CHICAGO — A federal appeals panel has stripped away a $6 million verdict against three paint manufacturers, saying a federal judge committed "three significant legal errors" in allowing a Wisconsin jury to slap judgments on the companies that in decades past produced lead paint.
Judge Amy St. Eve of the U.S. Seventh Circuit Court of Appeals wrote the opinion issued April 15. Judges Diane Wood and Michael Scudder concurred.
The plaintiffs in the consolidated matter are three young men who, according to court documents, were diagnosed with lead poisoning about 20 years ago. The alleged lead poisoning was allegedly linked to paint on the walls of their Milwaukee childhood homes.
Though the men couldn’t identify a specific company responsible for making white lead carbonate, the paint pigment they say caused their brain damage and other injuries, they sued under the “risk contribution” liability theory, which would allow them to “apportion liability among the ‘pool of defendants’ who could have caused the injury,” St. Eve wrote.
Though the men sued six companies, a jury found only three liable: E.I. du Pont, Sherwin-Williams and Armstrong Containers, a corporate successor of the MacGregor Lead Company. Facing the prospect of paying plaintiffs $2 million each, the companies appealed, challenging several rulings of Judge Lynn Adelman, of the Eastern District of Wisconsin, in Milwaukee.
The panel said it saw no error in most rulings and said Judge Adelman showed “thoughtful attention and diligent effort throughout this complex case.”
The panel noted the three plaintiffs' lawsuits were the first of 170 similar lawsuits to go to trial from 2005-2011, a window in which they could sue makers of while lead carbonate under the risk-contribution theory.
St. Eve said the defendants were correct on three key issues.
First, she said Adelman improperly allowed the jury to find the companies liable as paint manufacturers, when precedent established liability only for makers of the white lead carbonate pigment.
Second, the panel agreed with Sherwin-Williams that the jury shouldn’t have been able to find it negligent, without proof of a defective product.
Third, Armstrong and Sherwin-Williams argued the jury was improperly allowed to hold them liable on strict liability claims without establishing they had a duty to warn of the dangers of lead paint, or finding any proof the lack of such warning led to the plaintiffs' alleged lead poisoning.
Although all three companies did make carbonate and finished paint in the 20th Century, St. Eve said, the risk contribution legal theory applies only to those who make the raw ingredient. The panel noted DuPont made lead carbonate only from 1917 to 1924, but made lead paint products through 1966. The liability window for Sherwin-Williams should’ve been 1910 to 1947, she said, but the jury considered its history from 1880 to 1969. As such, Adelman’s decision “significantly expanded the scope of the defendants’ potential liability and the evidence at trial" - an error large enough to require a new trial.
Whereas Adelman said the companies could be found negligent because they sold lead paint after becoming aware of its potential dangers, the panel determined Wisconsin law requires proof of a defective product to substantiate a negligence claim. Though dangerous, the lead paint wasn’t defective, the panel said.
The strict liability verdicts suffered under similar reasoning, St. Eve continued, saying plaintiffs didn’t show how the carbonate was defective when it left control of pigment makers. The companies sold these products decades before the plaintiffs encountered the paint, in a time when the dangers were less widely known.
The appellate judges further noted Adelman erred by issuing a post-judgment order placing the burden on the paint makers to prove warnings they issued in the late 1960s about the safety of lead paint were sufficient to shield liability. Although that improper shift normally would justify a new trial, St. Eve wrote, “any such relief would be redundant because Sherwin-Williams and Armstrong are already entitled to judgment as a matter of law on the strict liability claims, given the absence of a product defect.”
The panel said it saw no merit in any remaining challenges, with the exception of agreeing Adelman abused judicial discretion by allowing a pediatrcian, identified as Dr. James Besunder, to testify about IQ loss without ensuring Besunder used a reliable methodology to reach his conclusions. The appellate judges said there is a high likelihood the testimony, which should not have been allowed at trial, played a significant role in persuading the jury to issue its $6 million verdicts.
Judge St. Eve noted “there are a slew of similar cases pending at the district court and moving toward trial," making this appellate decision key to resolving important legal questions presented in those other cases, as well.
Although the panel reversed the judgements and ordered a new trial for Armstrong and DuPont, they declined to appoint a new judge to replace Adelman to hear the renewed proceedings. St. Eve wrote “the interests of judicial efficiency favor retaining Judge Adelman as the trial judge in these cases.”
The plaintiffs have been represented in the case by attorneys Fidelma Fitzpatrick and Frederick Baker, of the firm of Motley Rice, of Mount Pleasant, S.C., and Providence, R.I.; and Mark R. Miller, of the firm of Wexler Wallace, of Chicago.
The paint makers have been represented by, among others, attorneys Timothy Bascom, of the firm of Bascom Budish & Ceman, of Germantown, Wis.; Brian D. Schmalzbach, of McGuireWoods LLC, of Richmond, Va.; and Leon F. DeJulius, of Jones Day, of New York.