Products Liability Law Daily Wisconsin high court deadlocked over constitutional challenge raised in minor’s lead paint poisoning case
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Monday, April 18, 2016

Wisconsin high court deadlocked over constitutional challenge raised in minor’s lead paint poisoning case

By Pamela C. Maloney, J.D.

Being equally divided on the question of whether to affirm or reverse a state trial court determination that retroactive application of Wis. Stat. §895.046, which prohibits plaintiffs from asserting claims against manufacturers of white lead carbonate (WLC) under the risk-contribution theory as articulated in Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523, is unconstitutional, the Wisconsin Supreme Court remanded the case to the state court of appeal. The court of appeals had certified the question to the state high court in light of a decision by the U.S. Court of Appeals for the Seventh Circuit decision in Gibson III, holding that §895.046 cannot be applied retroactively in light of the state’s constitution’s guarantee of due process because it would deprive a plaintiff of a vested property right in violation of the due process protections guaranteed by the Wisconsin Constitution (Clark v. American Cyanamid Co., April 15, 2016, per curiam).

Yasmine Clark, a minor, allegedly was poisoned and suffered significant irreversible neurological damage following her exposure to paint that contained white lead carbonate while residing at two different rental properties in Milwaukee. The minor’s guardian ad litem filed negligence and strict liability claims against numerous manufacturers and sellers of WLC, including American Cyanamid Co.; E.I. DuPont de Nemours and Co.; NL Industries, Inc.; Atlantic Richfield Co.; Sherwin-Williams Co.; Milwaukee County Department of Health and Human Services; Armstrong Containers, Inc. (the WLC defendants).

Risk-contribution theory. Because the minor could not identify which manufacturer or manufacturers produced the WLC to which she had been exposed, the WLC defendants were sued under the “risk contribution theory” first pronounced in Collins v. Eli Lilly, 116 Wis. 2d 166, 193-95, 342 N.W.2d 37 (1984), and which was later extended to cases involving white lead carbonate poisoning in ThomasThomas generally holds that once a plaintiff has established the other elements of a negligence or strict-liability claim and has met the prerequisites to the application of risk contribution, the burden of proof shifts to each defendant to prove that it did not produce or market white lead carbonate during the relevant time period or in the geographic market where the exposure occurred.

Related litigation and legislation. While the Clark case was pending, the U.S. District Court for the Eastern District of Wisconsin, in Gibson v. American Cyanamid Co., 719 F. Supp. 2d 1031, 1052 (E.D. Wis. 2010) (Gibson I), ruled that the risk-contribution doctrine as expanded in Thomas violated the federal substantive due process rights of one of the WLC defendants in that case. Gibson I was later extended to the remaining WLC defendants in Gibson v. American Cyanamid Co., 750 F. Supp. 2d 998, 999 (E.D. Wis. 2010) (Gibson II). That decision was appealed.

While the appeal was pending in Gibson II, the trial court stayed the instant case. The stay was issued shortly after the state legislature enacted §895.046, which abrogated Thomas prospectively as of February 1, 2011. While both Gibson II was pending before the Seventh Circuit and this case was pending in the state trial court, the Wisconsin legislature amended §895.046, making its abrogation of Thomas retroactive in nature.

The trial court determined that retroactive application of §895.046 was unconstitutional as a violation of the minor’s right to due process. About four months later, the U.S. Court of Appeals for the Seventh Circuit decided the appeal in Gibson III, 760 F.3d 600, 609, cert. denied, 135 S. Ct. 2311 (7th Cir. 2014) [see Products Liability Law Daily’s July 25, 2014 analysis]. The Seventh Circuit, consistent with the trial court’s decision in this case, ruled that §895.046 cannot be applied retroactively in light of the state’s constitution’s guarantee of due process. The WLC defendants appealed the trial court’s decision.

Parties’ constitutional arguments. The WLC defendants argued that §895.046 is constitutional because it does not impair a vested right and because the public’s interest in abrogating Thomas retroactively outweighs the minor’s private interest in her claims. Essentially, the WLC defendants contend that becauseThomas did not expand Collins’ risk-contribution theory until two years after the minor was injured initially, the minor had no vested right to sue them for her exposure to WLC.

On the other hand, the minor, through her guardian, argued that she did have a vested right in her claim because even if Thomas had not been decided when she was first exposed to WLC, Wisconsin law already had adopted the risk-contribution theory in Collins.

Certification of question. Given the unsettled state of the law, the pressing need for a final resolution, and the potential conflict with federal case law—as pronounced by the Seventh Circuit in Gibson II—should the appellate court find the statute constitutional, the state court of appeals had turned to the state supreme court for guidance on the issue of the constitutionality of §895.046. The Wisconsin high court was unable to resolve the question and, thus, vacated its order granting certification and remanded the case to the state court of appeals.

The case is No. 2014AP775.

Attorneys: Peter G. Earle (The Law Office of Peter Earle, LLC) for Yasmine Clark. Jeffrey K. Spoerk (Quarles & Brady LLP) and Leon F. DeJulius, Jr. (Jones Day, Pittsburgh, P.A.) for American Cyanamid Co. and Armstrong Containers, Inc.

Companies: American Cyanamid Co.; Armstrong Containers, Inc.

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