ELR Citation: ELR 20805
No(s). 92-2263 (1st Cir. Sep 10, 1993)

The court rejects application of the market share theory of liability in a lead poisoning case in which the plaintiff could not identify which, if any, of defendant paint manufacturers and marketers was the source of lead in the paint she ingested. Plaintiff suffered from lead poisoning as a direct result of ingesting lead paint from the walls and woodwork of the residence in which she lived the first six years of her life. The lead paint had been applied to the home at various times between 1917 and 1970. Plaintiff sought recovery from those companies that manufactured and marketed white lead used in the lead paints sold during that time period. The court first rejects plaintiff's request that the court certify to the Massachusetts Supreme Judicial Court questions regarding the viability of market share liability and concert of action as theories of recovery in this action. The federal district court's interpretation of Massachusetts law on these issues was reasonable, and it would be unfair to defendants to allow plaintiff to relitigate the issues in this suit because more than five years have passed since the plaintiff initiated these federal proceedings. The court next rejects application of the market share theory of liability to this case. To apply this theory in spite of plaintiff's inability to pinpoint even roughly the time the injury causing paint was applied to the residence would undermine the interest of the state's high court in holding wrongdoers liable only for the harm they have caused. Also, it would create a substantial possibility that tortfeasors would not be separated from innocent actors, which could lead to those defendants that were not in the lead business during the period in question being held liable for both more harm than they actually caused and harm to the plaintiff that they did not cause. Finally, the court rejects plaintiff's concert-of-action claim. Because there is no evidence that the manufacturers' actions had any role in causing lead paint to be applied to the walls of the residence, any finding of causation would be based on speculation.

Counsel for Plaintiff
Jonathan Shapiro
Stern, Shapiro, Rosenfeld & Weissberg
80 Boylston St., Ste. 910, Boston MA 02116
(617) 542-0663

Counsel for Defendants
Paul M. Pohl
Jones, Day, Reavis & Pogue
500 Grant St., 31st Fl., Pittsburgh PA 15219
(412) 391-3939