Lawyers warn lead-paint case could increase liability for manufacturers

Legislature feared State Supreme Court decision would open door to unfettered lawsuits

By Erika Strebel
The Daily Record Newswire
MILWAUKEE, WI — A lawyer in a prominent lead-paint case is warning that a ruling against his client could have unwelcome side effects for manufacturers of a large variety of building products.

Tony Dias, who is representing the paint maker Sherwin-Williams in a lead-paint case stretching back a decade, warned that the litigation’s outcome is likely to be of consequence for more than just one industry. Dias said a finding against his client and other defendants could give free rein to lawsuits against manufacturers of “all kinds of products, tools, building materials, product components, and raw materials plaintiffs might try to claim are fungible, including chemicals, solvents, nuts, and bolts.”

Specifically, Dias and other defense attorneys are worried about lawsuits that were filed before 2011, when the Wisconsin Legislature passed a law setting strict limits on whom a plaintiff can successfully sue for harm caused by a particular product.

Lead paint has been at the center of much wrangling over liability ever since the Wisconsin Supreme Court handed down its landmark ruling in the case of Thomas v. Mallet. That decision, reached in 2005, meant that plaintiffs no longer had to prove a particular manufacturer made the paint suspected of causing harm.

Suddenly, it became enough to show that a given manufacturer had a share of the market at the time of the sale of lead paint that is now suspected of causing harm. As business representatives feared, a wave of lawsuits followed the Thomas ruling.

Among those to take legal action was Yasmine Clark, a Milwaukee resident who alleges that her health was seriously harmed by her exposure to lead paint at homes she lived in when she was 2 and 5 years old. Clark’s ability to press her claims came into question in 2011, when state legislators responded to fears that the Thomas case had opened the door to unfettered lawsuits by passing a law meant to undo the decision.

It was later determined, though, that the law would apply only to newly filed cases. Excluded were those, like Clark’s, that were already moving through the justice system.

Not happy with that interpretation, state legislators responded once again, in 2013, with a new law. This time, they were explicit that their undoing of the Thomas decision was meant to apply both prospectively and retroactively.

The courts, though, have been of a different mind. In 2014, Milwaukee Judge David Hansher decided to let Clark and her attorney, Peter Earle, proceed with her lawsuit after finding that the 2013 law was unconstitutional because it retroactively took away Clark's right to bring a claim.

The paint manufacturers quickly turned to the state Court of Appeals, which asked the state Supreme Court to weigh in and settle the matter once and for all. Yet, rather than shut the book on the matter, the state’s high court questioned lawmakers’ ability to retroactively invalidate a lawsuit that was already proceeding.

Rather than reach a decision themselves, the justice chose, in April, to send the case back to the Court of Appeals. The defendants have now filed motions calling for additional briefing and oral arguments.

There’s no way to predict how the District 1 Court of Appeals will decide the case because the three-judge panel that will oversee the proceedings has yet to be chosen, said Peter Carstensen, law professor at the University of Wisconsin. On the surface, the outcome of Clark’s case appears likely to be of consequence in lawsuits that, like hers, were filed after the Thomas decision but before lawmakers’ attempt to six years later to unravel that ruling.

Lawyers have estimated about 170 cases fall into that category. Of those, only about six stand to have their outcomes changed.

The defendant paint manufacturers are also arguing that a finding of unconstitutionality at the appellate court level would let plaintiffs sue any company over product liability as long as their date of exposure was before legislators passed the 2011 law undoing Thomas.

No matter the outcome, lead-paint cases have been enough of a source of concern in recent years that the eventual denouement of the Clark case is virtually certain to be interpreted as significant in the courts’ interpretation of liability laws. Businesses responded to the original Thomas ruling with enough furor that they helped unseat the Supreme Court Justice, Louis Butler Jr., who wrote the decision.

Some see the case as a test of whether there is any place for the risk-contribution theory in Wisconsin’s court system.

Carstensen said that, although he often finds himself siding with plaintiffs, he’s not enthusiastic about holding paint manufacturers liable today for products that were sold decades ago. Rather than those who are actually culpable, the cost of righting the wrong is likely to fall on anyone shopping for paint.

“To me it’s not a very sensible solution and it’s economically and incredibly inefficient,” Carstensen said. “All those lawyer fees have got nothing to do with solving the lead paint problem.”