¶ 177. (dissenting). It is often said that bad facts make bad law. Today's decision epitomizes that ancient legal axiom. The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiffs injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Even though the injury in this case is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result of white lead carbonate, much less the type of white lead carbonate produced by any of the respective defendants. More importantly, he cannot prove when the supposed white lead carbonate that allegedly poisoned him was manufactured or applied to the houses in which he was supposedly lead poisoned. However, none of these facts seem to matter to the majority.
¶ 178. Subjecting the defendants in this case to liability under these circumstances amounts to an unwarranted and unprecedented relaxation of the traditional rules governing tort liability, and raises serious concerns of fundamental fairness, as the defendants will be unable to realistically exculpate themselves. The majority opinion not only creates the risk that liability may be wholly out of proportion with the culpability of each individual defendant; it raises a distinct possibility that some defendants may be held liable for an injury they did not and could not have caused. The majority seems content to run roughshod over established principles of causation and the rights of each defendant to present a defense and be judged based on its own actions. The majority's decision renders Wisconsin the *329only state to apply some form of collective liability in lead paint suits under similar facts.
¶ 179. While I recognize the validity of the risk-contribution theory of recovery articulated by this court in Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984), under the unique facts of that case, I wholly disagree with the majority's expansion of that theory to cover the present case. Because this case is factually distinguishable from Collins on several levels, the majority's expansion of Collins to this case is entirely inappropriate. Further, by applying risk-contribution theory to the facts of this case, the majority essentially adopts a version of risk-contribution theory explicitly rejected by the Collins court.
¶ 180. A legitimate system of law requires adherence to established legal principles, even if such adherence does not produce a result deemed desirable by the collective wisdom of four members of this court. Our common law used to require a plaintiff to prove four elements in order to recover under a theory of negligence: duty, breach, causation, and damages. Throughout the years, this court has essentially eliminated the requirement that a plaintiff prove the second element by holding that in Wisconsin, everyone owes a duty of reasonable care to the entire world. Alvarado v. Sersch, 2003 WI 55, ¶ 16, 262 Wis. 2d 74, 662 N.W.2d 350. Today, the majority proclaims that if a plaintiff is sympathetic enough and the "industry" of which a defendant was a part is culpable enough, a plaintiff may dispense with proof of the third element and recover against a party even though it has not been shown that the party reasonably could have contributed in some way to the plaintiffs actual injury. Simply put, the majority opinion *330amounts to little more than this court dictating social policy to achieve a desired result.1
I
¶ 181. I begin by discussing the facts in this case. The majority presents the reader with over 50 pages of so-called "facts" in order to construct an intricate tapestry of malfeasance and culpability on the part of the lead paint industry as a whole. In doing so, the majority attempts to conceal what is utterly lacking in the plaintiffs proof in this case: evidence of a reasonable connection between the conduct of each defendant and the plaintiffs injuries.2 See Collins, 116 Wis. 2d at 191 *331n.10 ("We... require it be shown that the defendant drug company reasonably could have contributed in some way to the actual injury."). Many of the majority's "facts" are simply irrelevant to the question of whether each individual defendant in this case can be said to have reasonably contributed to the plaintiffs actual injury.
¶ 182. Before discussing what Thomas can and cannot prove, a brief discussion of paint and the paint industry is in order.3 All paints include two basic components: the pigment and the vehicle. Pigment, such as white lead carbonate, imparts hiding power and protects the surface area. The vehicle allows the pigment to be spread and adhere to the surface to which it is applied. The vehicle also includes a drier and thinner. The industry defendants are being sued in their capacity as producers of paint pigment, specifically, white lead carbonate.
¶ 183. White lead carbonate was used in the United States since colonial times. Over the years, white lead carbonate was produced by no less than six different processes. As such, there was no single formula for white lead carbonate and white lead carbonate could be comprised of three different chemical compounds.4 These three compounds all differed in chemical composition, the amount of lead oxide they con*332tained, and pH value. Even with respect to a given formula, the amount of lead could vary by up to ten percent.
¶ 184. These formulas, in addition to having different chemical compositions and different concentrations of lead oxide, also possessed significant differences in physical properties, including differences in: specific gravity, bulking values, oil absorption, hiding power, and particle size and shape. These differences are crucial because: "[depending on the hiding power of the pigment used, the amount of lead pigment — and thus lead — could vary dramatically between batches equally capable of covering a specified surface area." (Emphasis added.)
¶ 185. Further, white lead carbonate was not sold generically; the market for white lead carbonate was extremely competitive. Each manufacturer possessed its own distinctive brand and label, and aggressively marketed its own version of white lead carbonate. For instance, "National Lead offered 'five different white-leads,1 stating that '[e]ach of the five has its own special combination of paint-making characteristics.1" Importantly, "paints with the same label or brand could vary significantly in lead content depending on the color or tint of the paint." (Emphasis added.)
¶ 186. We also note that white lead carbonate was not a material used exclusively by the paint industry. White lead carbonate was routinely utilized in the ceramics and pottery business in the first half of the twentieth century. Thus, several major customers of firms that produced white lead carbonate were not involved in paint manufacturing.
¶ 187. It is important to emphasize that the industry defendants are being sued in their capacity as manufacturers of white lead carbonate and not the *333finished product, paint. "Until the late nineteenth century, paint manufacturers and dealers did not sell paints — they sold ingredients or 'mixings' which the purchasers then mixed to make their own paints. Prepared paints were viewed as inferior in quality, particularly because the early ready-mixed paints often used inferior ingredients."
¶ 188. Thus, "painters in the early decades of the 1900s often had their own individual formulas or methods for mixing the paint that they thought was best, depending on what a specific job required." "Paint manufacturers, of which there were over 200 in the Milwaukee area alone between 1910 and 1971, decided which pigment types, combinations and amounts to use." "Large purchasers also sometimes had their own unique specifications." As such, in addition to the varying formulas and brands of pigments, "the relative amounts and concentrations of the pigments varied in different paint formulations." (Emphasis added.)
¶ 189. Further, lead paint contained lead from sources other than the pigment, as some painters used lead "as a drier or catalyst rather than as a pigment." "Paint formulation was, and still is, a highly individual undertaking." In short, "there was no one type of 'white lead paint.'"
¶ 190. We note that the record also indicates that the manufacturing market for white lead carbonate, in addition to being competitive, was quite fluid. Rather than generically referring to the "industry" as a whole, as does the majority, we examine each defendant's role in the production of white lead carbonate, as the plaintiff in this case is suing individual defendants and not an "industry."
¶ 191. Sherwin-Williams began the production of white lead carbonate in 1910 when it opened a plant in *334Chicago. In the 1930s, Sherwin-Williams shifted its emphasis to lithopone products. By 1937, almost none of Sherwin-Williams' interior paints contained white lead pigments. Sherwin-Williams ceased production of white lead carbonate by June of 1947.
¶ 192. Atlantic Richfield is successor in interest to Anaconda Lead Products Company (ALPC) and International Smelting and Refining Company (IS&R). ALPC began operating in Chicago in 1919 and began selling lead pigment, including white lead carbonate, in 1920. In 1936, ALPC was dissolved and acquired by IS&R. IS&R operated the Chicago plant until 1946. Its production of white lead carbonate during the war was greatly reduced, and it was required to stop making white lead carbonate for months at a time. IS&R sold the Chicago facility to the Eagle-Picher Company in 1946. IS&R merged with ALPC in 1973, which was then acquired by Atlantic Richfield in 1977.
¶ 193. The DuPont Company began manufacturing paint and paint pigments in 1917. DuPont manufactured and sold white lead carbonate from 1917 to 1924, although it did not sell white lead pigment to any other manufacturer. From 1917 onward, DuPont sold non-lead paint that competed with white lead pigments, including lithopone and titanium dioxide. DuPont did not have a retail store in Milwaukee and "never sold an interior trade sales paint that contained white lead pigment."
