¶ 264. (dissenting). Four years ago the City of Milwaukee filed suit against NL Industries, Inc. of Dallas, Texas, and Mautz Paint Company of Madison, alleging that the companies were responsible for creating a public nuisance in the City's old housing stock by marketing and selling substantial quantities of lead pigments and/or lead-based paint. City of Milwaukee v. NL Indus., Inc., 2005 WI App 7, ¶¶ 2-4, 278 Wis. 2d 313, 691 N.W.2d 888.
¶ 265. The City asked the two defendants to pay the costs associated with its lead abatement program, which it estimated to be more than one hundred million dollars. Id., ¶¶ 3, 5. More specifically, the City sought (1) compensatory and equitable relief for abatement of the toxic lead hazards in Milwaukee homes; (2) restitution for amounts expended by the City to abate the toxic lead hazards in Milwaukee homes; and (3) punitive damages.
¶ 266. The circuit court dismissed the City's claim for public nuisance, concluding that the City could not show that these particular defendants caused their lead-based paint to be applied to any of the specific buildings included in the alleged public nuisance. Id., ¶¶ 1,14-19. The court of appeals reversed. The matter is now awaiting a decision by this court in the present litigation.
¶ 267. In the meantime, Mautz Paint, a long-time Wisconsin corporation founded in 1892, sold its business to Ohio-based Sherwin-Williams in November 2001. The company cited financial pressure brought on by Milwaukee's lead paint lawsuit. All Madison-based Mautz manufacturing has ceased.
¶ 268. The City of Milwaukee's lead paint lawsuit provides us with a window to the future. When the court issues its decision in this case, every person under the age of 20 who claims a lead paint injury in Wiscon*373sin will have a cause of action in our courts. Every person in the United States who has a lead paint injury that could have come from a Wisconsin-based company and can survive the limitations periods in his own state may have a cause of action. Every municipality in this country that has a lead abatement program and can make a plausible argument that Wisconsin-made lead paint or white lead carbonate injured its residents may follow the City of Milwaukee and seek redress in this state. Wisconsin will be the mecca for lead paint suits. There is no statute of repose on products liability here, and this court has now created a remedy for lead paint poisoning so sweeping and draconian that it will he nearly impossible for paint companies to defend themselves or, frankly, for plaintiffs to lose.
¶ 269. Because the majority opinion creates a cause of action that violates due process of law, equal protection of the law, and nearly every principle of sound public policy in tort cases, I dissent.
FACTUAL BACKGROUND
¶ 270. Steven Thomas, now 15, lived in several houses in Milwaukee during his formative years. These houses include (1) 2652 North 37th Street; (2) 2654 North 25th Street; and (3) 4736 North 37th Street. The first house at 2652 North 37th Street was built in 1905. The second house at 2654 North 25th Street was built in 1900.
¶ 271. Thomas claims that he ingested lead paint at all three houses as a small child. The owner of the first house settled with him for $62,652. The owners of the second house settled for $261,520. The insurer of the owner of the third house prevailed on a motion for summary judgment.
¶ 272. Plaintiffs expert did testing of paint chips at the first two houses. The expert found as many as 21 *374layers of paint on chips at the first house and 18 layers of paint on chips at the second house. Many of these layers contained white lead carbonate.
¶ 273. For purposes of this discussion, we must accept as true that Thomas ingested white lead carbonate from paint chips or dust from all three houses. However, Thomas admits that he will not be able to prove which companies among the defendants, if any, supplied paint containing white lead carbonate to any of the three houses. The plaintiff will be unable to prove that, say, ConAgra Grocery Products, or one of its subsidiaries, ever supplied white lead carbonate that ended up in paint at 2652 North 3.7th Street, or, if it did, whether the white lead carbonate it supplied caused injury to Thomas.
¶ 274. The gist of this majority opinion is to create a theory of tort liability for paint manufacturers that obviates any need for a plaintiff to provide such proof.
ANALYSIS
¶ 275. Normally, if Thomas proceeded on a negligence theory, he would have to prove four elements: duty, breach, causation, and damages. If he proceeded on a strict products liability theory, he would have to prove five elements: that the product was defective and unreasonably dangerous; that the product was defective when it left the possession or control of the seller; that the defect in the manufacturer's product was a cause (substantial factor) of the plaintiffs injury; that the seller was engaged in the business of selling such products; and that the product was one which the seller expected to and did reach the consumer without substantial change.
