CHICAGO (Legal Newsline) - The U.S. Court of Appeals for the Seventh Circuit reversed a multimillion-dollar jury verdict against manufacturers of lead paint pigment, saying the trial judge made several incorrect decisions in a case that helped prompt the Wisconsin legislature to pass a law banning such litigation.
The decision reverses $2 million awards a jury ordered DuPont, Sherwin Williams and Armstrong Containers to pay to several plaintiffs who claimed they ingested dangerous levels of lead paint while growing up in Milwaukee-area homes in the 1990s and early 2000s.
In a lengthy opinion released April 15, the Seventh Circuit said U.S. District Judge Lynn Adelman erred when she ruled that the pigment manufacturers could be sued for failing to warn consumers about the risks of lead paint under a theory of strict liability after dismissing nearly identical failure-to-warn claims because the companies had placed lead warnings on their paint since at least 1955. The judge tried to import theories of tort liability into Wisconsin law that the state’s courts have rejected, the Seventh Circuit ruled.
The decision represents another twist in a long-running saga of lead paint litigation in Wisconsin, which plaintiff lawyers have pursued around the nation under the theory that manufacturers should be forced to pay plaintiffs over exposure to lead paint that was applied decades or even a century earlier. The Wisconsin Supreme Court gave the green light to lead paint litigation when it extended its “risk-contribution” theory from pharmaceuticals to lead paint pigment.
The state’s high court created risk-contribution as a way for plaintiffs to sue companies over dangerous products despite the fact they couldn’t prove which company actually made the product that injured them. The court said it was enough to show multiple companies made the same, interchangeable product, and liability would be apportioned among them.
The Wisconsin Supreme Court declared lead pigment to be a fungible product subject to risk contribution in 2005. Then-Judge David Prosser dissented, saying “this court has now created a remedy for lead paint poisoning so sweeping and draconian that it will be nearly impossible for paint companies to defend themselves or, frankly, for plaintiffs to lose.”
The Supreme Court proved him wrong in 2009, ruling in a second case that the lead in lead pigment was an essential part of the product, eliminating the possibility of a product-defect claim.
In 2011 the Wisconsin legislature effectively overruled the 2005 decision subjecting pigment manufacturers to liability. In 2013 legislators made it retroactive, to guarantee “businesses may conduct activities in this state without fear of being sued for indefinite claims of harm from products” they may have sold decades before.
In 2014, the Seventh Circuit, interpreting Wisconsin law, decided the 2013 law violated the Wisconsin Constitution because it lacked a rational basis and extinguished the rights of plaintiffs who had already sued the paint industry. The Wisconsin Supreme Court split 3-3 on the question in 2016. The Seventh Circuit said that left a six-year window from 2005 to 2011 when plaintiffs could rely upon risk contribution.
In Burton v. du Pont, the federal appeals court declined to revisit its earlier interpretation of Wisconsin law, despite the legislature passing two statutes eliminating the risk-contribution theory and the Wisconsin Supreme Court’s decision rejecting its application to pigment manufacturers. Since the state’s highest-court split on the question, the 7th Circuit said, “it would be hard to imagine better evidence that an issue of state law remains unsettled.”
The court dismissed claims against Sherwin-Williams and ordered a new trial for Armstrong on negligence claims, and a new trial for DuPont on negligence and strict liability. The trial judge erred by allowing plaintiffs to present evidence of du Pont’s manufacturing of lead paint, as opposed to pigment, the appeals court said, when du Pont only manufactured pigment for seven years ending in 1924.
Under the Wisconsin Supreme Court’s 2005 decision the Seventh Circuit still treats as good law, only claims over lead pigment are allowed, the court said.
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.