¶ 194. The SCM Corporation is successor in interest to The Glidden Company (Old Glidden). Old Glid-den was incorporated in 1917 and merged with SCM in 1967. SCM was subsequently acquired by another company and sold to a British company. Old Glidden purchased the Euston Company in Scranton, Pennsylvania, and began production of white lead carbonate in *3351924. Old Glidden produced white lead carbonate until 1958, when it sold the Euston facility. During the 1920s and 1930s, Old Glidden was the world's largest supplier of lithopone and a large manufacturer of titanium dioxide. Although Old Glidden was a member of the Lead Industries Association from 1924 until 1958, it did not participate in the White Lead Promotion Campaign.5
¶ 195. American Cyanamid is being sued based on its own production of white lead carbonate after 1971.
¶ 196. The dates the aforementioned companies were involved in the production of white lead carbonate is particularly significant given the time frame at issue in this case. The two residences where Thomas allegedly ingested lead paint, supposedly containing white lead carbonate, were built in 1900 and 1905, respectively. Majority op., ¶¶ 7-8. Lead paint was banned by Wisconsin in 1980. See § 657u, ch. 221, Laws of 1979 (creating Wis. Stat. § 151.01 (1980)). Thus, many of the defendants in this case were not participants in the white lead carbonate market for significant periods during this time frame. None of the above companies were manufacturing white lead carbonate when the houses in which Thomas resided were built. Almost all of the above companies had ceased production of white lead carbonate by 1950, approximately 30 years before the use of lead paint was banned in Wisconsin. These facts are of critical importance when considered in context of the other facts in this case.
*336¶ 197. In his amended complaint, Thomas admitted that he "is unable to identify the specific manufac-turei~, supplier and/or distributor of the Lead present in the residences in which he was exposed.t Moreover, Thomas admitted in his response to the defendants' interrogatories that he has no knowledge of when lead-based paint was applied to the houses where he allegedly ingested the paint, what brand of paint was applied, or who applied the paint. Thomas admits that one of the residences contained "18 distinct layers of paint of which 16 contained lead pigment. Oniy the first and eighth layers did not contain lead." Pet'r Reply Br. at 9. As will be demonstrated below, these facts are of critical importance and render this case completely distinguishable from Collins.
II
¶ 198. In addition to downplaying the significant facts of this case, the majority mischaracterizes the arguments of the defendants and engages in an unnecessary discussion of Article I, Section 9 of the Wisconsin Constitution. The majority states that with regard to Article I, Section 9, "[t]he import of [the Pigment Manufacturers' argument] is that where recovery has been had against one tortfeasor, all other tortfeasors are necessarily absolved." Majority op., ¶ 120. Further, the majority states that "[w]e have serious concerns with the Pigment Manufacturers' attempt to displace all of the blame for lead poisoning from its white lead carbonate pigment on landlords and what effect that will have on the adequacy of the plaintiffs remedy." Majority op., ¶ 115. This is a seemingly inaccurate characterization of the defendants' argument regarding Article I, Section 9, and serves only as a straw man for *337the majority to knock down and open the door to its expansive reading of Article I, Section 9.
¶ 199. Part of the rationale of the Collins court for adopting its variant of market share liability was that the plaintiff would be left without a remedy absent some theory of collective liability. See Collins, 116 Wis. 2d at 182. The defendants in this case, contrary to the majority's characterization, do not argue that Article I, Section 9 absolves them from liability. Rather, they argue "[t]he 'Right to Remedy' Clause of the Wisconsin Constitution Does Not Require Extension of Collins." Resp't Br. at 34 (emphasis added).
Article I, § 9 was material to the analysis in Collins only because the Court concluded that Therese Collins was entitled to a remedy at law for her injuries, and unless existing law were modified she would have no remedy against anyone. This case does not present comparable justification for modifying existing law, because Thomas had a remedy for his injuries against the landlords.
Resp. Br. at 36 (emphasis added). Nowhere do the defendants argue that this constitutional provision is "a vehicle to defeat the plaintiffs right to recovery for wrongs committed by one simply because some recovery has already been had against another." Majority op., ¶ 123.
¶ 200. The defendants simply contend that because the plaintiff in this case has had a remedy against the landlords, Collins' rationale concerning Article I, Section 9 does not apply, and thus, there is no comparable justification for this court to fashion a remedy to allow Thomas to recover. The defendants do not argue that they should be "absolved" from liability because Thomas has recovered from his landlords. They merely state that because he has had such a recovery, the *338rationale of Collins does not apply, and Thomas should have to proceed under the normal rules of causation in tort law. Seeking to be judged under the normal tort rules of liability hardly equates to asking this court to use a constitutional provision to shield parties from liability.
¶ 201. Rather than take the defendant's arguments at face value, the majority continues its pattern of rushing to judgment and labeling the defendants in this case as wrongdoers by mischaracterizing their argument to the level of absurdity. In doing so, it unnecessarily introduces confusion into our Article I, Section 9 jurisprudence by insinuating that this provision requires the court to fashion a recovery for Thomas because he has suffered two separate wrongs.
¶ 202. Article I, Section 9 of the Wisconsin Constitution provides:
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; 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.
¶ 203. The majority ignores that in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 43, 237 Wis. 2d 99, 613 N.W.2d 849, this court recognized that although "[i]t is possible to mine the pronouncements of Wisconsin courts for evidence that art. I, § 9 creates rights, or that it authorizes courts to fashion rightsf,]... this court has stated that art. I., § 9 confers no legal rights." (citing Roberta Jo W. v. Leroy W, 218 Wis. 2d 225, 238, 578 N.W.2d 185 (1998); Tomczak v. Bailey, 218 Wis. 2d 245, 262, 578 N.W.2d 166 (1998); Makos v. Wis. Masons Health Care Fund, 211 *339Wis. 2d 41, 79, 564 N.W.2d 662 (1997)(Bradley, J., dissenting); Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 189-90, 290 N.W.2d 276 (1980)(emphasis added)).6 "Rather, art. I, § 9 applies only when a prospective litigant seeks a remedy for an already existing right." Id. In other words, "[t]he right-to-remedy clause thus preserves the right 'to obtain justice on the basis of the law as it in fact exists.1" Id. (quoting Mulder, 95 Wis. 2d at 189).
¶ 204. This understanding of Article I, Section 9, as expressed in Aicher, comports with how the provision has been understood since the time of Wisconsin's statehood. In McCoy v. Kenosha County, 195 Wis. 273, 276, 218 N.W. 348 (1928), this court rejected the plaintiffs contention that through Article I, Section 9 "there is secured by our state constitution to persons such as the plaintiff infant and the plaintiff parent, absolute rights to recover against any one causing by negligence such respective injuries." Further, we rejected the contention that this provision of our constitution
was a gift of, a creation of, or a recognition of rights to a certain remedy for all injuries or wrongs to one's person, property, or character instead of being merely a solemn assurance that, conformably to the laws, a person should have his remedy for such wrongs or injuries as were, at the time of its adoption, recognized by the common law, or should thereafter be recognized, as permitting recovery in actions at law or proceedings in equity.
Id. at 276-77 (emphasis added).
*340¶ 205. The court further recognized that Article I, Section 9 was not intended to remove the common-law limitations on recovery in tort:
To hold, as now argued by appellants, that there is shown the desire by the founders of this commonwealth, through the adoption of its constitution, to sweep away all the old doctrines and previously recognized limitations upon the so-called natural rights of the individual, as such limitations had been found in the old world and in this country, prior to its adoption, would indeed effect quite a revolution in our present concepts of the rights and obligations of individuals to each other....
Id. at 277. In other words, to interpret Article I, Section 9 in such a manner so as to guarantee a right of recovery anytime a plaintiff cannot satisfy the elements of his cause of action would essentially open the door for the abolition of all limitations on tort recovery.
¶ 206. Thus, Article I, Section 9 does not compel the court to allow recovery in any particular case or require a court to disregard traditional common-law limits on recovery in tort:
We started off in our legislative and judicial history with a very definite attitude that neither this particular article nor any other of our constitution had any such a sweeping away of and radical departure from many common-law principles and rules, many important ones of which ... were more or less denials of or limitations upon what would be within the broad and general field embraced in the term "natural and proclaimed rights of the individual to life, liberty, and security in person, property, and character" — such, for instance, as the defense of absolute or conditional privilege in slander or libel; instances of injury to feelings alone; wrongs between parent and child; mere threats; the defenses in *341actions for malicious prosecution; the doctrines of contributory negligence in personal injury actions as well as in master and servant cases .... In all of the above situations, however severe the injuries might actually have been to person, property, or character, organized society had for a long time and has continued to refuse to recognize rights to legal redress.
