In a split decision, a Wisconsin Supreme Court ruled that a Milwaukee teenager can sue paint manufacturers for his injuries even though he cannot prove which ones may have made the paint that may have sickened him, and he has already been awarded more than $300,000 from landlords of the dwellings in which he lived.
Steven Thomas claims he sustained lead poisoning by ingesting lead paint from accessible painted surfaces, paint chips, and paint flakes and dust at two different houses he lived in during the early 1990s, leading to permanent mild retardation.
Defendants include Sherwin-Williams, ConAgra Grocery Products, American Cyanamid Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries Inc. and SCM Chemicals Inc.
The court extended the “risk contribution theory” to lead paint manufacturers, which holds that those who cannot trace their injuries to a specific company can still collect damages if they can prove a product was dangerous, it created their injuries and the defendant negligently produced or marketed it.
Thomas has already received more than $324,000 from the landlords of the two homes where he believed he was sickened.
According to an Associated Press report, one of the dissenting judges complained the decision would make it nearly impossible for paint companies to defend themselves against similar suits and would make the state “the mecca for lead paint suits.”
Tom Graves, NPCA vice president and general counsel told Coatings World that the decision should worry all industry in the state.
“The incredibly open-ended nature of this decision, which twists the sense of the Wisconsin Constitutional provision totally out of shape, should have all of Wisconsin’s industry base legitimately worried,” Graves said. “The dissenting justices point out forcefully that entire industries in that state are now rendered completely vulnerable to massive lawsuits brought by out-of-state ‘victims’ in cases brought by out-of-state law firms. The fact that a landlord apparently violated his legal duties and settled for $320,000 for the purported harmful lead exposure to the plaintiff in the Thomas case is completely obscured by the majority opinion’s rush to keep the remedy perpetually open, unjustifiably exposing the old lead pigment industry to potential liability.”
Graves said it is “alarming that expansive theories of liability which transcend the fundamentally fair requirements of product identification and proof of causation, such as the Wisconsin Supreme Court’s imposition of so-called ‘risk contribution,’ are concocted purely by judicial fiat and implemented long after the fact.”
Graves added, “All Wisconsin companies today selling legal products in good faith have thus been served notice that the tail of absolute liability for any harm associated with any aspect of their industry’s product will be poised to snap hard into their profits and dampen their growth and job creation at any moment in the future. Certainly, this is a situation which cries out for state legislation to clarify the appropriate boundaries for the application of the relevant