
USCA1 Opinion

	




          September 24, 1993                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                   _____________________               No. 92-2263                                     MONICA SANTIAGO,                                   Plaintiff, Appellant,                                            v.                             SHERWIN WILLIAMS COMPANY, ET AL.,                                  Defendants, Appellees.                                   _____________________                                       ERRATA SHEET                    Please make the following  correction in the opinion in               the above case released on September 10, 1993:               Page 7, footnote 4:  change the footnote to read as follows:                    Judge Breyer  dissents.  In his  view, despite the                    equitable arguments against certification  in this                    case,  in light  of the  importance of  the matter                    this panel should certify the issue to the Supreme                    Judicial Court.                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2263                                   MONICA SANTIAGO,                                Plaintiff, Appellant,                                          v.                          SHERWIN WILLIAMS COMPANY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Friedman,* Senior Circuit Judge,                                      ____________________                               and Stahl, Circuit Judge                                          _____________                                 ____________________            Jonathan   Shapiro,  with   whom  Stern,   Shapiro,  Rosenfeld   &            __________________                ________________________________        Weissberg,  Robert J. Doyle, Kehoe,  Doyle, Playter &  Novick, Neil T.        _________   _______________  ________________________________  _______        Leifer, Thornton, Early &  Naumes, Judith Somberg, Johnson  & Somberg,        ______  _________________________  ______________  __________________        Arthur Bryant, and Trial Lawyers for Public Justice, were on brief for        _____________      ________________________________        appellant.            Paul  Michael Pohl, with whom Charles H.  Moellenberg, Jr., Jones,            __________________            ____________________________  ______        Day, Reavis  & Pogue, Thomas  J. Griffin, Jr., Loretta  Smith, Erik H.        ____________________  _______________________  ______________  _______        Aldeborgh,  II, Goodwin, Procter &  Hoar, Dale A.  Normington, were on        ______________  ________________________  ___________________        brief  for  Sherwin-Williams  Company,  Rory  FitzPatrick,  Meghan  H.                                                _________________   __________        Magruder,  Bingham, Dana & Gould, Donald A.  Bright, were on brief for        ________   _____________________  _________________        Atlantic Richfield Company, Michael Nilan, G. Marc Whitehead, Janie S.                                    _____________  _________________  ________        Mayeron, Popham, Haik,  Schnobrich &  Kaufman, Ltd.,  Thomas V.  Urmy,        _______  __________________________________________   _______________        Shapiro, Grace  & Haber, were on brief  for SCM Corporation, Donald E.        _______________________                                      _________        Scott, John M. Walker, Kirkland & Ellis, David B. Garten, and Janet D.        _____  ______________  ________________  _______________      ________        Smith,  were  on brief  for NL  Industries,  Inc., and  Mary Morrissey        _____                                                   ______________        Sullivan, Richard Nahigian,  and Sullivan, Sullivan  & Pinta, were  on        ________  ________________       ___________________________        brief for Lead Industries Association.            David G. Owen on  brief for The Business Roundtable and Chamber of            _____________        Commerce of the United States of America, amici curiae.            Stephen  S. Ostrach,  Emily R.  Livingston and  New England  Legal            ___________________   ____________________      __________________        Foundation on brief for Associated Industries of Massachusetts and New        __________        England Legal Foundation, amici curiae.                                 ____________________                                  September 10, 1993                                 ____________________        ____________________        *Of the Federal Circuit, sitting by designation.                      STAHL, Circuit Judge.   In this appeal,  plaintiff-                             _____________            appellant Monica  Santiago  challenges the  district  court's            entry  of  summary  judgment  against her  and  in  favor  of            defendants-appellees.1    In  so  doing,  plaintiff  advances            three  arguments:  (1) the legal issues in this appeal should            be  certified to  the  Massachusetts  Supreme Judicial  Court            ("SJC");   (2)  the   district  court   erred  in   rejecting            plaintiff's  market  share liability  argument;  and  (3) the            court erred in rejecting plaintiff's concert of action claim.            After carefully  reviewing each of  plaintiff's arguments, we            affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      Plaintiff was born  on November 9, 1972.   From the            time of  her birth until 1978, she  and her family resided at            20  Leston Street in Boston.   Plaintiff alleges that, during            her  period of residence,  she ingested  lead paint  that had            been applied in layers to the walls and woodwork of her  home            at various times  between 1917,  the year  of the  building's            construction,   and  1970.     