Id. at 278.
¶ 207. The phrase "conformably to the laws" in Article I, Section 9 relates only "to a recognized, long established system of laws existing in the several states adopting the constitution...." Id. at 277. In other words, the phrase refers to the law as it exists, rather than "an abstract justice as conceived of by the judge . . . ." Dep't of Agric. v. McCarthy, 238 Wis. 258, 270, 299 N.W. 58 (1941). Simply put, this court has repeatedly recognized that Article I, Section 9 was never intended to allow this court to jettison the common-law limitations on recovery anytime a particular plaintiff was unable to satisfy those requirements. Interpreting Article I, Section 9 in so broad a fashion would render our legal system standardless and convert it into an ad hoc system of liability where the rules are subject to change in every case.
¶ 208. As will be more fully discussed below, by invoking Article I, Section 9 to expand Collins well beyond the unique circumstances of that case, the majority has "effect[ed] quite a revolution in our present concepts of the rights and obligations of individuals to each other[,]" McCoy, 195 Wis. at 277, and embarked on a "radical departure from many common-law principles and rules" that serve as limitations upon a plaintiffs right to recover in tort. Id. at 278.
*342HH HH HH
¶ 209. The majority concludes that the risk-contribution theory of liability adopted in Collins should be extended to lead pigment manufacturers, majority op. ¶ 3; however, there are several substantial factual distinctions between this case and Collins that render application of this theory completely inappropriate. These distinctions include: 1) a much longer time frame for when the product alleged to have caused injury may have been manufactured and distributed; 2) the plaintiffs inability to prove what product he ingested; 3) the lack of a signature injury associated with the product alleged to have caused injury; 4) the defendants' lack of exclusive control over the risk posed by the product; 5) a raw material utilized in an unintended fashion rather than a finished product utilized for its intended purpose; and 6) the lack of fungibility between variants of the product alleged to have caused injury. Because of these factual distinctions, applying Collins to the facts of this case results in a de facto adoption of a theory explicitly rejected by Collins and an unjustified and unprecedented departure from traditional tort law principles of causation.
¶ 210. The Collins court created a unique theory of liability for plaintiffs who were injured as a result of exposure to the drug DES in útero. Collins, 116 Wis. 2d at 177. Essentially, the theory articulated in Collins relaxed the plaintiffs burden of proof in regard to causation; as such, it allowed DES plaintiffs to proceed with an underlying tort claim when they could not prove that any particular defendant's tortious conduct was the proximate cause of their injury. See id. at 193-94. Instead, the plaintiff was required to "establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., color, shape, mark*343ings, size, or other identifiable characteristics) of DES taken by the plaintiffs mother." Id. at 194.7 However, even under the relaxed causation standards it announced, the Collins court still required that the plaintiff prove "that the defendant drug company reasonably could have contributed in some way to the actual injury." Collins, 116 Wis. 2d at 191 n.10. By applying Collins to the facts of this case, the majority virtually eliminates this essential requirement. In light of the substantial factual distinctions set forth below, it simply cannot be said that the defendants in this case could have reasonably contributed to Thomas's injuries. The majority can "embrace" this requirement from Collins all it wants, majority op., ¶ 135 n.43, but, in the end, the majority never explains how Thomas can prove, under any interpretation of the facts, that the white lead carbonate manufacturers could have reasonably contributed to his injury. By applying risk-contribution theory to this case, it is clear that the majority opinion greatly expands Collins beyond its intended scope and will result in absolute liability for manufacturers of raw materials by creating an irrebuttable presumption of causation.
*344¶ 211. The Collins court relaxed the plaintiffs burden of proof because she was "unable to identify the precise producer or marketer of the DES taken by her mother due to the generic status of some DES, the number of producers or marketers, the lack of pertinent records, and the passage of time." Id. at 177. In particular, the DES plaintiff could not specifically locate the manufacturer of the particular DES drug ingested by her mother because DES was produced in generic form and DES variants were fungible and possessed a chemically identical formula. Id. at 180. "[0]ften pharmacists would fill DES prescriptions from whatever stock they had on hand, whether or not a particular brand was specified in the prescription." Id. Furthermore, "as many as three hundred drug companies produced or marketed DES during the twenty-four years DES was on the market, with different companies entering and leaving the market throughout this period," and these companies may not have kept or been able to locate the pertinent records at to what type of DES they produced. Id.
¶ 212. Due to this unique factual situation, the Collins court "chose to adapt, rather than adopt, the market share theory[,]" first approved by the California Supreme Court in Sindell v. Abbott Laboratories, 607 E2d 924 (Cal. 1980). 2 David G. Owen et al., Madden & Owen on Products Liability § 24:7, at 665 (3d ed. 2000) [hereinafter Madden & Owen].8 The Collins court formulated a slightly altered theory of market share *345liability, called the risk-contribution theory. Collins, 116 Wis. 2d at 191 n.10.
¶ 213. Importantly, the Collins court explicitly rejected a broader theory of risk contribution that would have held manufacturers of DES liable without regard to whether they produced the product during the nine months the mothers were exposed to it. See Collins, 116 Wis. 2d at 191 n.10. This theory, proposed by Professor Glen O. Robinson, contended that "the plaintiffs damages should be apportioned 'among all defendants that created unreasonable risks according to the magnitude of the risks they created.'" Id. (quoting Glen O. Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va. L. Rev. 713, 755 (1982)). The Collins court, although adopting a form of risk-contribution theory, rejected Professor Robinson's broad theory of liability:
Although we find Robinson's "risk contribution" theory sound to the extent it recognizes that all DES drug companies contributed in some measure to the risk of injury, we do not agree that this is a sufficient basis in itself for liability. We still require it be shown that the defendant drug company reasonably could have contributed in some way to the actual injury.
Id. (emphasis added). In other words, Collins held that it *346is not enough for the plaintiff to prove that the defendant contributed to the creation of the risk to the general public; the plaintiff must further prove that the defendant reasonably could have contributed to the actual injury.9
¶ 214. The majority has completely disregarded this limiting language of Collins in its analysis of Thomas's case. See majority op., ¶ 135 ("[T]he record easily establishes the Pigment Manufacturers' culpability for, at a minimum, contributing to creating a risk of injury to the public."). In so doing, the majority has expanded the Collins theory far beyond its original intent, and its opinion is tantamount to applying the theory of risk contribution that Collins explicitly rejected.10
*347¶ 215. The Collins court noted that its "method of recovery could apply in situations which are factually similar to the DES cases." Id. at 191. However, there are several substantial factual distinctions between this case and Collins that make the majority's extension of Collins a drastic departure from both the original theory of liability articulated by this court and the great weight of authority in other jurisdictions. See Brenner v. American Cyanamid Co., 263 A.D.2d 165, 169 (N.Y. App. Div. 1999) (citing the following cases that have also "refused to apply the market share theory to lead poisoning cases[:]" Jefferson v. Lead Indus. Ass'n, 930 F. Supp. 241 (E.D. La. 1996), aff'd. 106 F.3d 1245 (5th Cir. 1997); Santiago v. Sherwin Williams Co., 3 F.3d 546 (1st Cir. 1993); City of Philadelphia v. Lead Indus. Ass'n, 994 F.2d 112 (3d Cir. 1993); Hurt v. Philadelphia Hous. Auth., 806 F. Supp. 515 (E.D. Pa. 1992); Skipworth v. Lead Indus. Ass'n, 690 A.2d 169 (Pa. 1997)). See also, Richard E. Kaye, Annotation, "Concert of Activity," "Alternate Liability," "Enterprise Liability," or Similar Theory as Basis for Imposing Liability Upon One or More Manufacturers of Defective Uniform Product, in Absence of Identification of Manufacturer of Precise Unit or Batch Causing Injury, 63 A.L.R. 5th 195, 269-74 (1998) (collecting cases). To invoke risk-contribution theory under a case so factually distinct from Collins is not simply a "straight application" of Collins, majority op., ¶ 163 n.51; rather, in light of the following substantial factual distinctions, the majority opinion clearly extends Collins beyond the facts of that case.
