527 F.Supp.3d 982
E.D. Wis.2021Background
- Plaintiffs (Allen, Trammel and others) allege childhood lead poisoning from ingesting residential paint containing white lead carbonate (WLC); defendants are manufacturers, sellers, or successors of WLC.
- Plaintiffs proceed under Wisconsin’s risk-contribution theory (Collins/Thomas), which allows a prima facie case by showing a defendant produced the type of product that contributed to public risk.
- Multiple summary judgment motions were filed by defendants (Sherwin‑Williams, Armstrong, DuPont, Atlantic Richfield, etc.); the court addressed issues of causation, successor liability, fungibility, affirmative defenses, mitigation, and preemption.
- Court deferred ruling on intervening/superseding‑cause as a public‑policy remoteness inquiry until after trial.
- Court denied Armstrong’s summary judgment that MacGregor WLC could not have contributed (burden shifts to defendants to prove non‑involvement); but granted partial summary judgment that Armstrong is successor‑in‑interest to MacGregor per the Burton ruling.
- Court held WLC fungible as a matter of law; rejected misuse defense as a complete bar (passive deterioration is foreseeable misuse but may be considered in fault allocation); denied many other defense motions, with limited grants (e.g., FHSA preemption for certain post‑1966 labels).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Intervening / superseding cause defense | Preclude defendants from asserting parents/caregivers/landlords/city as superseding causes | Defendants may assert superseding causes | Denied — court will defer remoteness/superseding‑cause analysis until after trial per Wisconsin guidance |
| Armstrong: could MacGregor WLC have contributed? | Plaintiffs: Thomas shifts burden to defendant to show its product was not in market; absence of records favors plaintiffs | Armstrong: expert excluded Scotch Laddie; no evidence MacGregor brands sold in Milwaukee | Denied — factual dispute remains; Armstrong not shown by preponderance it could not have contributed |
| Armstrong successor‑in‑interest to MacGregor | Plaintiffs: Burton order establishes successor liability via 1983 asset purchase agreement | Armstrong: contract ambiguity, says Illinois law should apply | Granted in part — court adheres to Burton, applies Wisconsin law, finds the agreement reasonably construed to include assumption of unknown liabilities |
| Fungibility of WLC | Plaintiffs: WLC fungible so identification unnecessary | Sherwin‑Williams: reargues earlier points | Granted — court again holds WLC fungible as matter of law (Burton reasoning) |
| Affirmative defenses: statute(s), constitutional, misuse | Plaintiffs: move to strike defenses | Defendants: raise statutes of limitations/repose, constitutional claims, misuse | Statute defenses withdrawn as moot; constitutional defenses denied without prejudice; misuse defense GRANTED as a complete defense (no evidence of misuse), but evidence of passive deterioration may be used in fault allocation |
| Failure to mitigate damages (minors) | Plaintiffs: defendants cannot show plaintiffs unreasonably failed to mitigate | Defendants: plaintiffs/minors failed to pursue medical/behavioral treatment | Denied — court finds sufficient evidence for jury that certain plaintiffs breached mitigation duty (parents’ decisions attributed to minors) |
| Threshold for using risk‑contribution (must show "insurmountable obstacles" or run testing first) | Plaintiffs: no prerequisite showing required; Thomas already establishes framework | Sherwin‑Williams: plaintiffs should have tried to identify manufacturers or run chemical tests before invoking risk‑contribution | Denied — court holds no additional precondition; burden shifts to defendants to exculpate via time/geography/chemical identity; defendants better placed to produce records/tests |
| Inclusion of National Lead (NL) in liability pool | Plaintiffs: defendants cannot show NL liable or allocate damages to NL | Defendants: evidence of NL involvement, industry knowledge, marketing and lack of warnings | Denied — sufficient evidence exists for a jury to find NL knew risks, marketed WLC, failed to warn, and thus could be included in pool for allocation |
| First Amendment defense (advertising, trade‑association activity) | Plaintiffs: liability for product, speech only evidence | Sherwin‑Williams: protected speech/activity should bar liability | Denied — plaintiffs do not seek liability solely for protected speech; such evidence may be used to prove elements of claims |
| Negligence / strict liability (defect, duty to warn, causation, substantial change, post‑1954 labels, preemption) | Plaintiffs: WLC defective under consumer‑contemplation; warnings may have prevented harms; causation can be inferred; some pre‑1960 risks not contemplated | Sherwin‑Williams/DuPont: no defect at sale, no duty to these plaintiffs, substantial change after sale (paint deterioration), inadequate causation proof, post‑1954 labels adequate, FHSA/Federal law preempts state claims after certain amendments | Mostly denied — court holds plaintiffs have sufficient evidence for jury on defect (consumer contemplation), duty of ordinary care exists, substantial change issue is factbound (jury), causation on warnings may be inferred by jury, post‑1954 warnings insufficient as matter of law for some claims, but partial grant for FHSA preemption where applicable |
| DuPont: nonproduction after 1924 and Thompson's house 1926 | Plaintiffs: DuPont marketed WLC integrated into other products | DuPont: exculpation under Thomas (no production after 1924) | Denied — court follows prior ruling that integrating purchased WLC into products and selling can constitute marketing under Thomas |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary‑judgment standard)
- Burton v. American Cyanamid, 341 F. Supp. 3d 941 (E.D. Wis. 2018) (prior rulings on successor status, fungibility, and misuse addressed and followed)
- Collins v. Eli Lilly Co., 116 Wis. 2d 166 (establishes risk‑contribution burden‑shifting framework)
- Dippel v. Sciano, 37 Wis. 3d 443 (elements of strict products liability / Restatement §402A)
- Green v. Smith & Nephew AHP, Inc., 245 Wis. 2d 772 (consumer‑contemplation test for defect/unreasonably dangerous)
- Haase v. Badger Mining Corp., 274 Wis. 2d 143 (substantial‑change doctrine in strict liability)
- Godoy ex rel. Gramling v. E.I. du Pont de Nemours, 768 N.W.2d 674 (discussion of product‑defect categories under Wisconsin law)
- Lemmerman v. Blue Cross & Blue Shield, 713 F. Supp. 2d 791 (causation and warning‑effect evidence)
- Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir.) (foreseeability limits negligence where misuse is highly independent)