The   evidence  reveals   that                                            ____________________            1Defendants  are  Sherwin-Williams  Company,  NL  Industries,            Inc.,  Eagle-Picher  Industries,  Inc.,   Atlantic  Richfield            Corporation (successor  to International Smelting  & Refining            Company), and SCM Corporation (successor to Glidden Company).            On   January  7,  1991,   defendant  Eagle-Picher  filed  for            bankruptcy in  Ohio, thus  automatically staying  this action            against it.  See 11 U.S.C.   362.                         ___                                         -3-            plaintiff's blood had highly  elevated levels of lead  by the            time plaintiff was  one year  of age, that  the lead  reached            emergency levels  by July 1976,  and that, as  a consequence,            plaintiff  had  to undergo  chelation  therapy2  in order  to            remove the  lead from her  body.  Although  plaintiff's early            development  appeared  to  progress normally,  she  has  been            diagnosed with a  hyperactivity-attention disorder and  motor            skill  difficulties  which her  medical experts  attribute to            lead poisoning.                      Plaintiff initiated this  action in November  1987,            contending   that  defendants,   or  their   predecessors  in            interest, manufactured and marketed all, or virtually all, of            the  white lead  used in the  lead paints sold  in the United            States between 1917 and 1970.  Her complaint set forth claims            of  negligence, breach  of warranty,  and concert  of action.            Jurisdiction was premised upon diversity of citizenship.  See                                                                      ___            28 U.S.C.   1332.                      Plaintiff  could  not  and cannot  identify  either            which,  if any, of the defendants are  the source of the lead            she  ingested or  when the  alleged injury-causing  paint may            have  been applied to the walls and woodwork of her childhood                                            ____________________            2Chelation therapy is a procedure whereby a person  with lead            poisoning  is  given  chemicals  that  bind  with  the  lead,            enabling the body to excrete it more rapidly.                                         -4-            home.3    She has,  however, introduced  (1) evidence  in the            form  of expert testimony that  lead paint "was  at minimum a            substantial contributing  factor of her  lead poisoning;" (2)            evidence  demonstrating that  all of the  defendants produced            white  lead for  significant portions  of the  period between            1917 and 1970; (3) evidence that almost all of the white lead            produced for paint  between 1917 and 1970 was manufactured by            defendants; and (4) evidence that, between 1930 and 1945, all            of the defendants, as members of a trade association known as            the  Lead  Industries  Association  ("LIA"),  "simultaneously            coordinat[ed]  promotional campaigns  to increase  white lead            consumption in paint  and .  . . work[ed]  to neutralize  the            growing public  concern about lead paint poisoning."   On the            basis of this evidence, plaintiff sought to dispense with the            identification requirement and hold defendants liable under a            market   share  theory.     Plaintiff  further   argued  that            defendants  were liable  for  her injuries  because of  their            concerted marketing actions as members of the LIA.                      By memorandum and order dated January 13, 1992, the            district court  rejected plaintiff's market share  claim as a            matter  of Massachusetts law.   In so doing,  the court ruled                                            ____________________            3There is no direct evidence that plaintiff actually ate lead                         ______            paint.  There is,  moreover, record evidence suggesting that,            in addition to lead paint,  plaintiff could have been exposed            to  airborne lead, lead from food and water, and/or lead from            soil and  dust.  Indeed,  there is  evidence indicating  that            plaintiff's neighborhood, including the soil around her home,            was heavily contaminated with lead.                                         -5-            that even if the  SJC would recognize market  share liability            under some scenario, it would not do so if presented with the            undisputed facts  of this  case.   See generally  Santiago v.                                               ___ _________  ________            Sherwin-Williams Co., 782 F.  Supp. 186 (D. Mass. 1992).   By            ____________________            memorandum and  order dated July  2, 1992, the  court further            ruled that  plaintiff's concert of  action claim failed  as a            matter  of  Massachusetts  law because  plaintiff  could  not            identify which  of the defendants actually  had committed the            tort.  See generally Santiago v. Sherwin-Williams Co., 794 F.                   ___ _________ ________    ____________________            Supp.  29 (D.  Mass. 1992).   It is  from these  rulings that            plaintiff now appeals.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Certification            A.  Certification            _________________                      As an initial matter, plaintiff  has requested that            we certify to  the SJC questions  regarding the viability  of            market share liability and concert  of action as theories  of            recovery in  light of the facts  of this case.   