¶ 216. The first major distinction between Collins and this case is that the time frame of Collins was dramatically narrower than the time frame in this case. Collins involved a limited nine-month time frame be*348tween conception and birth when the plaintiffs mother took the DES that caused her injury. Collins, 116 Wis. 2d at 174. The plaintiff knew when her mother ingested the drug and thus when the product was sold. See id. Additionally, DES was produced and marketed for 24 years. See id. at 179.
¶ 217. In contrast, this case concerns a substantially greater time frame of 75 to 80 years. This time frame runs from the years the two houses at issue were built — 1900 and 1905 — to the year Wisconsin banned the use of lead paint — 1980. Each defendant participated in the white lead carbonate market during different periods of time. However, Thomas has no idea when the alleged injury-causing paint may have been applied to the interior of the two houses in which he lived from 1990 to 1994. The plaintiffs inability to pinpoint a workable timeframe during which the injury causing paint was applied is further exacerbated by the fact that one of the houses contained 18 distinct layers of paint, some of which did not even contain lead.
¶ 218. As one learned products liability treatise aptly notes: "The greater the span of time within which the potentially injury-causing product was sold, the less suited market share liability will be." Madden & Owen § 24:7, at 663. Likewise, the Pennsylvania Supreme Court, in a factually similar case, noted:
The difficulty in applying market share liability where such an expansive relevant time period as one hundred years is at issue is that entities who could not have been the producers of the lead paint which injured [the plaintiff] would almost assuredly be held liable. Over the one hundred year period at issue, several of the pigment manufacturers entered and left the lead paint market. Thus, application of the market share theory to this situation would virtually ensure that *349certain pigment manufacturers would be held liable where they could not have been a potential tortfeasorf.]
Skipworth, 690 A.2d at 173 (emphasis added).
¶ 219. In Santiago, 3 F.3d at 550, the First Circuit refused to apply market share theory of liability in a lead paint case, in part, because of "plaintiffs inability to pinpoint with any degree of precision the time the injury-causing paint was applied to the house." The plaintiff brought an action for various claims against the "manufacturer[s] and marketer[s of] all, or virtually all, of the white lead used in the lead paints sold in the United States between 1917 and 1970." Id. at 547. She alleged that she had ingested lead paint applied to the interior of her house at various times over this 53-year period. Id. The First Circuit affirmed the district court's grant of summary judgment to the defendants, reasoning in part:
[Sleveral of the defendants were not in the white lead pigment market at all for significant portions of the period between 1917 and 1970, and therefore may well not have been market suppliers at the time the injury-causing paint was applied to the walls of the plaintiff's home. This, of course, raises a substantial possibility that these defendants not only could be held liable for more harm than they actually caused, but also could be held liable when they did not, in fact, cause any harm to plaintiff at all.
Id. at 551.
¶ 220. The reasoning of Skipworth and Santiago is equally applicable to this case. As noted in Section I, many of the defendants in this case were not participants in the white lead carbonate market for significant periods of time from 1900 to 1980. For instance, Sherwin-Williams only produced white lead carbonate *350for a period of 37 years and American Cyanamid did not produce lead pigment until after 1971. Significantly, DuPont manufactured white lead carbonate for a total of seven years.
¶ 221. If the paint Thomas ingested was applied before the 1920s, several of the defendants in this case could not have possibly produced the lead pigment that allegedly caused his injuries. Likewise, several defendants would have complete defenses if the paint Thomas ingested was applied in the latter portion of the twentieth century. However, Thomas has no idea when the paint he ingested was applied to his residences. The defendants are in no better position than Thomas to acquire this information. Liability for a company like DuPont, which produced the allegedly offending product for a mere fraction of the relevant time frame, can be based only on pure speculation and conjecture that its product caused Thomas's injury.
¶ 222. Thomas's inability to identify a narrow time frame to apply the Collins risk-contribution theory is dispositive because without a definitive time frame, the defendants will be unable to prove that they did not produce the injury-causing product in question. Collins specifically allowed a defendant to exculpate itself by proving "that it did not produce or market the subject DES either during the time period the plaintiff was exposed to DES or in the relevant geographical market area in which the plaintiffs mother acquired the DES." Collins, 116 Wis. 2d at 198. Here, the plaintiff cannot limit the applicable time frame to any reasonable or workable period for the defendants. In essence, the majority creates an irrebuttable presumption of causation in this case and extends Collins to a point where every paint pigment manufacturer that produced white lead carbonate at one time or another is absolutely liable because there is no realistic opportunity for these *351manufacturers to prove that they did not make the product that injured the plaintiff.11 In the words of Collins, Thomas cannot demonstrate that the paint manufacturers "reasonably could have contributed in some way to the actual injury." Id. at 191 n.10. The majority's opinion is so extreme that it essentially revives the broad risk-contribution theory that Collins expressly rejected. See id.
¶ 223. A second vital distinction between this case and Collins is that Thomas cannot prove that he ingested white lead carbonate.12 One of the prerequisites to the utilization of the Collins risk-contribution theory was proof "that the plaintiffs mother took DES." Collins, 116 Wis. 2d at 193. This fact alone should preclude extension of Collins because Thomas cannot demonstrate to a reasonable degree of scientific certainty what product allegedly caused his injury. Thomas is not suing lead paint manufacturers; instead, the defendants are being sued for manufacturing raw mate*352rials, white lead carbonate pigments, later incorporated into paints. While some defendants also produced lead paint, those that did are only being sued in their capacity as manufactures of this component product. In this case, Thomas simply cannot prove that white lead carbonate, as opposed to some other type of white lead pigment, or other leaded ingredient of paint, caused his injuries. While he may be able to prove that he ingested lead paint, he has not presented proof sufficient to overcome summary judgment that his injuries are attributable to the product for which the defendants are being sued for producing.
¶ 224. Ultimately, all Thomas can prove is that he has symptoms of lead poisoning and that white lead carbonate was used in some types of white lead paint. Although the defendants conceded, for purposes of their summary judgment motion, that Thomas "can prove that he was injured by lead ingestion [and] that his source of lead ingestion was lead paint[,]" they never conceded that Thomas's injuries were caused by white lead carbonate pigment.13 To the contrary, they clearly argued that Thomas "cannot prove that he ingested white lead carbonate and not some other form of lead pigment." Again, I emphasize that the defendants are being sued in their capacity as producers of white lead carbonate and not simply manufacturers of lead paint. The majority conveniently ignores Thomas's own admissions regarding his lack of proof with regard to the type of lead product that caused his injuries. For example, in their second set of interrogatories, the defendants inquired:
*353State whether you can identify by chemical formula, name, or composition the particular type or types of lead pigment (e.g., white lead carbonate) contained in the paint in that building or other property, and if you are able to do so, identify each particular type or types of lead pigment present in that building or other property.
Thomas answered: "No." The defendants further inquired:
State whether you know the chemical formula, name, or composition of the particular type or types of lead pigment (e.g., white lead carbonate) contained in the paint Steven Thomas is claimed to have ingested or inhaled at that building or other property, and if you do know, specify each type or types of lead pigment you claim he ingested.
Thomas answered: "No."
¶ 225. The majority relies on the testimony of two of the plaintiffs experts: Robert Dragen, an electron microscopist who analyzed paint samples from Thomas's residences; and Dr. Mushak, a toxicologist. Majority op., ¶ 12. According to the majority, this testimony is sufficient to create an issue of fact as to whether Thomas ingested white lead carbonate because Mr. Dragen's analysis found no trace of sulfur or chromium in the paint samples and lead sulfate, chromate, and carbonate "were the essential lead pigments used for residences." Majority op., ¶ 12. The majority notes Dr. Mushak testified that based on this evidence and a process of elimination analysis, the houses where Thomas lived contained white lead carbonate. Id.
¶ 226. Reliance on this testimony is problematic for several reasons. First, Mr. Dragen did not "render any kind of opinion regarding any chemical compounds *354in the paints [he] analyzed[.]" Second, Mr. Dragen was not able to offer any opinions as to when the paint he analyzed was applied. Id.
