Paint industry beats back defective design argument in Wisc.

John O'Brien Jul. 14, 2009, 1:23pm

MADISON, Wisc. (Legal Newsline) - After a setback in Mississippi, the paint industry earned another victory Tuesday when the Wisconsin Supreme Court sided with it in the case of a minor who claimed it was liable for his lead poisoning.

The justices affirmed a Court of Appeals decision dismissing Ruben Baez Godoy's defective design claim against four defendants, including DuPont and Sherwin-Williams. Godoy alleged a design flaw in white lead carbonate pigment used in lead paint, outlawed in 1978.

Three courts agreed that the claim could not stand because white lead carbonate pigment is inherent in the nature of the product.

"The Wisconsin Supreme Court followed established law by rejecting plaintiff's claim that lead pigment is defective because it contains lead," said Charles H. Moellenberg, Jr., an attorney for The Sherwin-Williams Company. "Lead is an inherent part of any lead pigment."

The paint industry has won most of the recent court battles over lead paint. Victories in Missouri, Wisconsin and New Jersey set the stage for a win in the Rhode Island Supreme Court that overturned a lower court's ruling that the industry created a public nuisance by manufacturing lead paint before it was outlawed.

The defendants in that case could have been on the hook for Attorney General Patrick Lynch's $2.4 billion abatement plan.

Last month, though, a Mississippi jury awarded $7 million in a high school student's case against Sherwin-Williams. The company had earned summary judgment in the case, but the state Supreme Court disagreed with the trial court's decision and reinstated the case.

Justice Patience Roggensack did not participate in the Wisconsin case, while all six of her colleagues were on the side of the defendants.

Those that filed amicus briefs in the case were The Product Liability Advisory Council, Miller Brewing Co., S.C. Johnson and Son, Wisconsin Knife Works, Midwest Food Processors Association, Wisconsin Dairy Business Association, The Metropolitan Milwaukee Association of Commerce, Hydrite Chemical Co. and the Wisconsin Association for Justice.

Godoy suffered lead poisoning in 1998 while living in Milwaukee.

"A claim for defective design cannot be maintained where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself," the opinion says.

"Without lead, there can be no white lead carbonate pigment. The complaint fails to allege a design feature that makes the design of white lead carbonate pigment defective."

Moellenberg said lead paint was used before the health risks associated with it were known because it was washable and durable.

"Federal and state governments recommended and even required the use of lead paint on government housing projects and other buildings until the late 1970s," he said.

"Litigation alleging novel legal theories against former manufacturers of a lawful product is a distraction from the proven solution of enforcing the law against landlords who neglect their property and expose children to lead paint hazards."

Plaintiffs firm Motley Rice was one of the firms representing Godoy. It also represented the State of Rhode Island in its case on a contingency fee and came up with the idea of making a public nuisance claim, which was not subject to the same expired statute of limitations on a products liability claim.

From Legal Newsline: Reach John O'Brien by e-mail at

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