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Brenner v. American Cyanamid Co.

New York Supreme Court, Appellate Division
699 N.Y.S.2d 848 (1999)
ELI5:

Rule of Law:

The market share theory of liability, which allows a plaintiff to sue multiple manufacturers of a harmful product in proportion to their market share when the specific manufacturer cannot be identified, does not apply to cases involving injuries from lead-based paint.


Facts:

  • In 1926, the house where the Brenner family would later reside was built.
  • In January 1992, Richard and Terry Brenner moved with their son, Richard Brenner, III, who was less than two years old, into an apartment in the house.
  • By September 1992, Richard was diagnosed with severe lead poisoning, confirmed by blood tests and radiographs.
  • Family members observed Richard placing his mouth on window sills and ingesting paint chips.
  • An investigation by the Erie County Department of Health found 15 out of 43 tested sites in the apartment were positive for lead.
  • The Brenners alleged Richard sustained permanent injuries to his central nervous system from ingesting paint chips and dust containing white lead pigments.
  • The Brenners were unable to identify the specific manufacturer of the white lead carbonate present in the paint in their residence.
  • The Brenners sued several manufacturers who produced white lead carbonate between 1926, when the house was built, and 1955, when lead-based paint was no longer sold for interior use.

Procedural Posture:

  • Richard K. Brenner and Terry L. Brenner, on behalf of their son, commenced an action in the New York Supreme Court, a trial-level court, against various manufacturers of white lead carbonate.
  • The plaintiffs' amended complaint asserted several theories of collective liability, including market share liability.
  • The defendants moved for partial summary judgment, seeking dismissal of the collective liability causes of action.
  • The Supreme Court granted the defendants' motion in part, dismissing the enterprise and alternative liability claims, but denied the motion with respect to the market share liability claim.
  • The defendants appealed the trial court's denial of their motion to dismiss the market share liability claim to the Appellate Division of the Supreme Court.

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Issue:

Does the market share theory of liability apply to a lead poisoning case where the plaintiff cannot identify the specific manufacturer of the white lead carbonate pigment that caused the injury?


Opinions:

Majority - Hayes, J.

No. The market share theory of liability does not extend to lead poisoning cases. The court reasoned that the unique circumstances that justified the application of market share liability in the DES case, Hymowitz v Eli Lilly & Co., are absent here. The court identified several key distinctions: 1) Lead-based paint is not a fungible product like DES, as different paints contained varying types and amounts of lead pigment. 2) The relevant time period is an indeterminate 29-year span (1926-1955), unlike the narrow, identifiable gestation period in DES cases, making it impossible to fairly apportion liability among manufacturers who entered and left the market. 3) The pigment manufacturers did not have exclusive control over the risk, which was also controlled by paint manufacturers (who decided how much pigment to use) and property owners (who were responsible for maintenance). 4) Lead poisoning does not cause a 'signature injury' uniquely linked to it, unlike the specific cancer caused by DES. 5) There has been no legislative signal, as there was for DES, to create a remedy for plaintiffs unable to identify a specific manufacturer.



Analysis:

This decision significantly restricts the application of the market share liability doctrine in New York, effectively containing it to the unique facts of the DES litigation. By distinguishing lead pigment from DES based on factors like fungibility, time period identifiability, and exclusive control, the court sets a high bar for plaintiffs in other mass tort contexts. The ruling reinforces the traditional tort requirement of proving causation against a specific defendant, making it more difficult for plaintiffs injured by widely-used, non-fungible historical products (like lead paint or asbestos) to recover damages when the specific manufacturer is unknown.

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