximately seventy-seven million homes were constructed before 1980; fourteen million housed at least one child under the age of seven. Among these homes, approximately 12.5 million contained some lead-based paint.

These statistics clearly indicate that although the reported incidence of lead poisoning among young children is decreasing, the problem remains immense. With nearly one million known cases of childhood lead poisoning in the United States today, coupled with seventy-seven million homes containing some form of lead paint, it is clear that the problem of childhood lead poisoning is and will continue as a major social problem.

Under traditional tort liability theories, many of these children and their parents will have no legal recourse, due to their inability to determine which manufacturer caused the harm. As a result, they will have to rely on a collective liability theory for recovery.

COLLECTIVE LIABILITY THEORIES.

• Alternate Liability
  The first collective liability theory, "alternate liability" was adopted in the famous case of Summers v. Tice. In Summers, two members of a hunting party simultaneously fired their guns in the same direction. The plaintiff was shot in the eye and lip, but determining which of the two hunters had shot him proved to be futile. The court shifted the burden of proving the identity of the actual tortfeasor to the defendants. Accordingly, the court held that the defendants would be held jointly and severally liable if they were unable to exculpate themselves individually.
• Enterprise Liability
  "Enterprise liability", another form of collective liability is based on wrongdoing by an entire industry viewed as a single enterprise. In Hall v. E.I. DuPont Nemours, this theory was applied to explosives. In Hall, numerous children were injured in eighteen separate accidents involving blasting caps. The explosions destroyed most of the evidence which could have identified the manufacturer of the caps. The plaintiffs sued every national manufacturer of blasting caps, as well as the industry trade association, alleging that the defendants were jointly responsible for failing to place warning labels on the explosives.
  The Hall court held that plaintiffs could maintain a cause of action against the industry if:
  1. the defendants breached a duty of care owed to the plaintiffs,
  2. the plaintiffs proved a causal link between the group- created harm and the injuries,
  3. the plaintiffs proved beyond a preponderance of the evidence that it was the caps of at least one of the defendants that caused the injuries, and,
  4. that the breaches of duty were similar in nature and similar in time.
• Concert of Action
  A third form of collective liability is "concert of action." To recover under this theory, a plaintiff must demonstrate that a defendant engaged in a common plan or scheme to commit a tort. Courts have accepted concert of action theories in both diethylstilbestrol ("DES") litigation and in lead pigment litigation
  In Bichler, the plaintiff sued only one manufacturer of DES, Eli Lilly, even though the pharmacy dispensing DES to the plaintiff was supplied by 147 separate manufacturers of DES. In upholding a jury award of $500,000, the court discussed two discrete theories of concert of action: concerted action by agreement and concerted action by substantial assistance. The court after reviewing the record, found sufficient evidence to support either of these two theories.
  In Lead Industries, plaintiffs brought suit against five manufacturers of lead pigment, alleging that the manufacturers sold and manufactured lead-based paint for residential use despite their knowledge of its harmful effects. The court held that a manufacturer who "substantially contributes" to an injury due to agreement or cooperation with other manufacturers to conceal the dangers of lead pigment may be found jointly and severally liable.
• Market Share Liability
  The final form of collective liability is commonly referred to as "market share liability." Market share theories apportion liability according to a particular defendant's share of the market. Although courts have applied this theory primarily in the context of DES litigation, courts have promulgated various market share theories to apportion liability among industry defendants.

MARKET SHARE LIABILITY - A Simple Solution?

In General.
When a court endeavors to formulate a collective liability theory based, at least in part, on market share, it must address several key issues before determining whether the plaintiff will be able to proceed market share theory. The court must initially ascertain whether a plaintiff can recover against a particular defendant or set of defendants. The court must then determine the geographic scope of the market, in terms of its national, regional or local character. Finally, the court must also determine whether and under what conditions it will allow a defendant to exculpate itself. Against this general backdrop, various state courts have developed a range of theories on apportioning liability where plaintiffs fail to identify a manufacturer of a harmful or dangerous product.

Various Market Share Theories.