¶ 227. Dr. Mushak's testimony is also highly problematic. Dr. Mushak's supplementary affidavit concluded, based on Mr. Dragen's analysis, that white lead carbonate was "the only likely" lead pigment Thomas ingested. This conclusion was based on the following reasoning: "the absence of detectable sulfur and chromium (0.05%) conclusively rules out any use of lead sulfate or lead chromate as lead pigments in these layers and further rules in basic lead carbonate." This reasoning was based on the assumption that white lead carbonate "was the overwhelming form of lead in [interior painting] pigments."
¶ 228. However, this final assumption was based on testimony concerning the market share of various white lead pigments that one Dr. Lawrence White provided in Brenner, 263 A.D.2d 165. However, the court in Brenner rejected this form of analysis noting: "Plaintiffs' own expert agreed that white lead carbonate accounts for only approximately 80% of the lead in all lead pigments used for interior paints between 1926 and 1955. The remaining 20% of the lead pigments found in interior paints may have been manufactured by defendants not named in this litigation." Id. at 171.
¶ 229. Significantly, the record reflects that a variety of leaded pigments were used in interior painting. These included: "basic lead carbonate[,] basic lead sulfate,. . . red lead, lead chromates, leaded zinc oxides, lead silicates, lead titanates, [and] litharge . .. ." Further, as previously noted, some painters utilized mixtures of paint that contained lead-free pigment but contained leaded dyers or thinners. Thus, the possible *355sources of lead in the paint Mr. Dragen analyzed were not limited to lead carbonate, sulfate, or chromate.
¶ 230. Dr. Mushak also conceded that Dr. White's market studies were limited only to the years 1937-1945. Here, the relevant time period is from the time the houses in which Thomas lived were constructed — 1900 and 1905 — until lead paint was banned — 1980—roughly 80 years. Finally, when pressed at his deposition, Dr. Mushak admitted that he could not say "whether or not any of the lead that was in Steven Thomas was caused by some other form of lead other than white lead carbonate[.]" As he explained: "All I can go with is if ninety-nine percent of typical interior paints were basic lead carbonates and Steven Thomas shows up eating interior lead paint.. . I would say that... he probably ingested basic lead carbonate."
¶ 231. Numerous courts have held that this type of process of elimination theory of causation using generalized statistics is not sufficient as a matter of law to create an issue of fact as to what type of product caused the plaintiffs injury, especially when the analysis fails to account for other possible sources of the injury. "[G]eneral statistics do not establish causation in a specific case." Doe v. United States, 976 F.2d 1071, 1087 (7th Cir. 1992). In Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 566-67, 597 N.W.2d 744 (1999), this court accepted the circuit court's conclusion that a similar process of elimination theory of causation "left" exposure to certain chemicals as the actual cause of an injury" 'simply wrong as a matter of science and logic.'"
¶ 232. Similarly, in Smith v. Rapid Transit, Inc., 58 N.E.2d 754 (Mass. 1945), the Supreme Judicial Court of Massachusetts held that the plaintiff had failed to create a jury question as to the ownership of *356the bus that injured her by relying on the fact that the defendant operated the only bus franchise on the street in question:
While the defendant had the sole franchise for operating a bus on Main Street, Winthrop, this did not preclude private or chartered buses from using this street; the bus in question could very well have been one operated by someone other than the defendant.... [I]t is 'not enough that mathematically the chances somewhat favor a proposition to be proved; for example, the fact that colored automobiles made in the current year outnumber black ones would not warrant a finding that an undescribed automobile of the current year is colored and not black, nor would the fact that only a minority of men die of cancer warrant a finding that a particular man did not die of cancer.' The most that can he said of the evidence in the instant case is that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident.
Id. at 755 (quoted source omitted)(emphasis added).
¶ 233. In Diversey Corp. v. Diversey Corp., 742 So.2d 1250, 1254 (Ala. 1999), the court ruled that "because [the plaintiffs expert] could not testify that a specific product caused [the plaintiffs] injuries, his testimony was mere conjecture and therefore not sufficient to create a genuine issue of material fact." Likewise, here, Mr. Dragen's analysis did not find evidence of white lead carbonate; it merely excluded two other types of lead pigments. As noted, the record indicates that there were other lead pigments in production for use in interior painting other than carbonates, sulfates, chromates, including lead silicate, lead titanates, and litharge. Furthermore, the record indicates that individual painters often added leaded thinners or dyers to non-leaded pigments. Thomas's expert's statistical pro*357cess of elimination simply fails to account for these other alternative sources of lead in paint. As such, it is mere speculation or conjecture to contend that white lead carbonate caused Thomas's injuries. Id. ("1 "Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause."'") (quoting Southern Ry. Co. v. Dickeson, 100 So. 665, 669 (Ala. 1924) (quoted source omitted)).
¶ 234. Similarly, in Guenther v. Armstrong Rubber Co., 406 F.2d 1315, 1318 (3d Cir. 1969), the court held that proof that the defendant made up to 80 percent of the tires sold in the store where the plaintiff worked and was injured was not sufficient to establish that the defendant made the tire that harmed the plaintiff. The court ruled: "[T]here was no justification for allowing plaintiffs case on that so-called probability hypothesis to go to the jury. The latter's verdict would at best be a guess. It could not be reasonably supported." Id. See also 63 Am. Jur. 2d Products Liability § 50 (1996) ("A verdict with respect to proximate causation may not be based on mere theory, conjecture, speculation, or surmise. Thus, where the evidence reveals several possible causes of the accident, it is improper to allow the jury to guess which cause might have been the proximate cause.")(emphasis added).
¶ 235. Thus, the fact that Thomas's expert was able to exclude two types of pigment from the paint samples provided to him is simply not legally sufficient to establish that white lead carbonate was the cause of Thomas's injuries, as there were other lead pigments and ingredients used in interior paint that could have caused Thomas's injuries and Dr. Mushak testified that *358he could not say whether the lead found in Thomas was from some form of lead other than white lead carbonate. Thomas's experts did not find any scientific evidence that the paint at his residences contained white lead carbonate, and Thomas himself admitted that he is unable to identify white lead carbonate as the cause of his injuries in his answers to the defendants' interrogatories.
¶ 236. As such, unlike Collins, where the plaintiff could not establish the identity of the manufacturer of the drug her mother had taken, here, Thomas cannot prove the identity of the manufacturer or the identity of the product. That Thomas cannot prove he was injured by white lead carbonate is not a trivial point; the defendants are being sued in their capacity as producers of white lead carbonate. Collins itself required proof "that DES caused the plaintiffs subsequent injuries." Collins, 116 Wis. 2d at 193. To hold multiple defendants liable for a product they all produced when the plaintiff cannot identify which one of them produced the specific product that injured him is one thing; it is quite another to hold multiple defendants liable for a product they all produced when the plaintiff cannot even establish that product caused his injuries.
¶ 237. In addition, another related distinction exists between this case and Collins. Unlike DES, white lead carbonate does not produce a "signature injury." DES plaintiffs suffered from a specific, rare form of cancer strongly associated with maternal ingestion of DES. Collins, 116 Wis. 2d at 179. In other words, "the plaintiffs' injuries were uniquely traceable to a single product^]" Randy S. Parlee, Overcoming the Identification Burden in DES Litigation: The Market Share Liability Theory, 65 Marq. L. Rev. 609, 635 (1982).
*359¶ 238. In contrast, there is no such signature injury in lead poisoning cases. Thomas's injuries could have occurred as a result of the ingestion of lead from a wide variety of sources. See Brenner, 263 A.D.2d at 173 ("Plaintiffs allege that [the child] sustained injuries to his central nervous system, including difficulties with concentration, abstract thinking, and comprehension. But [his] injuries could have been caused by some source other than lead, or even by a source of lead other than lead-based paint.").
¶ 239. Contrary to the majority's assertion, majority op. ¶¶ 155-57, this lack of a signature injury should be dispositive because as noted, the second prerequisite for utilization of the Collins risk-contribution theory was that the plaintiff had to prove "that DES caused the plaintiffs subsequent injuries." Collins, 116 Wis. 2d at 193. In this case, Thomas simply cannot prove that white lead carbonate, as opposed to another lead pigment or another source of lead in paint, caused his injuries.
