92 F.4th 688
7th Cir.2024Background
- Approximately 170 plaintiffs brought toxic tort claims alleging harm from exposure to white lead carbonate (WLC) paint in Milwaukee homes.
- Plaintiffs sought to hold several WLC manufacturers liable under negligence and strict liability theories, relying on Wisconsin’s unique "risk-contribution" doctrine for WLC cases (viable from 2005-2011).
- Early in the litigation, many plaintiffs filed as part of joint complaints; a district court case management order grouped claims into "waves" for phased discovery and trial (Wave 1, Wave 2, etc.), but cases were not formally consolidated or severed.
- The district court granted summary judgment against the first two trial waves, then extended those adverse rulings to most remaining plaintiffs under "law of the case" and issue preclusion doctrines.
- Plaintiffs appealed: some argued they should not be bound by earlier adverse rulings because they were not party to prior trials, and sought to relitigate elements like the duty to warn about lead dust.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wave 2 plaintiffs get reconsideration | New lead dust evidence warranted revisiting negligence claims after earlier adverse ruling. | No new evidence; evidence existed and was strategic choice not to use. | Denied reconsideration; evidence not "new." |
| Law of the case application for Group 3 | No; bellwether (Wave 2) separation functionally severed claims. | Plaintiffs joined under single complaint; prior ruling applies. | Law of case applies; joinder means rulings are binding. |
| Issue preclusion against Group 4 | Violates due process; Group 4 was not party/privity, had no full opportunity to litigate. | Group 4 on notice; coordinated proceedings suffice for preclusion. | Preclusion improper; Group 4 not in privity, due process prohibits. |
| Revisiting Burton II on Wisconsin law | Prior circuit precedent on duty to warn, defect standard was wrong; certify to WI Supreme Court. | Precedent is binding; no overruling by state high court. | Precedent followed; certification and overruling denied. |
Key Cases Cited
- Taylor v. Sturgell, 553 U.S. 880 (2008) (establishes limits and exceptions to nonparty issue preclusion due process)
- Montana v. United States, 440 U.S. 147 (1979) (collateral estoppel standards and due process)
- Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) (law of the case, subsequent stages in same case)
- Hansberry v. Lee, 311 U.S. 32 (1940) (adequate representation requirement for binding nonparties)
- Godoy ex rel Gramling v. E.I. du Pont de Nemours & Co., 768 N.W.2d 674 (Wis. 2009) (Wisconsin duty to warn law in product liability)