¶ 276. Assessing these elements, it is apparent that Thomas could not succeed under existing theories of negligence or strict products liability. Indeed, he *375acknowledges as much. Thomas's admitted inability to prove specific product causation would be fatal to his claim.
¶ 277. The facts in this case do not fit the law. So, instead of simply applying the settled law, the majority changes the law to fit the facts.
¶ 278. As to Thomas's negligence cause of action, the majority modifies the elements as follows: Thomas must prove (1) that he ingested white lead carbonate; (2) that the white lead carbonate caused his injuries; (3) that the "Pigment Manufacturer" defendants produced or marketed the type of white lead carbonate he ingested; and (4) that a Pigment Manufacturer's conduct in producing or marketing the white lead carbonate constituted a breach of a legally recognized duty to Thomas. Majority op., ¶ 161.
¶ 279. As to Thomas's strict products liability cause of action, the majority has modified the elements to the extent that Thomas need prove only that the white lead carbonate was (1) defective; and (2) unreasonably dangerous; (3) "that the defective product] was a cause of Thomas's injuries or damages;" (4) that the manufacturer was engaged in the business of selling such products; and (5) that the product was one which the seller expected to and did reach the consumer without substantial change. Majority op., ¶ 162.
¶ 280. Thus, the majority has broken the link between manufacturer and product. Under the majority's rule, Thomas need prove only that a general type of product caused his injury; not that a specific manufacturer's product caused his injury. A manufacturer is virtually powerless to show that its specific product did not cause the injury. To mount a successful defense, a manufacturer would have to disprove the presumed link that the plaintiff admittedly cannot prove *376and need not prove. It goes without saying that DNA testing does not apply to paint chips or dust.
¶ 281. The majority's modification of the well-settled elements of negligence and strict products liability violates the defendants' constitutional rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. This deprivation is underscored by the majority's departure from longstanding principles of tort liability.
DUE PROCESS1
¶ 282. The Fourteenth Amendment provides in part that no "State [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
*377¶ 283. The Supreme Court has repeatedly held that " '[d]ue process' has never been, and perhaps can never be, precisely defined."2 However, both this court and federal courts have repeatedly characterized the immutable core of due process as "fair play."3 The precepts laid out in the majority opinion are fundamentally unfair and at odds with traditional notions of fair play.4
¶ 284. The defendants' constitutional arguments could be construed as alleging violations of substantive *378due process or procedural due process. Substantive due process " 'protects against governmental actions that are arbitrary and wrong "regardless of the fairness of the procedures used to implement them."' "5 Procedural due process "addresses the fairness of the manner in which a governmental action is implemented."6 The majority opinion violates the defendants' constitutional rights under both theories.
A. Procedural Due Process
¶ 285. The defendants contend that they will be denied the opportunity to present a defense under well-settled tort theory: the defense that their products did not cause the plaintiffs injury. This argument is not aggressive or overreaching. It simply demands the right to be heard, implicating the "fairness of the procedures" by which liability is determined.
¶ 286. What process is due these defendants? " 'Due process is flexible and calls for such procedural protections as the particular situation demands.' "7
¶ 287. To determine the process due in a particular situation, the Supreme Court has often recited a three-factor balancing test.8 The Court balances (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural *379safeguards; and (3) the government's interest in the matter, including the governmental function involved and any fiscal or administrative burdens that additional or substitute procedural requirements would entail.9 This tripartite formulation dates back at least as far as Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
¶ 288. The majority opinion sets up an irrebutable presumption of causation: if the plaintiff can show that the defendant manufactured white lead carbonate sometime between 1900 and 1978, and that some form of white lead carbonate caused the plaintiffs injury, the defendant will be held liable. The defendant has no opportunity to show that its particular product did not cause the plaintiffs injury.10 It is faced with no-fault liability.
¶ 289. Given this inequity, the determining factor in the Mathews test is the second factor: the risk of erroneous liability inherent in the procedure the majority implements today. It completely tips the Mathews balance.
¶ 290. The risk of error created by the majority opinion is enormous. Because Thomas cannot prove which of multiple layers of paint injured him, the defendants cannot show that they did not produce, or more precisely, could not have produced, the white lead carbonate in that layer.
