334 F. Supp. 3d 949
E.D. Wis.2018Background
- Plaintiffs sue multiple pigment manufacturers (Sherwin‑Williams, Armstrong/John R. MacGregor, American Cyanamid, Atlantic Richfield) under Wisconsin "risk contribution" strict products liability and negligence theories for childhood lead poisoning from white lead carbonate (WLC) used in residential paint.
- Thomas (Wis. 2005) establishes a risk‑contribution framework: plaintiff need not identify the single manufacturer but must prove (inter alia) WLC was defective when leaving pigment manufacturers, defect caused injury, manufacturers were in the pigment business, and product reached users without substantial change. Burden shifts to each defendant to prove it did not produce/market WLC in the relevant time/geographic market.
- Plaintiffs proceed on a failure‑to‑warn theory of defect (strict liability) and a negligent failure‑to‑warn theory; defendants move for summary judgment asserting no duty to warn (or that duty was to paint manufacturers only), inadequate causation, chemical analysis excluding them, geographic‑market defense, and statutory bars.
- Undisputed historical evidence shows Sherwin‑Williams knew of lead toxicity and industry efforts to minimize public awareness; MacGregor/Scotch Laddie labels included warnings. Cyanamid purchased a WLC plant in Chicago (1971) and did not make paint; Armstrong claims limited successor status to MacGregor. Plaintiffs' exposures occurred in the 1990s–2000s.
- Court finds: negligence failure‑to‑warn claims fail where defendants had reason to believe end‑users/caregivers already knew of lead risks; strict liability failure‑to‑warn claims survive in part because duty in strict liability is to potential users at sale and causation is evaluated under the risk‑contribution model.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of duty to warn (strict liability) | WLC manufacturers knew hazards and failed to warn, making product defective when sold | No duty to warn end users; dangers were obvious or known; some were only bulk/component suppliers | Fact issues exist for Sherwin‑Williams and MacGregor re: duty; Cyanamid entitled to summary judgment where it only supplied sophisticated paint manufacturer and never made paint |
| Negligent failure to warn (duty to plaintiff) | Manufacturers breached duty to plaintiffs/caregivers by not adequately warning | Manufacturers had reason to believe end‑users/caregivers knew lead risks (industry/warnings existed) | Duty to warn in negligence requires a duty to the plaintiff; evidence shows defendants had reason to believe users knew risks, so negligent failure‑to‑warn claims based on that duty are dismissed |
| Causation under Thomas (strict liability/failure to warn) | Plaintiffs need not identify a single manufacturer; must show inadequately‑warned WLC on market was a substantial factor in causing injury | Defendants: plaintiffs must show they personally would have altered behavior if properly warned and offer expert proof | Court: Under risk‑contribution, causation requires that inadequately‑warned WLC on the market in the residence era be a substantial factor; plaintiffs may rely on permissible inferences about human behavior—claims survive summary judgment on causation issue |
| Component/bulk supplier & sophisticated user defenses | Plaintiffs: component suppliers can be liable under Thomas risk‑contribution | Defendants: bulk supplier/sophisticated user doctrines shield WLC suppliers who sold only to knowledgeable paint manufacturers | Court: bulk supplier/sophisticated user doctrines apply where supplier had no practical means to warn end users and supplied only sophisticated paint manufacturers; Cyanamid gets summary judgment; Armstrong/others only to the extent they sold to third‑party paint makers |
Key Cases Cited
- Thomas v. 285 Wis.2d 236 (Wis. 2005) (risk‑contribution framework for WLC strict liability; elements and burden‑shifting)
- Godoy v. E.I. du Pont de Nemours & Co., 319 Wis.2d 91 (Wis. 2009) (manufacturer duty to warn and comment h to Restatement §402A applied to strict liability warning defect)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard; draw inferences for nonmovant)
- Blasius v. Angel Automotive, Inc., 839 F.3d 639 (7th Cir.) (summary judgment standard application)
- Strasser v. Transtech Mobile Fleet Serv., Inc., 236 Wis.2d 435 (Wis. 2000) (negligent failure‑to‑warn duty analysis quoting Restatement §388)
- Haase v. Badger Mining Corp., 266 Wis.2d 970 (Wis. Ct. App.) (sophisticated user doctrine limits duty to warn for component manufacturers)
- Tanner v. Shoupe, 228 Wis.2d 357 (Wis. Ct. App.) (adequacy of warnings and jury question)
- Lemmermann v. Blue Cross Blue Shield of Wis., 713 F.Supp.2d 791 (E.D. Wis.) (failure‑to‑warn in strict liability and negligence often overlap)
- Collins v. 116 Wis.2d 166 (Wis. 1984) (geographic/time market defenses in risk‑contribution cases require defendant show its product could not have reached plaintiff)