• California.
  A market share theory of collective liability was first articulated by the California Supreme Court in Sindell v. Abbott Laboratories. In Sindell, the plaintiff brought a class action against ten DES manufacturers. The trial court granted the defendants' demurrer to the complaint, dismissing the action because the plaintiff failed to identify which manufacturer produced the DES she ingested. On appeal, the California Supreme Court reversed, adopting what it characterized as an expansion of the theory of alternative liability first adopted in Summers.
  The Sindell court reasoned that although the principles of Summers were not be directly applicable to the facts of Sindell, courts may craft remedies to resolve product identification problems caused by the creation of such fungible goods in light of technological advances. The court stated that defendants who were negligent in the production and marketing of DES should bear the cost of the injury, rather than imposing the cost on innocent plaintiffs. In that regard, the court held that a plaintiff may proceed under a market share theory if:
  1. all defendants produced a drug from an identical formula,
  2. the manufacturer of the drug which caused the injury cannot be identified through no fault of the plaintiff; and
  3. the named defendants in the action comprise a "substantial share" of the relevant market.

If the plaintiff meets these requirements, liability will be apportioned among the named defendants according to each's respective market shares. Any named defendants, may, in turn, join other DES manufacturers. Further, a particular manufacturer can exculpate itself completely if it can prove that its product could not have caused the plaintiff's injuries.

The Sindell court failed to specifically address the issue of scope of the relevant market. Although the court acknowledged the difficulties in defining "the market" and determining market share, it declined to establish any fixed standards because the case was still in the pleading stage, and that issue was not yet ripe for decision.

• Wisconsin
  In Collins v. Eli Lilly Company, the Wisconsin Supreme Court faced the identical problem confronted by the Sindell court. Although the Collins court ultimately allowed the plaintiffs to proceed under a market share theory, the court rejected the Sindell theory, specifically because of the problem of determining the actual market share of each defendant. The court found that an accurate market share determination would be nearly impossible and a waste of judicial resources.
  The court, therefore, formulated what one commentator referred to as a "risk contribution theory." While the Collins decision concerned DES, the court clearly stated that it could be applied to other situations as well. Risk contribution theory requires the plaintiff to prove the following elements against a single defendant:
  1. the plaintiff-mother ingested DES,
  2. the DES caused her subsequent injuries,
  3. the defendant produced or marketed the type of DES ingested by plaintiff-mother, and
  4. the defendant's conduct in producing or marketing DES constituted a breach of a legally recognized duty.

The court emphasized that plaintiffs need not prove any facts related to the temporal or geographic market of DES. If the plaintiff proves the above elements, she is entitled to recover all damages. Moreover, if the plaintiff names only one defendant, that defendant is deemed responsible for all damages suffered. If however, the plaintiff names more than one defendant, the plaintiff may recover from each defendant a share of the damages proportionate to the percentage of liability assigned by the jury. The court provided a non-exhaustive list of factors to be considered in determining liability shares, including the following:

1. whether the drug company conducted pre-distribution safety tests;
2. the defendant's role in obtaining FDA approval of the product;
3. the defendant's market share in the relevant geographic area;
4. the defendant's role in marketing DES;
5. whether the defendant issued warnings regarding DES;
6. whether DES was produced after the defendant knew, or should have known, of the dangers of DES; and
7. whether the company took affirmative steps to reduce the danger to consumers.

Once all defendants are named or impleaded, the case can then proceed to trial under one of two theories: negligence or strict liability. The Collins court acknowledged that allocation of liability would be a difficult task for juries, but held that the risk contribution method constituted the best approach to ensure proportionate liability according to relative fault.
Lastly, the Collins court rejected the plaintiff's claim for punitive damages. The court held that because application of the risk contribution theory (or any other market share theory, for that matter) can never assess damages with the requisite degree of certainty, courts cannot award punitive damages to plaintiffs under this approach.

• Washington/Florida
  In 1984, the Washington Supreme Court adopted a market share theory modifying the Sindell approach. In Martin v. Abbott Labs., although the court characterized the Sindell approach as "conceptually attractive," it nevertheless rejected Sindell's holding. The court reasoned that the Sindell approach was unclear because it failed to define "substantial share of the market" and because it distorted market share theory by holding a substantial share of the market liable for 100 percent of the plaintiff's injuries. The court adopted the factors articulated in Collins and developed a variation on the Sindell test requiring plaintiffs to sue only one defendant.
  In addition, named defendants are presumed to have equal shares of the market, however they may implead other manufacturers to reduce their presumptive market share. A defendant may then exculpate itself by proving that:
  1. it did not produce the type of DES ingested by the mother,
  2. it did not market DES in the particular geographic market, or
  3. it did not market DES during the time period in question.

