Eat Paint, Get Rich

From today’s Opinion Journal:

The product-liability veto, though, caused the most consternation in business circles. It started with the case of J. Steven Thomas, who claimed to have eaten paint chips containing lead pigment in the early 1990s. At that time, he lived in rental housing built in the early 1900s, when the use of lead-based paint was common. Wisconsin did not ban lead-based paint until 1980.

Mr. Thomas, who had already recovered about $324,000 from his landlords’ insurers nevertheless sued seven lead pigment manufacturers for more damages. The case was brought despite his admission that he could not identify which companies manufactured the lead pigment used in the paint he allegedly ingested, and that he could not even identify whether any of the seven defendants ever manufactured the pigments involved.

Historically, plaintiffs in personal injury cases have almost always had to prove a specific product manufactured by a specific defendant actually caused an injury. But the Wisconsin Supreme Court did away with this rule in another July 2005 opinion written by a liberal Doyle appointee, which held that Mr. Thomas could prevail if he could prove that the defendants manufactured and marketed lead pigments, even if the pigments were not in the paint chips he allegedly ate. The premise for this liability is that the defendants participated in the industry that contributed to the risk to the plaintiff.

“The end result of the majority opinion,” argued one dissenting justice, is that “the defendants . . . can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.” Another dissenter wrote that the case “created a remedy for lead paint poisoning so sweeping and draconian that it will be nearly impossible for paint companies to defend themselves or, frankly, for plaintiffs to lose.”

Articles like this make me sick (or is that the lead paint I just ate?).

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