We note that            plaintiff first  requested certification  in this court,  and            explicitly  stated her  opposition  to  certification at  the                                    __________            district court level.  Now,  having lost below, plaintiff has            reversed  her  position.  Unsurprisingly,  defendants  oppose            plaintiff's certification request.                      For reasons  that are largely  self-explanatory, we            have  held  that "one  who  chooses to  litigate  [her] state                                         -6-            action  in  the federal  forum (as  plaintiff did  here) must            ordinarily    accept    the   federal    court's   reasonable            interpretation  of  extant  state  law  rather  than  seeking            extensions via  the certification process."   Croteau v. Olin                                                          _______    ____            Corp., 884 F.2d  45, 46 (1st Cir. 1989); see also 17A Charles            _____                                    ___ ____            A. Wright,  Arthur R. Miller,  and Edward H.  Cooper, Federal                                                                  _______            Practice  and Procedure    4248,  176 (2d  ed.  1988) (courts            _______________________            "should be slow to  honor a request for certification  from a            party  who  chose  to  invoke federal  jurisdiction").    The            concerns about fundamental fairness and judicial economy that            animate this general rule  make us considerably less inclined            to  depart  from  it  when  the  plaintiff  did  not  request            certification before  the district  court.  See  Croteau, 884                                                        ___  _______            F.2d at 46.                      Here, as will  be demonstrated below, the  district            court's  interpretation  of Massachusetts  law  was eminently            reasonable.  Furthermore, plaintiff, after initially deciding            to eschew her prerogative to file this action in state court,            actively made  her opposition  to certification known  to the            district  court.   In  light of  these  facts, and  given the            further fact that  it has  been over five  years since  these            federal  proceedings  were initiated,  it would  be extremely            unfair  to  defendants  if  we were  to  allow  plaintiff  to            relitigate  the   issues  at  the  heart   of  this  lawsuit.                                         -7-            Accordingly,   plaintiff's   request  for   certification  is            denied.4            B.  Standard of Review            B.  Standard of Review            ______________________                      Having  dispensed  with  plaintiff's  certification            request,  we  proceed  to  delineate the  parameters  of  our            examination.   Summary judgment allows courts  to "pierce the            boilerplate of the  pleadings and assay the parties' proof in            order  to  determine  whether  trial is  actually  required."            Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st            _____    ____________________________            Cir.  1992), cert. denied, 113 S. Ct. 1845 (1993).  It should                         _____ ______            be granted  when  "the  pleadings,  depositions,  answers  to            interrogatories, and  admissions on  file, together with  the            affidavits, if any, show that there is no genuine issue as to            any  material fact and that  the moving party  is entitled to            judgment as a matter of law."  Fed. R. Civ. P. 56(c).                      A fact is only material if it has "the potential to            affect  the outcome of  the suit  under the  applicable law."            Nereida-Gonzalez  v. Tirado-Delgado,  990 F.2d 701,  703 (1st            ________________     ______________            Cir.  1993).  However, our  reading of the  facts, as derived            from the record, is  always done "`in the light  most amiable            to  the nonmovant. . .  .'"  Lawrence  v. Northrop Corp., 980                                         ________     ______________            F.2d  66, 68 (1st Cir.  1992) (quoting Garside  v. Osco Drug,                                                   _______     __________                                            ____________________            4Judge Breyer dissents.   In his view, despite  the equitable            arguments against certification in this case, in light of the            importance  of the matter this panel should certify the issue            to the Supreme Judicial Court.                                         -8-            Inc.,  895 F.2d  46,  48 (1st  Cir.  1990)).   This  includes            ____            "indulg[ing]  all reasonable  inferences" in  the nonmovant's            favor.  Id.                    ___                      Our review of a summary judgment ruling is plenary.            Garside, 895 F.2d  at 48.  Furthermore, we are not limited to            _______            the reasoning employed by the district court; instead, we may            "affirm the  entry of  summary judgment on  any independently            sufficient  ground  made manifest  by  the  record."   United                                                                   ______            States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st            ______    ___________________________            Cir. 1992).                      In addition to examining the facts, a court passing            on a summary judgment motion  or reviewing a summary judgment            determination must,  of course, consider the  applicable law.            When a  plaintiff invokes  diversity jurisdiction to  bring a            state law  claim in federal  court, this  survey is  somewhat            circumscribed,  for   it   is  settled   that,  in   ordinary            circumstances, a  plaintiff who  "selects a federal  forum in            preference  to an  available state  forum may not  expect the            federal  court   to  steer   state  law  into   unprecedented            configurations."   