A defendant that cannot exculpate itself becomes part of the plaintiff's presumptive market and is presumed to have equal market shares. A defendant who remains in the presumptive market pool may introduce evidence to reduce its presumptive market share. If a defendant successfully proves a lower share, the remaining defendants' shares are adjusted upward so that the total market equals 100 percent. If all defendants can demonstrate a market share less than the presumptive market share assigned, the plaintiff may not recover 100 percent of any damages awarded. Finally, the court held that courts should define "the market" as narrowly as possible.
Florida, with minor variations, adopted this approach in Conley v. Boyle Drug Co. In Conley, the court held that prior to applying this theory, a plaintiff must show a genuine attempt to locate the actual manufacturer. Additionally, the use of market share theory was limited by the court to only those cases alleging negligence, specifically stating that the theory is not applicable in strict liability actions.

• New York
  New York adopted a broad and liberal market share theory in Hymowitz v. Eli Lilly. The Hymowitz court evaluated all collective liability theories and adopted a national market share theory. This theory requires the plaintiff to show that she ingested DES and as a result, sustained her injuries from DES use. This theory dispenses with the requirement that the defendant must have marketed the type of DES ingested by the plaintiff.
  A defendant's ability to exculpate itself under this theory is extremely limited because of the national market. The court reasoned that in a national market, liability is apportioned based on the overall risk, and not on a finding of causation in a single case. Defendants can only exculpate themselves if they can prove that they did not manufacture or market DES for pregnancy use. The court held that a defendant cannot exculpate itself, even if it appears that the defendant did not cause the plaintiffs' injuries.
  Finally, the court held that liability is several under national market theory. Although a plaintiff may collect less than 100 percent of the awarded damages, the court determined that the equitable trade off between limited exculpability (favoring plaintiffs) and several liability (favoring defendants) was fair.

Analyzing the Theories.
A fair and equitable application of market share theory favors neither plaintiffs nor defendants. When considering one of the market share theories, a court must examine at least four separate criteria common to all theories decide the case based on these criteria. The decisions a court makes on each of the individual criterion will favor either the plaintiff or the defendants, and, it is critical that the court balance these decisions to strike a fair balance between the litigants.

1. How Many Defendants Must be Sued?
   The first factor a court must consider when developing a market share theory is the number of defendants a plaintiff must sue. Several options are available. For example, a court can dictate that a plaintiff sue the entire market, sue a "substantial share" of the market, or sue only one defendant.
   With respect to market share theory, a court, in all fairness, cannot require that a plaintiff name every manufacturer in the market. No court has held this to be a prerequisite. Although the "substantial share" requirement seems to be a fair compromise standard, adopting this standard could lead to uncertainty regarding what constitutes a "substantial share." This may lead to inconsistent judicial interpretation. A court in State A, for example, might decide that fifty-one percent constitutes a substantial share, while a court in State B might feel that eighty percent represents a substantial share. Further, the Sindell decision itself offers no clear guidance to practitioners.
   The best option available to alleviate potentially inconsistent interpretations is to allow the plaintiff to name a single defendant. While this option is plaintiff-oriented, it can be balanced when considered in conjunction with the other criteria discussed below. Further, from a practical point of view, plaintiffs will almost certainly "find it preferable to sue as many defendants as can be identified as having possible liability."
2. Liability/Damages.
   The type of liability and the question of whether a plaintiff will necessarily recover 100 percent of the damages awarded are also critical factors for a court's consideration. Because of the close relation between these factors, they cannot be analyzed separately. Three separate types of liability are available for use in a market share theory: 1) joint and several liability; 2) a strict version of several liability, and; 3) a modified version of several liability.
   If liability is joint and several, the plaintiff can seek the entire amount of the damages from any one defendant. Then, that defendant will generally have a contribution action against the other co-defendants. Further, if liability is joint and several, the plaintiff will be able to collect 100 percent of the damages awarded.
   On the other hand, if the liability theory pursued is strict several liability, each defendant is only liable for damages assigned to it by the finder of fact. Under a strict several liability rule, the plaintiff is not guaranteed to recover 100 percent of the damages. This is particularly important in a market share context, where damages paid are apportioned according to the defendant's market share. Because a plaintiff is unlikely to prove damages caused by 100 percent of the market, or even name 100 percent of the market, a plaintiff is unlikely to collect 100 percent of the damages.
   The third option is modified several liability. The Collins and Martin courts adopted modified versions of several liability. The Martin court's presumptive market share is a plaintiff-friendly liability system. Under a presumptive share system, the plaintiff may be able to collect 100 percent of damages, unless each and every defendant in the presumptive market can prove that its actual market share is less than its presumptive share. Liability based on presumptive shares clearly favors plaintiffs. Presumptive share liability, however, disadvantages small-market defendants in particular.
   Another modified several liability system is the risk apportionment system adopted by the Collins court. Perhaps the most plaintiff-friendly system yet proposed, this type of liability system, does not use market share as a determinative factor. Consequently, this system guarantees a plaintiff the opportunity to recover 100 percent of the damages awarded.
   When considering liability and damages under a market share theory, courts must answer a fundamental question: Which party should bear the burden of proving market share? While the plaintiff usually bears the burden of proof, defendants almost certainly are in a better position to determine actual market share. Corporate defendants have access to sales data and possess the resources to collect, compile and analyze that data. Conversely, a plaintiff is not in the position to know the particulars of market share, nor does the plaintiff generally have the ability to assimilate the necessary data. In light of the fact that the plaintiffs in lead-based paint cases are innocent children and the defendants are large corporations that have likely profited from the sale of the dangerous product, public policy also favors shifting the burden of proving market share to the defendants.
3. Scope of Market.
   Courts must next consider the geographic scope of the market. Courts can adopt a definition "of" market that is as broad as possible (the national market concept of Hymowitz), or as narrow as possible (as suggested by Martin). From a practical standpoint, in many cases, there is little difference between the two approaches. If a court adopts the Martin (narrow market) approach, market share evidence may not be available for any market except a national market. It, therefore, makes little sense to choose an extremely narrow market and conduct months or years of discovery on market share, only to discover that an accurate determination of market share is impossible. Although in some instances reliable data may exist to precisely identify a narrow market, it makes better sense from a judicial resource standpoint to utilize a national market, because it is more likely that accurate national market data exists.
4. Exculpation.
   Finally, a court must consider a particular defendant's exculpation. Again, a range of options exists. A court can adopt a broad view of exculpation as demonstrated by both the Sindell and Martin decisions. Conversely, a court can limit exculpation to an extremely narrow set of circumstances as demonstrated by Hymowitz.
   While the Hymowitz court equated limited exculpation with a national market, limited exculpation was adopted primarily to balance against the court's decision to adopt strict several liability as part of its theory. A court could adopt a national market, and still allow a defendant to exculpate itself if it can prove that it could not have caused the damages. A court could also reach a middle ground by requiring a defendant to produce clear and convincing evidence that it could not have caused the injuries in question.