¶ 240. Even assuming, arguendo, that Thomas can prove he was injured by white lead carbonate, other important distinctions exist between this case and Collins. For instance, unlike Collins, this case does not involve a finished product over which the defendants had exclusive control that was utilized for its intended purpose. In Collins, the manufacturers sought FDA approval of DES and marketed the drug directly to consumers. See id. at 191. Except for differing doses, the DES did not change between the time of manufacture and consumption. As such, the manufacturers had exclusive control over the risk their product posed to the public. In contrast, the "differing formulae of lead paint has a direct bearing on how much damage a lead paint manufacturer's product would cause." Skipworth, 690 A.2d at 173. As the Brenner court noted:
*360[T]he manufacturers of white lead carbonate did not have exclusive control of the risk. The paint manufacturers, rather than the lead pigment manufactures, decided which pigments to use and in what quantities. In addition, owners and landlords of residences had control of some of the risk posed by lead-based paint, which becomes hazardous when it peels and flakes and is then ingested or the dust inhaled. Owners and landlords could control such risk by proper maintenance of their property. Furthermore, manufacturers of DES intended that their product be ingested by pregnant women to prevent miscarriages. In contrast, white lead carbonate or lead-based paint is not intended for ingestion and obviously was not marketed for such a use.
Brenner, 263 A.D.2d at 172-73.
¶ 241. The plaintiff here is suing the manufacturers of an ingredient in a finished product that caused injury because it was not utilized for its intended purpose. In Collins, the manufacturers made, marketed, and sold the final product to the consumer and thus had control over the end product. White lead carbonate manufacturers that did not also manufacture lead paint had no control over how much of their pigment was incorporated into the final product or whether it would be used for residential purposes. Paint manufacturers made the ultimate decision in regard to the types, combinations, and amounts to use in the formulation of their final paint product. Any given painter had a unique way of mixing paints depending on the purpose for which the paint was to he used. Further, none of these individuals could have controlled whether a child ingested paint chips. The raw material suppliers, therefore, did not have exclusive control over the risk of the product that allegedly injured Thomas; *361as such, this case clearly does not fall within the theory of risk contribution originally formulated in Collins.
¶ 242. Yet another significant distinction between this case and Collins is that unlike DES, white lead carbonate is not fungible. As noted by the majority, majority op., ¶ 138, an important justification for adopting the risk-contribution theory was that "DES was, for the most part, produced in a 'generic' form." Collins, 116 Wis. 2d at 180. Furthermore, "DES was a fungible drug produced with a chemically identical formula." Id. As such, it was virtually impossible for the plaintiff to determine which DES manufacturer produced the DES that her mother ingested. See id. This commonality among DES forms was important because it assured that all DES manufacturers equally shared responsibility for the risk of injury posed by the drug.
¶ 243. As described previously, the defendants in this case have overwhelmingly demonstrated that lead paints and pigments were anything but generic, fungible, or chemically identical. To briefly restate, pigment manufacturers utilized different formulas for white lead carbonate that varied in terms of chemical composition, lead content, particle size, and hiding power. Further, the end product producers, the lead paint manufacturers, utilized different types and concentrations of white lead carbonate in different paint mixtures, depending upon the brand and the purpose for which the paint was to be applied. In other words, there was no single, identical formulation of white lead carbonate. These different formulas contained different amounts of lead, and hence, different levels of toxicity.
¶ 244. Thus, even if Thomas could provide scientific evidence that he ingested a white lead carbonate pigment, no uniform risk was presented among the varieties of white lead carbonate. As the different formulas contained different lead concentrations, they *362posed different risks of harm. Obviously, a mixture with a high lead concentration posed a greater risk than a mixture with a low lead concentration.
¶ 245. The Brenner court recognized the importance of this distinction from the DES cases when it rejected market share liability in an action against manufacturers of white lead carbonate:
All DES manufactured had an identical chemical composition. In contrast, lead-based paint is not a fungible product; it contains varying amounts of lead pigments, including white lead carbonate. Arguably, the white lead carbonate used as a raw material in some lead-based paint did not differ between manufacturers. However, paint manufacturers used differing amounts of white lead carbonate, or some other lead pigment, in their paints. Some lead-based paint contained 10% lead pigment, while other paint was more toxic, containing as much as 50% lead pigment. Not only did the amount of lead pigment vary, but so did the type of lead pigment used. Thus, unlike DES, the finished product that was used by consumers here, i.e., lead-based paint, was not fungible.
Brenner, 263 A.D.2d at 172. See also Skipworth, 690 A.2d at 173 (noting that unlike DES, which was "manufactured according to an identical formula and presented an identical risk of harm[,] ... it is undisputed that lead pigments had different chemical formulations, contained different amounts of lead, and differed in potential toxicity"). Because neither white lead carbonate nor the lead-based paint into which these pigments were incorporated were generic or fungible, it would be inappropriate to apply the Collins risk-contribution theory here, as the defendants did not equally share responsibility for the risk posed by white lead carbonate, in contrast to the drug companies that manufactured and marketed DES.
*363¶ 246. The majority drastically lowers the threshold for fungibility articulated in Collins by concluding that all forms of white lead carbonate are fungible. The majority recognizes that white lead carbonate was made from three different chemical formulas, while DES was made from only one. Majority op., ¶ 139. Nevertheless, the majority concludes that fungibility does not require chemical identity. Id. The majority stresses that for the purposes of fungibility, it is the "common denominator in the formulas that counts: lead." Id., ¶ 140. The majority goes on to state that "the formulas for both DES and the white lead carbonate are in a sense on the same footing as being inherently hazardous." Id. There is simply no basis in Collins or any of the cases from other jurisdictions, applying market share liability, for establishing such a low threshold for fungibility.
¶ 247. With this misconceived focus on a "common denominator," and an "inherently hazardous" formula, the majority has drastically expanded the intended parameters of Collins. The majority's reasoning is clearly flawed and virtually eliminates the fungibility requirement, as now all finished products containing a common raw material are fungible. As Sherwin-Williams indicates, under the majority's rationale, victims of a shooting who cannot identify a gun manufacturer could sue all steel companies, a person injured by a drain cleaner could sue all producers of sodium hydroxide, and one who is injured in a fire started by matches could sue all producers of sulfur.
¶ 248. Thus, under the majority's rationale, white lead carbonate could be considered fungible with other forms of lead pigment, lead sinkers for fishing poles, lead pencils, or lead pipes. Similarly, under the majority's rationale, all types of tires are fungible because they all *364contain rubber. If all that is required is a "common denominator," then a plaintiff could sue the manufacturers of all these products because they are all, under the majority's rationale, "fungible" for the purposes of Collins, as they all contain a common offending ingredient.
¶ 249. The majority cites to a California asbestos case, Wheeler v. Raybestos-Manhattan, 11 Cal. Rptr. 2d 109 (Cal. Ct. App. 1992), for support of its conclusion that the common denominator is what matters for purposes of fungibility. However, the Wheeler case is clearly the minority view:
[O]ther authority finds market share liability inappropriate where the substance, such as asbestos, is not fungible as was DES, and had widely varying ranges of toxicity, depending upon its form and use. Nonfungibility between and among the several types of asbestos has generally precluded application of market share liability to claims for asbestos-related personal injury, although California courts have recognized that an exception might exist in asbestos-containing brake pad litigation. \See Wheeler, 11 Cal. Rptr. 2d 109.] Thus, courts evaluating claims of asbestos-related injury have declined to extend market share liability because while "all of the asbestos products shared an important characteristic in that they all contained asbestos fibers,... they also possessed divergent characteristics, such as the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product."
Madden & Owen § 24:7, at 662-63 (quoting Mullen v. Armstrong World Indus., Inc., 246 Cal. Rptr. 32, 36 (Cal. Ct. App. 1988)) (footnotes omitted)(emphasis added).14
*365¶ 250. Furthermore, the majority has overstated the holding of Wheeler. As correctly stated by the North Dakota Supreme Court:
Although Wheeler recognized that non-identical products may give rise to market share liability if they contain roughly equivalent quantities of a single type of asbestos fiber, the court did not hold that all asbestos-containing friction brake products in all cases will be considered fungible. In fact, the court in Wheeler indicated that such products must carry a nearly equivalent risk of harm to support market share liability. Furthermore, Wheeler was a reversal of a nonsuit based upon an offer of proof made by the plaintiff. The court stressed its holding was narrow: the plaintiffs had not proven the elements of a market share case, but were merely being afforded the opportunity to prove it. Clearly, Wheeler does not serve as evidence of fungibility and equivalent risks of harm of the products in this case.
