Thomas Ex Rel. Gramling v. Mallett

2004 WI App 131, 685 N.W.2d 791, 275 Wis. 2d 377, 2004 Wisc. App. LEXIS 492
CourtCourt of Appeals of Wisconsin
DecidedJune 15, 2004
Docket03-1528
StatusPublished
Cited by4 cases

This text of 2004 WI App 131 (Thomas Ex Rel. Gramling v. Mallett) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas Ex Rel. Gramling v. Mallett, 2004 WI App 131, 685 N.W.2d 791, 275 Wis. 2d 377, 2004 Wisc. App. LEXIS 492 (Wis. Ct. App. 2004).

Opinions

FINE, J.

¶ 1. 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.1 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 companiés, 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 [382]*382against 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.2 In order to successfully pursue these claims under traditional tort law, however, she had to [383]*383first 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 [384]*384by the others. See id., 116 Wis. 2d at 180, 342 N.W.2d at 44. Additionally, both the diethylstilbestrol alleged to have caused the plaintiffs 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 "[ejvery 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:

[385]*385Every 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,

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Related

Estate of Sheppard v. Specht
2012 WI App 124 (Court of Appeals of Wisconsin, 2012)
Thomas Ex Rel. Gramling v. Mallett
2005 WI 129 (Wisconsin Supreme Court, 2005)
Thomas Ex Rel. Gramling v. Mallett
2004 WI App 131 (Court of Appeals of Wisconsin, 2004)

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Bluebook (online)
2004 WI App 131, 685 N.W.2d 791, 275 Wis. 2d 377, 2004 Wisc. App. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-ex-rel-gramling-v-mallett-wisctapp-2004.