APPLICATION OF MARKET SHARE IN LEAD PIGMENT CASES.

Cases to Date.
Most courts that have been asked to apply market share liability in lead pigment cases have declined to do so. For example, the United States District Court for the District of Massachusetts addressed this issue in Santiago v. Sherwin-Williams Co, rejecting the application of market share liability in lead pigment cases. The court held that the lack of "signature injury" in these cases, the broad scope of the lead pigment market, and the fact that the defendants were bulk suppliers of raw material, and not the actual manufacturers of the hazardous product, precluded the application of a market share theory in lead pigment cases.

The court reasoned that because the purpose of market share theory is to eliminate proof of causation, and that because there is no signature injury related to the ingestion of lead, the question of causation will remain, thus rendering market share theories inappropriate in lead pigment cases. The court described the differences in market scope when comparing DES litigation to lead pigment litigation. In DES litigation, it is only necessary to determine the applicable market for a period of approximately nine months (the length of time of a woman's pregnancy). Conversely, in lead pigment litigation, it is often necessary to determine market shares in a temporal market spanning decades. Due to the fact that some defendants entered and exited the market during this time span, the court reasoned that juries would be unable to make an accurate determination of market shares beyond a preponderance of the evidence. Finally, the court agreed with the defendant pigment manufacturers' contention that because they were only bulk suppliers of the pigment, they could not control the ultimate use of their product.

Federal courts applying Pennsylvania law considered and rejected market share theories in lead pigment litigation in 1992 and 1993. The Hurt and City of Philadelphia courts surveyed Pennsylvania law on the subject of market share liability, and discovered only one trial court decision employing this theory. Because of the apparent reluctance of Pennsylvania courts to adopt a market share theory, the Hurt and City of Philadelphia courts concluded that the plaintiffs could not proceed under a theory of market share liability.

Market share liability in lead pigment litigation was most recently considered by the Supreme Court of Pennsylvania in Skipworth v. Lead Indus. Ass'n. In Skipworth, the court rejected the Sindell market share approach because the court found that the lead pigment market was far too expansive during the time period at issue and that lead pigment was not fungible.