Black v. Abex Corp., 603 N.W.2d 182, 190 (N.D. 1999) (internal citations omitted).
¶ 251. Notably, the Wheeler court reaffirmed its prior decision in Mullen, 246 Cal. Rptr. 32, in which the court refused to apply the market share theory of liability to a wide range of asbestos products manufac*366tured by the defendants because "[w]e noted there that asbestos, unlike DES, was not a single product but merely a generic name for an ingredient in a variety of products each of which posed a different risk of harm." Wheeler, 11 Cal. Rptr. 2d at 111. The Wheeler court distinguished Mullen because the brake pads at issue were comprised of a "single type of asbestos fiber,... and the amount of asbestos by weight in the pads varied within a limited range." Id. at 111.
¶ 252. In this case, there was no single type of white lead carbonate. Each formulation had different chemical compositions, contained different amounts of lead, and differed in potential toxicity. Furthermore, the amount of white lead carbonate contained in a particular lead paint varied greatly from mixture to mixture. As such, the rationale of Mullen, which focused on asbestos in general, is much more analogous to this case than the rationale of Wheeler, which focused on a particular asbestos fiber in a limited concentration range.
¶ 253. In Black, the North Dakota Supreme Court rejected market share liability in a suit against manufacturers of asbestos-containing products precisely because the products, although all containing asbestos, did not present equivalent risks of harm. Black, 603 N.W.2d at 189. "Market share liability is premised upon the fact that the defendants have produced identical (or virtually identical) defective products which carry equivalent risks of harm." Id. (emphasis added). The court further stated:
The rationale underlying market share liability, as developed in Sindell, is that it did not matter which manufacturer's product the plaintiffs mother actually ingested; because all DES was chemically identical, the same harm would have occurred. Thus, any individual *367manufacturer's product would have caused the identical injury, and it was through mere fortuity that any one manufacturer did not produce the actual product ingested.
Id. at 190. The court then noted that the asbestos-containing "friction products" that the defendants produced contained between seven and seventy-five percent asbestos fibers. Id. "It seems obvious that a product which contains seventy-five percent asbestos would create a greater risk of harm than one which contains only seven percent." Id. at 191. Thus, the Black court held that the market share theory of liability did not apply because the defendants' products did not carry equivalent degrees of risk and were not fungible. Id.
¶ 254. Similarly, in Sanderson v. International Flavors and Fragrances, Inc., 950 F. Supp 981, 991 (C.D. Cal. 1996), the court held that various perfumes and colognes were not fungible goods. "Just as the court of appeal in Mullen held that asbestos was not the 'simple equivalent[]' of DES, the fragrance products which plaintiff contends caused her injuries are not fungible goods made from an identical formula and therefore cannot be equated with the DES at issue in Sindell." Id. The court further observed that "the only difference between DES manufactured by Eli Lilly and DES manufactured by Abbott was the return address on the package sent by the manufacturer to the pharmacy. Such is not the case here." Id. The district court then applied the rationale of Mullen to the facts before it and concluded that the "defendants' fragrance products all (at least allegedly) contain aldehydes, but each contains different types of aldehydes, with different physical properties, at different levels of concentration. It would therefore be contrary to Mullen to apply the *368market-share theory in this case." Id. at 992. Furthermore, in its analysis the court determined that Wheeler was "highly distinguishable" and, therefore, not applicable. Id. at 992 n.10.
¶ 255. Likewise, in Doe v. Cutter Biological, 852 F. Supp 909, 913 (D. Idaho 1994), the court determined that Factor VIII, a clotting agent, was not a fungible drug. As stated by the court:
Unlike DES, Factor VIII is not a generic, fungible drug. Each processor prepares its Factor VIII concentrate by its own proprietary processes using plasma collected from its own sources. Each firm's Factor VIII concentrate is clearly distinguishable by brand name, package color, lot number, and number of units of Factor VIII per vial; each firm's Factor VIII concentrate is separately licensed by the Food and Drug Administration. There is no evidence that all Factor VIII products caused or were equally capable of causing HIV infection. Thus, the risk posed by the different brands of Factor VIII is not identical.
Id. (quoting Smith v. Cutter Biological, Inc., 823 P.2d 717, 733 (Haw. 1991) (Moon, J., concurring in part, dissenting in part)). Thus, the court refused to apply the market share theory of liability against the providers of Factor VIII.
¶ 256. Unfortunately for the defendants in this case, it is not obvious to the majority that the varieties of lead paint containing differing concentrations and compositions of white lead carbonate did not create equivalent risks of harm. Furthermore, a defendant like DuPont, which manufactured and marketed white lead carbonate for only seven years, did not create the same risk of harm as a defendant like Sherwin-Williams, which manufactured and marketed white lead carbonate for 37 years.
*369¶ 257. By ignoring or downplaying the significance of these factual distinctions and focusing solely on the policy articulated in Collins of allowing an injured plaintiff to recover, the majority casts a wide net that will ensnare numerous defendants and have drastic consequences for firms doing business in Wisconsin. Further, applying the Collins risk-contribution theory to a case such as this one — where the deficiencies in the plaintiffs proof are above and beyond the mere inability to identify the precise manufacturer of a generic, chemically identifiable, fungible product that was produced during a limited time frame — will have a profound effect on products liability law. Under the majority opinion, plaintiffs will be encouraged to sue entire industries rather than locate the defendant that manufactured the product that caused the injury. An individual defendant will have almost no ability to contest causation. Furthermore, "elimination of a causation requirement [will] render every manufacturer an insurer not only of its own products, but also of all generically similar products manufactured by its competitors." Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 336 (Ill. App. Ct. 1991) (quoting Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1483 (11th Cir. 1985)).
¶ 258. The Illinois Supreme Court articulated similar concerns when it too rejected all variants of market share liability in Smith, 560 N.E.2d 324.
We have not in the past been hesitant to develop new tort concepts; however, in this instance we decline to do so because of the infirmities in the proposed theory. Furthermore, this is too great a deviation from a tort principle which we have found to serve a vital function in the law, causation in fact, especially when market *370share liability is a flawed concept and its application will likely be only to a narrow class of defendants.
Id. at 344-45.
¶ 259. For an example of the harsh consequences of the majority's decision, one need look no further than to the recent decision of Haase v. Badger Mining Corp., 2004 WI 97, 274 Wis. 2d 143, 682 N.W.2d 389. In Haase, the plaintiff sued the manufacturer that provided silica sand to the foundry where the plaintiff worked. Id., ¶¶ 3-5. With the expansion of the Collins risk-contribution theory to the facts of this case, plaintiffs, such as those in Haase, can now sue the entire raw material industry and place the burden on each individual defendant to disprove their presumptive liability. Plaintiffs will have no incentive to locate the party that actually caused the injury. The majority's drastic expansion of the risk-contribution theory clearly distorts the original rationale behind the Collins decision and will have drastic consequences for business in this state.
¶ 260. Collins represented a departure from traditional principles of causation that was justified under the unique facts in that case. As detailed above, other than having a plaintiff who cannot identify which manufacturer's product injured him, this matter and Collins have little in common. As noted by the Brenner court, 263 A.D.2d at 173, "[t]he inability to identify a narrow time period in which to apply the market share theory, the absence of a fungible product, and the absence of a signature injury are among the reasons that other courts have refused to apply the market share theory in lead poisoning cases." Furthermore, the resounding weight of authority does not support such a fundamental change from conventional tort law principles, in any context outside of the DES scenario. *371Indeed, "market share liability theory has been rejected in most other types of products liability cases including those involving asbestos, breast implants, vaccines, lead paint, and gasoline." Madden & Owen § 24:7, at 672 (collecting cases).
¶ 261. As it is clear that this case is entirely factually distinct from Collins, the majority's decision represents a radical expansion and not a mere application of Collins. By expanding the scope of Collins to this case, the majority has essentially adopted a version of risk-contribution theory explicitly rejected in Collins. In other words, the majority's opinion is unjustified, unprecedented, and unwise.
