A family with a small child moves often. The family has lived in two different apartment complexes in the past six months. While living in the apartments, the child, Hilary, unknowingly ingests white lead paint chips and lead paint dust from the walls and ceiling. As a result, Hilary is diagnosed with lead poisoning. Consequently, she suffered cognitive injuries related to high levels of lead in her blood.
The apartments were both built around 1920. In the state where Hilary and her family lived, lead paint became illegal for interior surfaces in 1976. So there is a 56-year period when the lead paint could have legally been put on the walls of the apartments. The apartments could have been repainted numerous times, and there is no way to determine which specific lead paint companies the paint came from. In fact, it is possible that multiple companies' paint affected Hilary.
Hilary's family was successful in suing the landlord and insurer of the apartments. In addition, the child's family brought litigation against the manufacturers of lead paint. Even though the paint was not illegal, the plaintiffs present evidence that the lead paint industry knew about the potential dangers and did not stop using the product.
Correctly answer each of the following questions, fully explaining your answers.
1. If the judge rules in favor of Hilary's family (in a market share liability case), who potentially would need to pay for the damages? Why?
2. In this case, the manufacturers of the lead paint knew about the toxic dangers of their product. However, they kept using the product until it was made illegal in 1976 and attempted to keep the dangers a secret from their customers. What effect, if any, does this have your analysis?
3. How should the market share theory be applied to this case by the court?