A split Wisconsin Supreme Court ruled Friday that a Milwaukee boy can sue manufacturers of a lead paint pigment he claims left him mentally retarded -- even though he cannot prove which ones made the pigment that may have sickened him.
MADISON, Wis. A split Wisconsin Supreme Court ruled Friday that a Milwaukee boy can sue manufacturers of a lead paint pigment he claims left him mentally retarded -- even though he cannot prove which ones made the pigment that may have sickened him.
It was the first time a state has allowed such a suit against the industry, and a dissenting justice said the ruling and another lead paint case pending before the court could make Wisconsin "the mecca for lead paint lawsuits."
But the 4-2 majority found manufacturers continued to produce and market the lead paint pigment despite knowledge of its hazards that dated back to at least 1904.
The manufacturers "are essentially arguing that their negligent conduct should be excused because they got away with it for too long," Justice Louis Butler wrote for the majority.
The court extended the "risk contribution theory" to the manufacturers of white lead carbonate, a pigment once commonly used in lead paint. According to that principle, 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.
Until now, Wisconsin courts had applied the principle only to lawsuits involving diethylstilbestrol, a drug once prescribed to pregnant women to prevent miscarriages. It was later found to cause a rare cancer of the vagina in children born to women who took the drug.
Defendants in the paint case include the Sherwin-Williams Co., ConAgra Grocery Products Co., American Cyanamid Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries Inc. and SCM Chemicals Inc.
Bonnie Campbell, spokeswoman for Atlantic Richfield, Sherwin-Williams, NL Industries and SCM Chemicals' successor Millennium, said other courts and the Wisconsin Legislature have determined it is the responsibility of landlords, not manufacturers, to prevent hazards from lead paint applied decades ago.
She said the companies made a product that was legal and considered superior to other paints at the time. But once they learned it posed a danger to the public, they ceased production long before it was banned. Wisconsin outlawed the use of lead paint in 1980.
"Against that backdrop, it's simply unfair to punish these defendants who really did do the right thing and made the right choices along the way," said Campbell.
Still, the court's 4-2 ruling allows 15-year-old Steven Thomas to continue with his lawsuit against companies that made the pigment. Thomas claims as a toddler he ingested lead paint at two homes built in 1900 and 1905, leading to permanent, mild retardation.
The court also ruled Thomas could sue the manufacturers even though he already received more than $324,000 from the landlords of the two homes where he believed he was sickened. But it rejected his claims the companies conspired to market the product to the public despite the dangers.
Thomas's attorney, Peter Earle, said although his client cannot prove which of the manufacturers created the pigment in the paint he ingested, they all have a shared culpability for knowingly producing a hazardous product.
John Metcalf of Wisconsin Manufacturers & Commerce, the state's largest business group, said plaintiffs previously had to prove a cause-and-effect relationship between a product and their injuries.
"(Now) I just have to prove that a product like yours caused my injury. If that was applied to other products, it would have a devastating impact on manufacturing," Metcalf said.
Source: Associated Press