Martel  v. Stafford,  992 F.2d  1244, 1247                               ______     ________            (1st  Cir. 1993); see also  Ryan v. Royal  Ins. Co., 916 F.2d                              ___ ____  ____    _______________            731, 744  (1st Cir. 1990) (rejecting  a diversity plaintiff's            attempt  to stretch  New York  law to  new frontiers  without            providing a "well-plotted roadmap showing an avenue of relief            that the state's highest  court would likely follow"); Porter                                                                   ______                                         -9-            v. Nutter, 913  F.2d 37,  41 (1st Cir.  1990) (plaintiff  who               ______            seeks out a federal venue in a diversity action should expect            "unadventurous" interpretations  of state law).   Mindful  of            these strictures, we turn to plaintiff's claims.            C.  Market Share Liability            C.  Market Share Liability            __________________________                      Plaintiff argues  that the district court  erred in            granting defendants summary judgment  on her claim for market            share liability.  In  so doing, she concedes that the SJC has            never explicitly endorsed a  market share liability theory of            recovery, and  further recognizes  that the court  rejected a            certain   species  of  market  share  liability  advanced  by            plaintiffs  in  a DES  class action.    See Payton  v. Abbott                                                    ___ ______     ______            Labs., 437  N.E.2d 171,  188-90 (Mass. 1982).5   Nonetheless,            _____                                            ____________________            5In  Payton,  an action  brought by  a  class of  women whose                 ______            mothers  ingested DES  while pregnant  with them,  the United            States District  Court  for  the  District  of  Massachusetts            certified to the SJC the following question:                      Assuming that the evidence does not  warrant a                 conclusion that the defendants  conspired together,                 or  engaged in  concerted  action,  or  established                 safety standards  through a trade  association, may                 the defendant manufacturers, who  probably supplied                 some  of  the DES  ingested by  the mothers  of the                 plaintiff class,  be held liable to  members of the                 plaintiff class when neither the plaintiffs nor the                 defendants  can  identify which  manufacturer's DES                 was ingested by which mothers?            Id.  at 188.   The  SJC ruled  that it  could not  answer the            ___            question in the form  stated because the question "d[id]  not            explicitly  assume  that  the  plaintiffs  will  be  able  to            establish the negligence of . . . defendants."  Id.  However,                                                            ___            as is discussed more fully below, the court did set forth its            general views on  market share  liability.  In  so doing,  it            rejected  the theory  of market  share liability  advanced by                                         -10-            plaintiff asserts that certain  dicta in Payton indicate that                                                     ______            her claim would be approved by the SJC.6  We cannot agree.                      As  the SJC  has  noted, "[i]dentification  of  the            party  responsible  for  causing   injury  to  another  is  a            longstanding prerequisite to a successful negligence action."            Payton,  437 N.E.2d at 188.   However, some courts, cognizant            ______            of the modern  industrial reality of fungible goods which may            harm  consumers  but  which  cannot  be  traced  to  specific            producers,  have relaxed  this identification  requirement in            certain  negligence and  product liability  cases.   In these            cases, the courts  have allowed plaintiffs who are  unable to            identify the  particular defendant who  actually manufactured            the harm-causing product  to pursue their  claims so long  as            they are able to prove both  that the product caused the harm            and that  the defendants were  market suppliers  at the  time            plaintiff  had her harmful encounter  with the product.  See,                                                                     ___                                            ____________________            plaintiffs in that case.  Id. at 189.                                      ___            6In concluding its  explicit rejection of the  form of market            share liability plaintiffs sought to impose, the Payton court                                                             ______            stated:                      That is not  to say that on an adequate record                 this court  would not recognize  some relaxation of                 the   traditional  identification   requirement  in                 appropriate circumstances so  as to allow  recovery                 against a negligent defendant  of that portion of a                 plaintiff's damages  which  is represented  by  the                 defendant's  contribution of DES  to the  market in                 the relevant period of time.            Id. at 190.            ___                                         -11-            e.g., Sindell v. Abbott  Labs., 607 P.2d 924,  936-38 (Cal.),            ____  _______    _____________            cert. denied, 449 U.S.  912 (1980).  