The Skipworth court followed the reasoning of the Santiago court in determining that the lengthy time frame would virtually guarantees that certain pigment manufacturers might be held liable even though they could not have possibly committed the harm. Accordingly, the court held that the first prong of the Sindell test could not be met because not all of the named defendants were potential tortfeasors.

The court also concluded that lead pigment is not fungible. The court based this conclusion on evidence that tended to prove that differing formulae of lead paint resulted in various levels of lead internalization in the body. The court concluded that if it adopted Sindell, and two manufacturers had an equal market share, both would pay equal damages, without any consideration of the differing degrees of harm their products may have caused.

In summary, the court concluded that it could not adopt a market share theory, because to do so "would grossly distort [apportionment of] liability."

The only judicial decision to date allowing the plaintiff in a lead pigment case to proceed under market share theory is Jackson v. Glidden Co. Specifically, the Ohio Court of Appeals held that plaintiffs may proceed under the Sindell theory if they can prove that lead pigment is completely fungible, and if a substantial share of manufacturers are named in the suit. The Jackson opinion offers only a cursory analysis of market share theories, and bases its holding on a prior Ohio case, Goldman v. Johns-Manville. The Jackson court ruled that the plaintiff's allegations were sufficient to satisfy the Sindell and Goldman requirements, and denied the defendants' motion to dismiss.

Comparing and Contrasting DES and Lead Pigment.
Market share theories have been utilized primarily in the context of DES litigation. Courts have generally refused to apply market share or other collective liability theories in lead pigment litigation because of the supposed differences between lead pigment and DES. Courts have highlighted three main differences between DES and lead pigment that preclude the application of a market share theory in lead pigment cases.

• No signature injury.
  Courts dispute the assertion that ingestion of lead pigment produces a "signature injury." While science closely links development of the rare cancer, adenocarcinoma, to the ingestion of DES, a variety of other possible causes exist for the symptomatology exhibited by a child suffering lead poisoning including abuse during pregnancy and genetic defects.
• Indirect Suppliers.
  Next, courts differentiate lead pigment and DES on the basis that the manufacturer of lead pigment is not the direct supplier of the harmful product to the plaintiff. Courts tend to adopt the precipitous conclusion that because lead pigment manufacturers are merely bulk suppliers of lead, they have no control over or responsibility for the end use of their product.
• Broad Temporal Markets.
  Finally, and perhaps most significantly, courts point to the effect of the temporal scope of the market. While in a DES case, plaintiffs need only determine the relevant market for a period of approximately nine months; in a lead pigment case, the scope of the market will often span decades. Over time, companies enter and exit the lead pigment market. Courts have held that this uncertainty in the marketplace precludes the application of the Sindell market share theory.

Bridging the Gap: A Suggested Proposal to Apportion Liability in Lead Pigment Litigation.
The problems identified by courts that have criticized market share liability in lead pigment litigation are not insurmountable ones. Fair and equitable solutions exist for each problem presented. The "already-existing market share theories" employed in DES cases provide some solutions, while other legal principles furnish alternative solutions. Once plaintiffs overcome these obstacles, bridging the gap between DES cases and lead pigment cases is feasible.

Problem: Defendants are bulk suppliers; therefore lacking control over the ultimate use of lead pigment.
Solution: Allow actions to proceed under negligence theory only.

Defendants have argued that because they do not control the ultimate use of lead pigment, they cannot control the risks of the dangerous product. While that argument may be acceptable in a products liability action, it is insignificant if the action is grounded in negligence. Market share theories relax the requirement of direct causation. Therefore, lead pigment plaintiffs need not strictly prove this element. Knowledge of the danger and foreseeability of harm play an integral part in a negligence action. For liability to accrue, a defendant must know or should have known that its actions presented a risk; and the consequences of its actions or inactions must have been foreseeable.

Therefore, to proceed under market share theory and overcome causation problems, a lead pigment plaintiff must demonstrate:

• the existence of a duty,
• a breach of that duty,
• knowledge of the risk by the defendant pigment manufacturer, and
• that the harm suffered by the plaintiff was a foreseeable consequence of the manufacturer's negligent acts or omissions.

Problem: No signature injury.
Solution: Proof of injury causation.

Although a lead pigment plaintiff pursuing a market share theory of liability need not specifically identify the pigment manufacturer who caused the injury, plaintiff nevertheless must prove that the injuries suffered were caused by lead poisoning, and that the source of the lead was lead-based paint.

Problem: Broad temporal market.
Solution: A standard for expert testimony.

