A federal court in Wisconsin has reportedly determined that children allegedly poisoned by lead paint can pursue damages against a number of companies without identifying the specific company that manufactured the product. Burton v. Sherwin-Williams Co., No. n/a (U.S. Dist. Ct., E.D. Wis., decided April 2011). According to a news source, the ruling conflicts with a decision reached by another jurist sitting on the same bench and recognizes a theory eliminated this year by the state legislature. The “risk-contribution” theory was apparently adopted by the Wisconsin Supreme Court in 2005; the jurist who wrote the opinion was subsequently defeated in a retention election, and the legislature passed a tort-reform bill in January 2011 that requires a plaintiff to prove that a particular manufacturer made the product that allegedly harmed her.
Before February 1, the date the new law took effect, plaintiffs’ lawyers apparently filed lawsuits against six companies in federal court on behalf of more than 150 children who claim they ingested lead paint over the past decade. The federal district court’s chief judge reportedly dismissed a lead-paint lawsuit filed on behalf of one of the children, holding that a company cannot be held liable retroactively, in the absence of proof that its product harmed someone, without violating its constitutional due process rights. U.S. District Court Judge Lynn Adelman refused to dismiss the lead-paint lawsuit assigned to his courtroom, rejecting the defendants’ due process violation claims. The matter will require a Seventh Circuit Court of Appeals ruling to resolve the conflict. See (Milwaukee) Journal Sentinel, April 10, 2011.
Judge Adelman’s decision to preside over a number of lead-paint cases filed previously was upheld by the Seventh Circuit Court of Appeals in 2010. Paint companies sought his recusal, arguing that a law review article he co-authored provided a favorable comment on the state supreme court ruling adopting the risk-contribution theory. Additional information about the ruling appears in the June 24, 2010, Issue of this Report.