*380¶ 291. The plaintiff need not show the evidence that is normally most critical in tort cases: that the defendant's product injured the plaintiff. The plaintiff need not show that a defendant produced white lead carbonate during a particular time span (except a time period (1900-1978) of more than three quarters of a century), or that the defendant produced a type of white lead carbonate with an identical chemical formula to the product that injured the plaintiff, or even that a particular defendant's products could have injured the plaintiff.
¶ 292. This is true even though many of the defendants produced white lead carbonate for only a small fraction of the 78-year period during which paint containing white lead carbonate could have been applied to the walls of Thomas's three residences.
¶ 293. To illustrate, DuPont manufactured white lead carbonate for only seven years (1917-24). SCM manufactured white lead carbonate for 34 years (1924-1958). Sherwin-Williams manufactured white lead carbonate for 37 years (1910-47). Under the majority opinion, a plaintiff may just as easily recover from a defendant such as DuPont (which made the product for seven years) as another defendant that produced it for eleven times seven years. There is no rhyme or reason to such a result.
¶ 294. DuPont, for example, would have no way to prove that it did not manufacture the white lead carbonate that injured the plaintiff, because the plaintiff could not prove when the white lead carbonate he ingested was used in paint, when that paint was applied to his multiple residences, or which of multiple layers of paint in three residences (or the dust therefrom) allegedly injured him. These shortcomings in the majority's reasoning illustrate why this case is very different from *381Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984), in which the plaintiff could point to a nine-month span in which she could have been injured, and in which many similarly situated plaintiffs could identify distinguishing characteristics about the DES pills they took.11
¶ 295. These shortcomings are the reason that no other court has ever adopted any form of market share liability in lead paint cases. "The public policy reasons favoring the use of market share do not control where there is a possibility that the defendants did not cause the harm in question."12 The shortcomings are the reason that learned commentators advise that "[t]he greater the span of time within which the potentially injury-causing product was sold, the less suited market share liability will be."13 They are probably the reason *382why, despite calling Wisconsin the "last hope" for lead paint plaintiffs, even a prominent member of the plaintiffs' bar commented, "I just don't see it happening," when asked about the plaintiffs chance of success in this case.14
¶ 296. As another court stated in rejecting an identical claim, "application of the market share theory to this situation would virtually ensure that certain pigment manufacturers would be held liable where they could not possibly have been a potential tortfeasor."15
¶ 297. The majority opinion raises the very real possibility that innocent defendants will be held liable for wrongs they did not commit. To avoid the risk of erroneous verdicts, Thomas should have to show specific product causation and the defendants should be allowed a fair chance to show that their products did not injure Thomas. Neither principle is consistent with the majority opinion.
B. Substantive Due Process
¶ 298. The majority's complete disregard for longstanding principles of tort liability certainly "shocks the conscience," thus violating substantive due process.16
¶ 299. In effect, the majority opinion imposes ex post facto liability on the defendants for activities long past. In this regard, the majority opinion is directly *383contrary to the principles expressed in Justice Anthony Kennedy's concurrence in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).
¶ 300. In Apfel, the petitioner, a corporation formerly engaged in coal mining, challenged the Coal Industry Retiree Health Benefit Act of 1992 on the grounds that it violated the due process and takings clauses of the constitution by retroactively imposing liability based on the corporation's activities between 1946 and 1965.17 A plurality of the Court concluded that the law violated the takings clause because it "improperly places a severe, disproportionate, and extremely retroactive burden on Eastern."18
¶ 301. Justice Kennedy concurred, arguing that "If retroactive laws change the legal consequences of transactions long closed, the change can destroy the reasonable certainty and security which are the very objects of property ownership."19 As Justice Kennedy pointed out, "[b]oth stability of investment and confidence in the constitutional system ... are secured by due process restrictions against severe retroactive legislation."20 Accordingly, Justice Kennedy would have held the law unconstitutional on due process grounds. Id. at 550 (Kennedy, J., concurring).
¶ 302. Here, it is not a statute, but the majority's decision, that imposes retroactive and severe liability based on "transactions long closed." The principles articulated by Justice Kennedy are no less forceful when applied here; and the majority's decision, which will have the unerring consequence of imposing retro*384active liability, is just as unconstitutional as if the same action had been taken by the state legislature.
EQUAL PROTECTION
¶ 303. The equal protection clause "creates no substantive rights," but embodies the general rule that the government "must treat like cases alike."21 The majority's rule does not "treat like cases alike."