If a  plaintiff prevails            _____ ______            in  such   a  case,   courts  typically  have   limited  each            defendant's  liability  to that  portion  of the  plaintiff's            judgment which reflects  the share of the  market supplied by            the defendant at the time of said encounter.  See, e.g., id.,                                                          ___  ____  ___            607 P.2d at 937.  Market share liability has most often  been            recognized in the context of DES cases.  See, e.g., McCormack                                                     ___  ____  _________            v. Abbott Labs., 617 F. Supp. 1521 (D. Mass. 1985); McElhaney               ____________                                     _________            v. Eli Lilly & Co., 564 F. Supp. 265 (D.S.D. 1983); Conley v.               _______________                                  ______            Boyle  Drug Co., 570 So.2d  275 (Fla. 1990);  Hymowitz v. Eli            _______________                               ________    ___            Lilly & Co., 539  N.E.2d 1069 (N.Y.), cert. denied,  493 U.S.            ___________                           _____ ______            944  (1989);  Martin v.  Abbott  Labs., 689  P.2d  368 (Wash.                          ______     _____________            1984);  Collins v.  Eli Lilly  & Co.,  342 N.W.2d  37 (Wis.),                    _______     ________________            cert. denied, 469  U.S. 826 (1984).   But see  Ray v.  Cutter            _____ ______                          ___ ___  ___     ______            Labs.,  754 F. Supp. 193  (M.D. Fla. 1991) (product contained            _____            HIV virus); Morris v.  Parke, Davis & Co., 667 F.  Supp. 1332                        ______     __________________            (C.D. Cal.  1987) (plaintiff harmed by DPT vaccine); Smith v.                                                                 _____            Cutter Biological,  Inc., 823  P.2d 717 (Haw.  1991) (product            ________________________            contained HIV virus).                      As  noted  above,  the  SJC did  have  occasion  to            consider, by means of a certified question, the viability  of            one  form of  market  share liability  in  a DES  case.   See                                                                      ___            Payton,  437 N.E.2d at 188-90.   In Payton, plaintiffs argued            ______                              ______            for market share  liability with two significant twists:  (1)                                         -12-            that  they  be allowed  to proceed  against and  recover full            damages  from only  six named  DES manufacturers  despite the            fact that there was a larger number of potential tortfeasors,            and (2) that defendants  should be prohibited from presenting            exculpatory  proof.  See id.  at 188-89.   The court rebuffed                                 ___ ___            these arguments, holding that two articulated reasons for the            identification  requirement,  (1)  that  wrongdoers  be  held            liable  only  for the  harm they  have  caused, and  (2) that            tortfeasors  be  separated  from  innocent  actors, would  be            disserved  by  the  adoption of  plaintiffs'  theory.   Id.                                                                      ___            Accordingly, as we have  stated, the SJC rejected plaintiffs'            version of market share liability.  Id. at 189.                                                 ___                      We  accept for  the  sake  of argument  plaintiff's            assertions  (1) that  the SJC  would, in  some circumstances,            relax the identification requirement and allow a plaintiff to            recover under a market  share theory; (2) that the  SJC would            recognize  market  share  liability  in  the  lead  poisoning            context;  (3)   that  plaintiff  has   introduced  sufficient            evidence  for  a  reasonable  factfinder to  infer  that  her            injuries resulted  from lead  poisoning; (4) that  lead paint            was,  as  one of  plaintiff's experts  puts  it, at  least "a            substantial contributing factor  of her lead poisoning";  and            (5) that  defendants, who were  mere bulk suppliers  of white            lead and  did not manufacture  or market the  alleged injury-            causing  paint,  could  still   be  adjudged  to  have  acted                                         -13-            negligently towards plaintiff.  Nonetheless,  we believe that            the  SJC's  professed  interest  in  both holding  wrongdoers            liable only for the  harm they have caused and  in separating            tortfeasors  from  innocent actors  is  fatal to  plaintiff's            claim.                        Simply put, allowing plaintiff's market share claim            to proceed despite plaintiff's inability to pinpoint with any            degree  of precision  the time  the injury-causing  paint was            applied  to the  house on  Leston Street  would significantly            undermine   both  of   the   articulated  reasons   for   the            identification  requirement.   The record before  us reflects            that the layers  of lead  paint were applied  to the  house's            walls at  various undeterminable points in  time between 1917            and 1970.7  It  also indicates that defendants' contributions            to  the lead  paint market  varied significantly  during this            time period.  Given  these facts, it is difficult  to discern            the basis upon which any market share  determination would be            premised.8  At  any rate, it is evident  that the adoption of                                            ____________________            7Plaintiff did introduce expert testimony  attempting to date            one of the multi-layered paint samples taken from  the house.            