IV
¶ 262. In sum, the majority opinion disregards the pertinent facts of this case, misconstrues our Article I, Section 9 jurisprudence, and ignores the numerous factual distinctions between this case and Collins. In so doing, the majority relaxes the traditional rules of causation beyond what was accomplished in Collins and eliminates any possibility that the defendants in this case will be able to present a defense. Thus, its decision amounts to no less than absolute liability for the manufacturers of a raw material that is later incorporated into a finished product that causes injury. This result is neither just, fair, nor grounded in the law. While it is understandable to feel saddened by the injuries suffered by the plaintiff, what is also tragic is that in its rush to condemn the entire lead paint industry, the majority ignores one of the most basic tenets of our justice system — an individual determination of wrongdoing.
¶ 263. I am authorized to state that Justice DAVID T. PROSSER joins this dissent.Much of the majority's statement of facts implies that the defendants should have stopped manufacturing lead-based paint at one time or another and switched production to a non-lead alternative. See majority op., ¶¶ 41-52. However, Thomas's claims based on defective design have been dismissed and are not before the court. On July 24, 2000, the circuit court entered an order dismissing Thomas's "first and second causes of action... asserting claims based on strict liability and negligence, insofar as those claims are dependent upon a theory of design defect." This order has not been appealed. The claims before this court are predicated on the defendants' failure to warn of the dangers of their product. It is one thing to construe all disputed issues of material fact in a light most favorable to the nonmoving party on summary judgment; it is quite another to attempt to obscure the issues on appeal and "hide the ball" by *331inundating the reader with copious amounts of irrelevant factual material in order to shift the focus away from the dearth of legal authority supporting the opinion.
Many of the following undisputed facts are taken from the affidavit of John A. Hetimann.
"Basic lead carbonate" could be comprised of one of the following two formulas: (1) 4PbC032Pb(0H)2Pb0 or (2) 2PbC03Pb(0H)2. The third formula, referred to as "normal lead carbonate," was PbC03.
We note that the record establishes that defendant ConAgra was never a member of the Lead Industries Association.
To the extent the discussion of Article I, Section 9 in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 43, 237 Wis. 2d 99, 613 N.W.2d 849, is contrary to the discussion of that provision in Collins, Aicher is the more recent case and therefore should control.
1 recognize that the Collins court also stated that where the plaintiff could not prove what type of DES the plaintiffs mother ingested, "the plaintiff need only allege and prove that the defendant drug company produced or marketed the drug DES for use in preventing miscarriages during pregnancy." Collins v. Eli Lilly Co., 116 Wis. 2d 166, 193-94, 342 N.W.2d 37 (1984). However, the court also explicitly rejected a theory that would have based liability solely on the fact that the defendants manufactured the drug in question, stating: "[W]e do not agree that this is a sufficient basis in itself for liability." Id. at 191 n.10. As the court explained: "We still require it be shown that the defendant drug company reasonably could have contributed in some way to the actual injury." Id.
"The Sindell [c. Abbott Laboratories, 607 E2d 924 (Cal. 1980),] approach of market share liability has been recognized favorably in some jurisdictions [but] only for DES cases. Most jurisdictions have rejected it in all cases, including those involving DES." 2 David G. Owen et al., Madden & Owen on Products Liability § 24:7, at 661 (3d ed. 2000) [hereinafter Madden & Owen] (citing Smith v. Eli Lilly & Co., 560 N.E.2d 324 (Ill. *3451990); Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986); Sutowski v. Eli Lilly & Co., 696 N.W.2d 187 (Ohio 1998); Morton v. Abbott Labs., 538 F. Supp. 593 (M.D. Fla. 1982); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004 (D.S.C. 1981)). See also Richard E. Kaye, Annotation, "Concert of Activity," "Alternate Liability," "Enterprise Liability," or Similar Theory as Basis for Imposing Liability Upon One or More Manufacturers of Defective Uniform Product, in Absence of Identification of Manufacturer of Precise Unit or Batch Causing Injury, 63 A.L.R. 5th 195, 225-239, 260-74 (1998) (collecting cases).
"Notably, in Collins, the Wisconsin Supreme Court explained that it would not adopt a risk contribution theory which would have imposed liability solely upon the DES defendants' participation in the creation of the risk of injury . . . ." Hymowitz v. Eli Lilly and Co., 539 N.E.2d 1069, 1082 (N.Y. 1989) (Mollen, J., concurring).
Numerous courts in various jurisdictions have disagreed with the reasoning of Collins, 116 Wis. 2d 166. See, e.g., Smith, 560 N.E.2d at 333-34 (Ill. 1990); Mulcahy, 386 N.W.2d 67; Hymowitz, 539 N.E.2d at 1077-78; Gullotta v. Eli Lilly and Co., No. Civ. H-82-400 1985, WL 502793 (D. Conn. May 9, 1985) (rejecting Collins because the actual DES producer may not have been named as a defendant, [] the defendants have no greater knowledge concerning the identity of the manufacturer who produced the DES ingested by the plaintiffs mother and [] there has been no showing of negligent conduct by each defendant towards the plaintiff); Zafft v. Eli Lilly Co., 676 S.W.2d 241 (Mo. 1984); 63 Am. Jur. 2d Products Liability 194 (1996) (noting that the opportunity to adopt the risk contribution theory has been declined on the grounds that the theory has the potential of producing injustices through delayed recoveries and inconsistent results).
See Hymowitz, 539 N.E.2d at 1082 (noting that none of the jurisdictions that adopted various theories of collective liability for DES cases adopted a theory wherein the defendants were unable to exculpate themselves, "thereby recognizing that to preclude exculpation would directly and unnecessarily contravene common-law tort principles of causation") (emphasis added) (Mollen, J., concurring).
Contrary to the assertions of the majority opinion, majority op., ¶ 11 n.4, this issue was explicitly addressed by the defendants in their submissions to this court. Resp'ts Br. at 27-29. It is Thomas who has not addressed this issue. Further, contrary to the assertion of the majority, majority op., ¶ 11 n.4, regardless of whether the circuit court ruled on this issue, it is our duty to sustain the circuit court's decision if it was correct and an alternate theory or reasoning not adopted by the circuit court supports its decision. Liberty Trucking Co. v. DILHR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973).
Thus, the majority is simply wrong to imply that the defendants conceded Thomas can prove he was injured by white lead carbonate. See majority op., ¶ 11 n.4.
See Madden & Owen § 24:7, at 662 n.6, for a list of cases precluding application of market share liability for asbestos-*365related cases because of nonfungibility: Stevens v. Owens-Corning Fiberglas Corp., 57 Cal. Rptr. 2d 525, 540 (Cal. Ct. App. 1996) (noting "diversity of asbestos products"); Celotex Corp. v. Copeland, 471 So. 2d 533, 538-39 (Fla. 1985) (collecting cases that reject market share theory in asbestos cases); Gaulding v. Celotex Corp., 748 S.W.2d 627 (Tex. App. 1988) (concluding that market share liability, among other theories, is not available in Texas for an asbestos-related injury; Starling v. Seaboard Coast Line Ry. Co., 533 F. Supp 183 (S.D. Ga. 1982); Vigiolto v. Johns Manville Corp., 643 F. Supp. 1454 (W.D. Pa. 1986) (holding that market share liability is not appropriate in an action based on an asbestos-related injury).
Before reaching the merits of the defendants' due process arguments, it is necessary to address the majority's conclusory contention that "[t]hese constitutional issues are not ripe." Majority op., ¶ 166. "[T]he ripeness inquiry focuses on whether an injury that has not yet occurred is sufficiently likely to happen to justify judicial intervention." Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153-54 (5th Cir. 1993).
I have no difficulty in concluding that the constitutional issues are ripe. The result the majority reaches in this case has immediate and dire consequences for the defendants, and impacts other cases awaiting the result of this case.
For the defendants, the majority opinion means that they will effectively be denied the chance to rely on ordinary tort theory to defeat the plaintiffs claim. Parties in other cases already filed and in cases yet to be filed will also note the majority's receptiveness to claims of this nature, and we may see a stampede to file lead paint suits before Congress or the Wisconsin Legislature can react. These issues should be addressed now.