Judge Dismisses Lead-based Paint Suit in Milwaukee

Judge Dismisses Lead-based Paint Suit in Milwaukee

A federal judge in Milwaukee on Nov. 15 dismissed a lawsuit related to lead-based paint, Gibson v. American Cyanamid, et al, against six manufacturers, in part because some never made lead-based paint but only acquired companies that had.

The suit was brought on behalf of a boy alleged to have suffered health issues from lead-based paint.

The decision by U.S. District Court Judge Rudolph T. Randa says the lawsuit threatened to impose an unfair, unconstitutional burden on companies that couldn't have anticipated the liability. Judge Randa had dismissed a seventh manufacturer from the suit based on analogous reasoning in June.

This federal decision strongly rebukes the ruling in recent history by the Wisconsin Supreme Court in the Thomas alleged lead poisoning case, also arising in Milwaukee, which would permit application of the novel risk contribution theory of liability to those kinds of cases, obviating the crucial tort law requirement that the manufacturer's product which purportedly caused or contributed to the harm be identified. Since Thomas, plaintiffs' attorneys have brought multiple lead poisoning cases to take advantage of open-ended risk contribution liability and avoid proving product identification and other requisite elements of causation. Wisconsin had seemingly become a haven for plaintiffs' attorneys pursuing lucrative verdicts over the historical lead pigment sales' issue; but state juries, and now a federal judge, have not "cooperated" thus far.

"By eliminating the traditional causation requirement in tort for those who were injured by white lead carbonate pigment, the risk contribution rule imposes a burden that is unrelated to any injury that was actually caused by defendants and bears no legitimate relationship to the government's interest in compensating the victims of lead poisoning for their injuries," according to the judge.

In his decision, Judge Randa cited the 1998 U.S. Supreme Court decision, E. Enters v. Apfel (E. Enters) to find that the potential imposition of liability against defendants under the risk contribution rule would have violated successor's substantive due process rights.

The court's reasoning in supporting defendants' due process affirmative defense argument is based on a presumption that, even if all the other elements to establish liability are satisfied (aside from the individual causation requirement cast aside by Thomas), the imposition of liability would [still] be unconstitutional. The risk contribution rule imposes unconstitutional retroactive liability because it "attaches new legal consequences to the manufacture and sale of lead carbonate pigments" [emphasis added].

The court further noted that "the risk contribution rule is unconstitutional when applied to companies that actually participated in the relevant marketplace or merely succeeded to the liability of such a company." As such, while liability should not attach to the latter for sound reason (i.e., it obviously could not have normally anticipated liability for the past actions of a predecessor company), the risk contribution rule cannot pass constitutional muster even for those who participated in the lead carbonate pigment market historically.

Removal of the case by defendants to federal court in this case in 2007 enabled traditional tort law precepts and constitutional due process principles to be invoked by a court which clearly did not feel bound by the opinion of the Wisconsin Supreme Court. The U.S. District Court trial judge's forceful, thorough articulation of the unlawful, arbitrary and irrational notion that is involved with application of the risk contribution theory leaves little room for its rectification.

Plaintiff's attorney Peter G. Earle has said he plans to appeal the decision to the U.S. Court of Appeals (7th Circuit). If so, ACA will act to support the trial court ruling by entering a "friend of the court" brief at this next stage of the case.

"The Gibson decision is one of the most significant favorable holdings for lead paint and pigment manufacturers in this long-playing saga - and the judge's unequivocal opinion, founded firmly on strong constitutional principles, should be a fertile new field for the U.S. Court of Appeals to plow of behalf of securing the necessary protections warranted for these types of defendants," said Thomas Graves, Vice President & General Counsel for the American Coatings Association.

Date Posted: December 29, 2010