However, this expert  was only able to say that  one layer of            lead paint probably  was applied between  1933 and 1939,  and            that  a  second layer  of  lead  paint was  probably  applied            between 1955 and 1969.             8Apparently,  plaintiff would  have  market share  determined            according  to an  average of  defendants' market  shares over            time.  Because such  an approach would virtually  guarantee a            deviation between  liability and  actual culpability  for all            the named  defendants, we  are confident that  the SJC  would            look upon it with disfavor.                                         -14-            plaintiff's  theory would  not be  consistent with  the SJC's            admonition that wrongdoers  be held liable only for  the harm            they have caused.                      Moreover, several 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 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.  Under            plaintiff's  theory,  therefore,  tortfeasors   and  innocent            actors would not be adequately separated.                      Finally,  we note  that  the dicta  relied upon  by            plaintiff  indicates that a  relaxation of the identification            requirement to  allow recovery against  a negligent defendant            would  only be  appropriate to  the extent that  the recovery            represents "that  portion of  a plaintiff's damages  which is            represented by  that defendant's  contribution . .  . to  the            market in the relevant period of time."  Id. at 190 (emphasis                   __ ___ ________ ______ __ ____    ___            supplied).   Here, as  noted, plaintiff cannot  identify with            adequate specificity the  relevant period of time.   Thus, it            appears that plaintiff's theory does not fall within even the            vague parameters mentioned in the SJC's dicta.                                         -15-                      In  sum,  allowing plaintiff  to  recover  her full            damages from the five  named defendants despite her inability            to specify the  time of  their negligence may  well, on  this            record, do violence to the SJC's stated interest in  ensuring            that  wrongdoers be held liable  only for the  harm they have            caused.  It also would create a substantial  possibility that            tortfeasors   and  innocent  actors  would  be  impermissibly            intermingled.  The SJC  has made it abundantly clear  that it            would  not countenance either  result.   Accordingly, mindful            that  federal courts  sitting in  diversity at  a plaintiff's            election  ought  not  "steer  state  law  into  unprecedented            configurations," see Martel, 992 F.2d  at 1244, we affirm the                             ___ ______            district court's  grant of summary judgment  to defendants on            plaintiff's market share claim.9            D.  Concert of Action            D.  Concert of Action            _____________________                      Finally, plaintiff contends that the district court            erred in granting defendants  summary judgment on her concert            of action claim.  Again, we cannot agree.                                            ____________________            9We are aware that  the United States District Court  for the            District of  Massachusetts, relying  on the dicta  in Payton,                                                                  ______            approved a market  share theory  of recovery in  a DES  case.            See McCormack, 617 F. Supp. at 1525-26.  We note simply  that            ___ _________            the  McCormack case was never  appealed and that  we have not                 _________            had, nor do we  now have, occasion to pass on the correctness            of its holding.  We further note that the aspect of this case            upon which we rest our preclusion of plaintiff's market share            claim  --  plaintiff's  inability  to identify  the  time  of            defendants'  alleged   negligence  --  was   not  present  in            McCormack.            _________                                         -16-                      Plaintiff's  concert  of action  claim  is premised            upon the  theory of liability set forth in Section 876 of the            Restatement  (Second) of  Torts  (1977).   In relevant  part,            Section 876 (entitled "Persons Acting in Concert") provides:                 For  harm  resulting to  a  third  person from  the                 tortious conduct  of  another, one  is  subject  to                 liability if he                   (a) does a tortious act in concert with the other                 or pursuant to a common design with him, or                   (b) knows  that the other's conduct constitutes a                 breach of duty and gives substantial  assistance or                 encouragement to the other  so to conduct himself .                 . . .            In   isolated   circumstances,   Massachusetts  courts   have            indicated their willingness to permit recovery under theories            tracking the  language of  Section  876.   E.g., Orszulak  v.                                                       ____  ________            Bujnevicie, 243  N.E.2d 897,  898 (Mass. 1969)  ("Persons who            __________            race automobiles on a public way are liable in negligence for            injuries  caused  by one  of  them."); Nelson  v.  Nason, 177                                                   ______      _____            N.E.2d 887, 888 (Mass. 1961) (similar).                      