Perhaps the most vexing problem facing lead pigment plaintiffs desiring to proceed under market share theory is the breadth of the temporal market. If a court fails to adopt a presumptive share or risk contribution theory, potential lead pigment plaintiffs are placed at a distinct disadvantage when compared to DES plaintiffs.

As discussed earlier, the temporal market for DES is necessarily limited to nine months, whereas the temporal market in lead pigment cases may stretch across decades, and can be as long as a century or more. Nonetheless, it is likely that sufficient data regarding the lead pigment marketplace exists from which experts can draw valid conclusions concerning market shares over this broad period of time.

In Daubert v. Merrill Dow Pharmaceutical, the United States Supreme Court formulated a four-part test to ensure the relevance and reliability of scientific expert testimony:

• whether the scientific theory has been tested or is testable;
• whether the theory has been subjected to peer review;
• the known or possible rate of error associated with the theory; and
• whether the theory is generally accepted.

These factors were not intended to be exclusive, but were, nevertheless, intended to guide lower courts in determining the admissibility of expert scientific testimony. Although the Daubert court formulated a test that dealt with scientific testimony, the court did not specifically limit its applicate to scientific evidence alone.

Market share evidence in lead pigment cases is fundamentally economic data and can certainly be classified as technical. Courts have revisited the Daubert test, revising it to include technical economic testimony. Reformulations utilizing the Daubert factors, if applicable, require technical economic testimony to be based on valid statistical or economic methods. Furthermore, courts must consider the reliability of the data used by the expert in arriving at his conclusions. As one commentator stated, "experts must always be able to point to specific data on which their testimony is based."

If an expert's methods meet the requirements of this modified test, the expert's testimony is admissible, and any ultimate decision on market share is left to the finder of fact. Although the parties may dispute the expert's conclusions, the methods, not the conclusions, are the focus of any inquiry into the validity of expert testimony.

Application of the modified Daubert test to testimony in lead pigment cases eliminates the perceived problem of temporal market breadth, ensuring that an expert's testimony is not "junk economics."

Bridging the gap, a suggested proposal to apportion liability in lead pigment litigation.
Courts should allow plaintiffs to proceed with a case against manufacturers of lead pigment under market share theory. Plaintiffs must be restricted to negligence claims. The plaintiff must initially bear the burden of proving that exposure to lead-based paint caused the plaintiff's injuries. The plaintiff must then demonstrate that the defendant owed a duty to the plaintiff which the defendant breached. It is only when the plaintiff satisfies these threshold requirements that the proposed market share theory can substitute for the element of causation.

Under this proposed market share theory, the plaintiff is only required to name one defendant, although he may name more. In addition, the named defendant (or defendants) has the option to implead other defendants. An impleaded defendants must be available to present a defense to the court. If it is unavailable, the impleader defendant must stand in place of the absent defendant and present a defense on its behalf.

The relevant geographic market must be national. Defendants must be given the opportunity to exculpate themselves if they can show by clear and convincing evidence that their product could not have caused the plaintiff's injuries. Liability must be several, rather than joint. Any damages awarded must be apportioned according to the ultimate market share attributable to the defendants. By adopting these requirements, courts can adequately balance the interests of plaintiffs and defendants alike. Plaintiffs benefit from the standard of the national market, due to the increased likelihood that market share data will be available. Defendants benefit because they may be able to exculpate themselves, and even if they are unable to exculpate themselves, several liability limits liability to a percentage equal to their ultimately determined market share.

The last element of the lead pigment market share test presents the most difficult question; who bears the burden of proving the defendants' market shares? Should a plaintiff be required to prove the market share, or should the burden shift to the defendant to prove its own market share? Ultimately, comparing an innocent plaintiff with a negligent defendant requires application of the Collins system of presumptive market share. Regardless of whether a court ultimately charges the plaintiff or the defendant with the burden of proving market shares, a modified Daubert test similar to that discussed in Part V.3 will filter out statistics based on "junk economics."

Conclusion.

While no perfect solution to the problem of market share liability in lead pigment litigation exists, courts should realize the scope and nature of this very serious problem. The theory proposed in Part V attempts to do equity to plaintiffs and defendants alike by taking the strongest elements of "already-existing DES market share" theories and molding them to fit lead pigment litigation. Although not advocated as the ultimate solution, perhaps the proposed theory will provide a starting point on the path towards remedying the existing inequities. Without a legal remedy for the problem of lead poisoning, innocent children, like Julie, will continue to suffer damages with no opportunity to seek justice.

*article courtesy of Duquesne Law Review.