## Facts

- Richard K. Brenner and Terry L. Brenner sued as parents and guardians of their minor child, Richard Brenner III, alleging injury from lead poisoning in a rented apartment.
- The family moved into an apartment in a house built in 1926; the child was under two years old.
- By September 1992, the child was diagnosed with severe lead poisoning, supported by blood tests and radiographic findings.
- Family members observed the child mouthing window sills and ingesting paint chips.
- A health-department investigation found significant lead hazards, including lead-based paint and dust with lead levels exceeding regulatory standards; testing identified white lead carbonate and other lead pigments.
- Because the premises had been painted repeatedly over decades, plaintiffs could not identify which manufacturer supplied the specific lead pigment(s) that caused the exposure, or when the relevant paint layers were applied.
- Plaintiffs sued multiple manufacturers alleged to have produced white lead carbonate for residential paint during a broad period (including when the house was built and into the mid-20th century), asserting collective-liability theories to address the identification problem.

## Issues

1. Whether market-share liability may be used in a lead-poisoning products-liability action to determine liability and apportion damages when the manufacturer of the injurious lead pigment cannot be identified.
2. Whether the market-share approach recognized in DES litigation should be extended to historically diffuse, non-fungible lead-pigment and residential paint exposures.

## Decision

- The Appellate Division, Fourth Department reversed the trial court’s denial of summary judgment on the market-share claim.
- The court held that market-share liability should not be applied to lead-pigment claims under these circumstances.
- Summary judgment was granted dismissing the market-share cause of action against the defendant manufacturers.

## Legal Principles

- Market-share liability in New York is a limited doctrine developed for exceptional conditions and is not automatically available whenever product identification is difficult.
- Extension of market-share liability depends on features that supported its use in DES cases, including product fungibility/chemical uniformity, a comparatively bounded marketing period, and a tight link between market share and the probability a defendant’s product caused the injury.
- Where a product category involves heterogeneous formulations, multiple applications over long periods, and exposure arising from layered historical uses, market share may not reasonably approximate causation and may relax causal requirements beyond acceptable limits.
- Broad shifts in causation and apportionment rules for complex, long-term toxic exposures are matters more appropriately left to legislative action than judicial expansion.

## Conclusion

The court declined to extend New York’s DES-based market-share liability to residential lead-pigment litigation, concluding that the long time span, variability of products and uses, and weak fit between market share and causation required dismissal of the market-share claim.


Brenner v. Am. Cyanamid Co., 263 A.D.2d 165, 699 N.Y.S.2d 848 (N.Y. App. Div. 4th Dep’t 1999)