Justice Louis B. Butler
Justice Annette Ziegler
MADISON — Last month’s Wisconsin Supreme Court election that replaced Jon P. Wilcox with controversial fellow-conservative Annette Ziegler is rumored to have cost over $6 million.
But that could be proverbial chicken feed compared to the amount at stake over some high profile and potentially lucrative lead paint lawsuits that have recently shifted to federal courts in Wisconsin.
Four of the cases involve children suing former lead paint manufacturers for health damages. One landmark case in 2005 set the stage for most other suits, yesterday’s Milwaukee Journal Sentinel (MJS) reported.
A separate $85 million case by the City of Milwaukee against lead paint companies will go to trial this month, a first for the state, MJS noted. The city has filed a public nuisance lawsuit to force two paint makers to pay for lead paint clean-ups in city buildings.
The Milwaukee lawsuit strongly resembles a case outlined recently in LegalNewsLine that’s currently before the Missouri Supreme Court. It was brought by the City of St Louis against six lead paint manufacturers, including Milwaukee pair NL Holdings and Sherwin-Williams, for city clean-up fees.
Paint manufacturers have already appealed to the Rhode Island Supreme Court over last year’s decision against them estimated at over $1 billion. A lower court ordered three paint-makers to pay for removing lead paint from contaminated buildings in the state.
The lead paint lawsuit push suffered a setback last month in a California Superior Court, LegalNewsLine reported, when state-paid contingency fees were knocked down. Undaunted, Ohio Attorney General Mark Dann filed a public-nuisance lawsuit against 10 paint companies a few days later over objections from GOP lawmakers.
Wisconsin’s four child-based cases were moved from state to federal court over the past month because there were no local defendants, the children’s attorney, Peter Earle, told MSJ. The cases involve adults exposed to lead paint as children living in Milwaukee homes.
Earle has 31 similar cases awaiting trial in Wisconsin, including one that led to a key Supreme Court ruling in what’s known as the Steven Thomas case.
There the Supreme Court decided, in a contentious two-dissent ruling, that plaintiffs could sue without identifying a specific paint-maker. In doing so it controversially accepted the “risk contribution” theory of liability proposed by Steven Thomas’s attorneys.
“We also conclude that the white lead carbonate claims at issue in this case…warrant extension of the risk-contribution theory,” wrote Justice Louis B. Butler for the majority opinion.
This ruling overturned an earlier Wisconsin Court of Appeals ruling that itself had affirmed a trial court ruling. Those rulings both dismissed the “risk contribution” theory as not relevant to the case.
Defendants in that case were American Cyanamid, Atlantic Richfield, E.I. DuPont, NL Industries, SCM Chemicals, Sherwin-Williams and ConAgra Grocery Products. Two – NL Industries and Sherwin Willimas – are defending lead paint suits in all five states they’ve been filed in.
Milwaukee officials claim lead poisoning levels in the city’s children is six times the national average because of the large number of older houses. Like most states, Wisconsin banned lead paint use in 1978.