In essence, plaintiff claims that, "in light of the            substantial medical  evidence of  the unreasonable risk  that            [lead  paint]   posed  to   young  children[,]"   certain  of            defendants' actions  as members of  the LIA between  1930 and            1945  were  tortious.    Specifically,  plaintiff  points  to            defendants'    "initiat[ion   of]    nationwide   promotional            campaigns, encourage[ment of] the use of white lead  in house            paint  through extensive advertising, [attempts] to undermine                                         -17-            the growing medical evidence of the danger of lead paint, and            work[]  to prevent the  enactment of governmental regulations            which would have restricted the use of white lead in painting            buildings."10      What   is   utterly   lacking   from   her            presentation, however,  is any  evidence that these  actions,            during  the fifteen year period she  identifies, had any role                                                                 ___            in  causing lead  paint to  be  applied to  the walls  of her            childhood home.   Even if we assume that at least some of the            lead paint  consumed by  plaintiff was  applied  to her  home            during the  period of defendants'  alleged concerted actions,            there is no evidence that the application resulted from these                     __            actions, or that it would not have taken place in the absence            of  these actions.  Cf. Roberts v. Southwick, 614 N.E.2d 659,                                ___ _______    _________            663  (Mass. 1993)  (endorsing instruction  defining proximate            cause  as "that which, in continuous  sequence, unbroken by a            new cause,  produces an  event, and  without which the  event            would not have  occurred").  Thus,  it is  our view that  the            factfinder  could  only have  based  a  causation finding  on            speculation or  conjecture.   Clearly, this is  inappropriate            under Massachusetts law.  See Goffredo v. Mercedes-Benz Truck                                      ___ ________    ___________________            Co., 520  N.E.2d 1315,  1317-18 (Mass.  1988); Gynan  v. Jeep            ___                                            _____     ____            Corp., 434 N.E.2d 688, 691 (Mass. App. Ct.) (plaintiff "could            _____            not  leave causation merely  to speculation and conjecture"),                                            ____________________            10Plaintiff acknowledges,  however, that she has  no evidence            that  defendants  ever  concealed  information  or introduced            false research into public debate.                                         -18-            review denied, 440 N.E.2d 1177 (Mass. 1982); see also W. Page            ______ ______                                ___ ____            Keeton et  al., Prosser and Keeton on Torts   41, at 269 (5th                            ___________________________            ed.  1984)  ("The  plaintiff  must  introduce  evidence which            affords a reasonable basis for the conclusion that it is more            likely than not that the conduct of the defendant was a cause            in fact of the result.  A  mere possibility of such causation            is  not enough;  and  when the  matter  remains one  of  pure            speculation or  conjecture, or the probabilities  are at best            evenly balanced, it becomes the duty of the court to direct a            verdict for the defendant.").                      We  acknowledge that  the question of  causation is            generally  for the  factfinder.   See Mullins  v. Pine  Manor                                              ___ _______     ___________            College, 449 N.E.2d 331, 338 (Mass. 1983).  Where there is no            _______            evidence from which the  factfinder, without speculating, can            find causation, however, the  case is appropriately kept from            the jury.  See Goffredo, 520 N.E.2d at 1318.  We believe that                       ___ ________            this is such  a case.   Accordingly, we  affirm the  district            court's  decision  to award  defendants  summary judgment  on            plaintiff's concert of action claim.11                                            ____________________            11We  recognize that  the  district court  based its  summary            judgment  decree on  the fact  that plaintiff  was unable  to            identify any  of the defendants specifically  as tortfeasors.            See  Santiago, 794  F. Supp. at  33.  We  also recognize that            ___  ________            plaintiff has  spent much effort challenging this ruling.  As            noted  above, however,  we are  free to  affirm the  entry of            summary judgment on any independently sufficient  ground made            manifest by the  record.   One Parcel of  Real Property,  960                                       ____________________________            F.2d at  204.   Because we do  so here, we  do not  reach the            correctness of the district court's decision.                                         -19-                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      Because  certification to  the  SJC of  the  issues            raised in  this appeal  would  be inappropriate,  plaintiff's            request  therefor   is  denied.    Furthermore,  because  the            district court correctly ruled  that plaintiff's market share            and concert  of action  claims fail as  a matter  of law,  we            affirm  its  granting  of  defendants'  motions  for  summary            judgment thereon.                      Affirmed.  Costs to appellees.                      Affirmed.  Costs to appellees.                      ________   __________________                                         -20-