¶ 304. Assume for a moment that the year is 1960, and consider two Wisconsin paint manufacturers. Under the majority opinion, each would be equally culpable, assuming they both produced lead-based paint. Assume further that the first company was a small division of a larger company with minimal contacts in Wisconsin and sold only a small volume of paint in Wisconsin. Assume that the other company was based in Wisconsin, did most of its business here, and operated here for the majority of the time in question.
¶ 305. Assume now that today, the first company is still in business as a large, profitable corporation, and the second company is defunct.22 Despite the fact that the company that has gone out of business was, in this hypothetical, the most culpable tortfeasor, it escapes all liability. The first company, on the other hand, will bear a disproportionate share of the liability. This is not "treating like cases alike."
PUBLIC POLICY
¶ 306. The majority's disregard for the type of "fair play" guaranteed by the due process and equal *385protection clauses is illuminated by a review of the six public policy factors this court has identified as tending to preclude liability even when negligence exists.
¶ 307. The six factors are: (1) Whether the injury is too remote from the negligence; (2) Whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) Whether it appears in retrospect too extraordinary that the negligence should have brought about the harm; (4) Whether allowance of recovery would place an unreasonable burden on the tortfeasor; (5) Whether allowance of recovery would be too likely to open the way to fraudulent claims; and (6) Whether allowance of recovery would enter a field that has no sensible or just stopping point.23
¶ 308. Even if we were to assume, arguendo, that Thomas could prove causation and thus negligence, all these factors would weigh against attaching liability. First, the alleged injury here is too remote from the negligence. The white lead carbonate at issue may have been produced as much as 100 years ago. It is almost impossible to defend against alleged negligence that no living person can remember.
¶ 309. Second, the injury is wholly out of proportion to the defendants' culpability. The recent negligence of a landlord in allowing the paint to deteriorate seems greater than the negligence of the manufacturer of one of the raw materials used to make the paint perhaps a half century ago.
¶ 310. Third, in retrospect it appears too extraordinary that the negligence should have brought about the harm. It is not enough for the majority to allege, in its presentation of the facts, some sort of industry-wide *386knowledge on the part of lead paint suppliers. The plaintiff should have to show that each defendant had knowledge of the dangers of white lead carbonate, not lead paint.
¶ 311. Fourth, allowance of recovery would place an unreasonable burden on the defendant. As stated above, it is nearly impossible to defend a suit alleging negligence 50 to 100 years in the past. Even if a defendant had insurance during the entire time it was involved with white lead carbonate, it might have changed insurers, none of whom will now be eager to step forward with coverage. How will a defendant prove coverage? Even if coverage could be proved, how will 1930s insurance pay for 21st century damages?
¶ 312. Fifth, allowance of recovery would be too likely to open the way to fraudulent claims. In erasing the causation requirement, the majority kicks out one of the legs supporting conventional principles of tort liability. These time-honored standards have been designed to ensure that meritorious claims are rewarded and fraudulent claims are rejected. The majority's action tilts the balance to substantially increase the possibility of fraudulent claims.
¶ 313. Sixth, the principles in the majority opinion have no sensible or just stopping point. As Justice Wilcox's dissent (which I wholeheartedly join) points out, the majority discards the principle of fungibility underpinning the Collins rationale. The reasoning in the majority opinion could be adapted to cover other raw materials. Further, under the majority opinion, plaintiffs injured in other states have the option to come to our courts and sue Wisconsin raw material manufacturers for harm that occurred elsewhere.
¶ 314. By illustrating the fundamental unfairness worked by the majority opinion, these six factors pro*387vide additional evidence that the majority opinion violates the core due process right of "fair play," as well as the defendants' right to equal protection of the law. Given the near-unanimous rejection of this theory by other courts, this invasion is as unexpected as it is unwarranted.
CONCLUSION
¶ 315. The consequences of the majority opinion may be staggering for Wisconsin industry and commerce. When Mautz Paint, a home-grown Wisconsin company, faced a similar suit, it was forced to sell out to an out-of-state company. The new owner quickly moved all manufacturing jobs out of state.
¶ 316. The harmful effects that this decision could visit on Wisconsin commerce render the majority decision unwise. The presumptions in the majority opinion that contradict the defendants' rights of due process and equal protection render the majority decision unconstitutional.
¶ 317. For the foregoing reasons, I respectfully dissent.
