So Wisconsin Manufacturers & Commerce is overjoyed its "tort reforms" were signed into law by Governor Scott Walker this morning. According to WMC vice president James A. Buchen:
The Wisconsin Supreme Court created the ["risk contribution" theory] standard allowing plaintiffs to sue any lead paint manufacturer that sold paint in the state without proving which product caused the harm.That is simply not true. The Wisconsin Supreme Court did not "create" the standard at all but rather adopted it from other jurisdictions in 1984 in the case of Collins v. Eli Lilly & Co.:
We emphasize, however, that the plaintiff need not prove that a defendant produced or marketed the precise DES taken by the plaintiff's mother. Rather, the plaintiff need only establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., color, shape, markings, size, or other identifiable characteristics) of DES taken by the plaintiff's mother; the plaintiff need not allege or prove any facts related to the time or geographic distribution of the subject DES. If the plaintiff is able to prove these elements, the plaintiff may recover all damages from the one defendant.Mr. Buchen needs to read this opinion, including especially footnote 10, and stop dissembling about the court's 2005 lead paint decision.
Even the dissenters to the latter decision, whose beef was not with risk contribution per se but rather its application to the lead paint defendants, acknowledged that "this case clearly does not fall within the theory of risk contribution originally formulated in Collins."
Emphasis added. It's remarkable that Buchen could have overlooked this unequivocal acknowledgment, as other portions of that dissent have made their way into local conservative Republican mythology.
And those two dissenters included the still-incumbent Justice David Prosser, who "recognize[d] the validity of the risk-contribution theory of recovery articulated by this court in Collins." Quote, unquote.
Oppose the doctrine, but there's no need to lie about it. On the other hand, if and when WMC launches its advertising campaign* in support of Justice Prosser, some attentive reporter might ask WMC why it is endorsing such an enthusiastic proponent of risk contribution theory.
Indeed, were it not for Collins v. Eli Lilly & Co.'s "validity," there would have been no Thomas v. Mallett for WMC to complain about.
* Quite obviously Buchen's and WMC's obsessions with Thomas v. Mallett are focused on its author, Louis Butler, whose pending nomination to the federal bench is opposed by the WMC klatsch.
In 2008, WMC ran 3,069 television advertisements assailing a Butler dissent in a Sixth Amendment case, whose historical and legal principles were subsequently affirmed by Justices Scalia, Roberts, Thomas, Alito, and Kennedy, the first four, at least, being among the most revered figures in the conservative pantheon. The teevee spots represent a monument to sheer political irrationality and bad faith.