Federal Court of Appeals Overturns Ruling on $6 Million Lead Paint as of 2019

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A federal appeals court acquitted one paint manufacturer and ordered a new trial for two others in a 2019 case where a jury awarded $6 million in 2019 to three men whose brain damage was attributed to their years of exposure to lead paint.

The US 7th Circuit Court of Appeals acquitted paint manufacturer Sherwin-Williams and ordered a new trial for two others, Armstrong and DuPont.

The federal court ruled that the district court judge in the 2019 jury trial improperly expanded the scope of the state’s liability theory regarding lead paint to allow the jury to find liability where it shouldn’t be.

According to the risk contribution theory, a claimant does not have to prove that the conduct of a specific defendant caused its harm. Instead, liability can be divided among the “pool of defendants” who could have caused the damage.

The Wisconsin Supreme Court in a 2005 decision (Thomas ex rel. Gramling v. Mallett) applied the risk contribution theory of liability only to makers of a paint ingredient known as lead white carbonate; it didn’t extend it to paint manufacturers who didn’t make that ingredient themselves, but used carbonate from another company in their products.

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The three manufacturing defendants argued that the risk contribution theory only applies to them if they were producing lead white carbonate, which it did not. The court agreed:

“[T]The Wisconsin Supreme Court has made it clear that such companies are liable under the risk contribution theory only in their capacity as producers of white lead carbonate pigment. In practice, this means that under the risk contribution theory, a paint manufacturer cannot be held liable for the sale of a finished product containing lead white carbonate from another company. Only the manufacturer of the lead white carbonate can be held liable.”

The lower court’s error requires a new trial because it “significantly expanded the scope of the defendants’ potential liability and evidence at trial. It also robbed the defendants of the ability to build an appropriate defense,” states the 7th Circuit Opinion (Glenn Burton, Jr. v. EI DuPont de Nemours).

Judge Amy St. Eve noted in the 62-page court ruling that the defendant paint manufacturers had sued for years on the assumption that they were liable only in their capacity as pigment manufacturers. Less than six weeks before the trial, however, the defendants first learned that they were also liable as a manufacturer of paint products containing lead white carbonate.

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“The court’s latest, legally incorrect ruling left them struggling to adapt their defense to the plaintiffs’ recently expanded liability theory,” St. Eve wrote.

The lower court based its more extensive reading of Thomas on the use of the word “marketed” by the Wisconsin Supreme Court. The court maintained that a company that sells lead-based paint is “marketing” lead pigment even if it does not “manufacture” it. Thus, the court reasoned, a paint manufacturer could be liable for selling paint containing lead white carbonate from another company. The federal court disagreed with this approach, calling it a “tense interpretation of marketing.”

The appeals court also found that the lower court erred in allowing testimony about the effect of lead paint on a witness’s IQ without questioning the reliability of the unprecedented methodology set forth by the witness.

The federal government banned lead-based paint for residential use in 1978, and Wisconsin followed suit in 1980. Even after these bans, lead-based paint remained on the walls of many homes across the country.

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The plaintiffs in these consolidated Wisconsin cases are three young men who grew up in Milwaukee homes with lead-based paint on the walls. They were diagnosed with lead poisoning as young children in the 1990s or early 2000s. Years later, they sued several manufacturers of lead white carbonate, seeking damages for brain damage and other injuries resulting from their ingestion of lead paint particles.

After years of pre-trial litigation, the plaintiffs went to court against five white lead carbonate manufacturers. The jury found three of the manufacturers liable and awarded the plaintiffs $2 million each. The three defendants charged were EI du Pont de Nemours and Co., SherwinWilliams Co. and Armstrong Containers. The three appealed against a long list of court decisions.

The appeals court concluded that Sherwin-Williams is entitled to a verdict; Armstrong is entitled to a legal judgment on the strict liability claims and to a retrial for the negligence claims, and DuPont is entitled to a retrial for both claims.

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