¶ 318. I am authorized to state that Justice JON E WILCOX joins this opinion.See, e.g., Lassiter v. Dep't of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 24 (1981).
See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998); Carlson v. Green, 446 U.S. 14, 46 n.12 (1980); Tammie J.C. v. Robert T.R., 2003 WI 61, ¶ 14, 262 Wis. 2d 217, 663 N.W.2d 734; Layton Sch. of Art and Design v. WERC, 82 Wis. 2d 324, 363, 262 N.W.2d 218 (1978).
It is true enough that, generally, claims of due process violations are raised as objections to the operation of statutes. See, e.g., Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189 (2001); Matthies v. Positive Safety Mfg. Co., 2001 WI 82, ¶ 27, 244 Wis. 2d 720, 628 N.W.2d 842. In that sense, the "State" actor at issue is the state legislature. Yet courts, too, must bow to this constitutional mandate. Ownbey v. Morgan, 256 U.S. 94, 111 (1921) (The due process clause "restrains state action, whether legislative, executive, or judicial, within bounds that are consistent with the fundamentals of individual liberty and private property, including the right to be heard where liberty or property is at stake in judicial proceedings.") (emphasis added). Accordingly, a higher court is free to determine that a lower court's decision violated the due process rights of one or more of the parties. See, e.g., Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 682 (1930) (reversing state court's decision on due process grounds and noting "while it is for the state courts to determine the adjective as well as the substantive law of the State, they must, in so doing, accord the parties due process of law.").
Barbara B. v. Dorian H., 2005 WI 6, ¶ 18 n.14, 277 Wis. 2d 378, 690 N.W.2d 849 (citation omitted).
Id.
Gilbert v. Homar, 520 U.S. 924, 930 (1997) (citation omitted).
Wilkinson v. Austin, _ U.S. _, 125 S. Ct. 2384, 2395 (2005); Homar, 520 U.S. at 931-32.
Id.
On several occasions, the United States Supreme Court has struck down statutes on the grounds that the statutes created an irrebutable presumption in violation of the due process clause. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974); United States Dep't of Agriculture v. Murry, 413 U.S. 508 (1973); Vlandis v. Kline, 412 U.S. 441 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535 (1971).
In Collins v. Eli Lilly Co., 116 Wis. 2d 166, 198, 342 N.W.2d 37 (1984), the court noted that innocent defendants could exculpate themselves by showing that their products "could not have reached the plaintiffs mother." With respect to DES, this could have been done by showing that a particular manufacturer did not produce DES pills of a particular color or style. Perhaps because its net is so broad, the majority offers no such guidance here.
Santiago v. Sherwin-Williams Co., 782 F. Supp. 186, 193 (D. Mass. 1992). See also City of Philadelphia v. Lead Indus. Ass'n, Inc., 994 F.2d 112, 126 (3d Cir. 1993); Lewis v. Lead Indus. Ass'n, Inc., 793 N.E. 2d 869, 875 (Ill. Ct. App. 2003) (Accepting the plaintiffs' theory would essentially make particular defendants "insurers of their industry," and a product manufacturer's "duty is not so broad as to extend to anyone who uses or might be injured by a like kind product supplied by another"); Skipworth v. Lead Indus. Ass'n, Inc., 690 A.2d 169, 172-73 (Pa. 1997).
2 David G. Owen, M. Stuart Madden, et al., Madden & Owen on Products Liability § 24:7 at 663 (2000).
Molly McDonough, Risky Business: Wisconsin Court's Risk Analysis May Be Last Hope for Lead Paint Plaintiffs, ABA Journal (Feb. 14, 2005).
Skipworth v. Lead Indus. Ass'n, Inc., 690 A.2d 169, 172 (Pa. 1997) (emphasis added).
See, e.g., Chavez v. Martinez, 538 U.S. 760, 787 (2003) (Stevens, J., concurring in part and dissenting in part) (collecting cases).
E. Enters, v. Apfel, 524 U.S. 498, 532 (1998).
Id. at 538.
Id. at 548 (Kennedy, J., concurring).
Id. at 549 (Kennedy, J., concurring).
Vacco v. Quill, 521 U.S. 793, 799 (1997).
As examples of this class, O'Neil Duro Company began operation in 1925 and ceased operation in 1988. Similarly, Hager Paint Products began operation in 1925 and ceased operation in 1979. Both were based in Wisconsin.
Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 264-65, 580 N.W.2d 233 (1998).