760 F.3d 600
7th Cir.2014Background
- Gibson filed state-law negligence and strict-liability claims in Wisconsin for injuries from white lead carbonate pigment used in his home; he cannot identify the specific manufacturer who supplied the pigment.
- Wisconsin’s Thomas v. Mallet framework allows recovery by a plaintiff who proves the defendant produced or marketed white lead carbonate sometime during the house’s existence, shifting causation burden to manufacturers if records exist.
- The district court held that risk-contribution theory violates substantive due process and granted summary judgment for the pigment manufacturers; the Seventh Circuit reversed.
- Several manufacturers were named; Millennium Holdings LLC was dismissed; the remaining six included ARCO, American Cyanamid, Armstrong Containers, DuPont, NL Industries, Atlantic Richfield, and Sherwin-Williams.
- Wisconsin Statute 895.046(1g) retroactively extinguished risk-contribution theory in pending cases; Gibson argued this retroactive application violates Wisconsin due-process protections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of risk-contribution theory | Gibson: theory is valid under Wisconsin law and not unconstitutional. | ARCO: theory violates substantive due process underEastern Enterprises framework. | Risk-contribution theory survives substantive due process. |
| Retroactive invalidation by Section 895.046 | Gibson has vested rights; retroactive extinguishment violates Wisconsin due process. | Election to extinguish is rational public policy under state law. | Wisconsin Section 895.046 retroactive application violates state due-process; Gibson's claims remain viable. |
| Effect of Eastern Enterprises on answering the federal challenges | Eastern Enterprises supports invalidating retroactive liability assignments. | Eastern Enterprises provides no controlling federal standard here. | Eastern Enterprises does not bind the due-process analysis; limits on retroactivity are governed by Rogers and state law. |
Key Cases Cited
- Thomas v. Mallet, 701 N.W.2d 523 (Wis. 2005) (extends risk-contribution to white lead pigment cases; burden shifts to manufacturers)
- Collins v. Eli Lilly Co., 342 N.W.2d 37 (Wis. 1984) (origin of risk-contribution theory for DES cases)
- Eastern Enterprises v. Apfel, 524 U.S. 498 (U.S. Supreme Court 1998) (takings and due-process discussion on retroactivity and liability)
- Martin by Scoptur v. Richards, 531 N.W.2d 70 (Wis. 1995) (retroactivity and vested rights in damages context)
- Matthies v. Positive Safety Mfg. Co., 628 N.W.2d 842 (Wis. 2001) (retroactivity balancing private vs public interests)
- Rogers v. Tennessee, 532 U.S. 451 (U.S. 2001) (common-law development retroactivity considerations)