Yesterday the 7th Circuit reversed a 2010 district court decision which ruled that the “risk-contribution theory” violated substantive due process, breathing new life into plaintiff’s case and likely other previously-pending lead paint cases.
In Gibson v. American Cyanide, et al., plaintiff sued former manufacturers of paint containing white lead carbonate pigments, an ingredient that was ultimately banned in the 1970s. Plaintiff alleges he was poisoned by the white lead carbonate pigment in the paint in his home. However, he could not identify what specific manufacturer produced the paint he was exposed to. Thus, his case relied on the risk-contribution theory established by the Wisconsin Supreme Court in Thomas v. Mallet, 2005 WI 129, 701 N.W.2d 523. The risk-contribution theory allowed Plaintiff to proceed with his claim without having to identify the specific entity or entities that produced or sold the product producing the harm.
In 2010, the district court in Gibson granted the defendants’ motion for summary judgment, holding that the risk-contribution theory of Thomas v. Mallet violated substantive due process. This ruling, just as the Thomas v. Mallet ruling, had wide-ranging effects. As noted in my previous article, defendants in pending lead paint cases sought and received stays pending a resolution of the Gibson appeal.
Now those cases may be able to move forward once again. The 7th Circuit ruling concluded that the Constitution grants broad deference to states to develop their common law, and therefore dismissed the defendants’ primary argument (and the one on which the district court relied) that the risk-contribution theory violates the substantive component of the Due Process Clause. The court held that the risk-contribution theory is not arbitrary or irrational, and therefore comports with due process.
Further, the 7th Circuit agreed with a Milwaukee County Circuit Court ruling in Clark that stated that the retroactive application of Wis. Stat. § 895.046 (abolishing the risk-contribution theory) violated due process. Wis. Stat. § 895.046 was passed by the Wisconsin Legislature in 2011 in response to Thomas v. Mallet, and was amended shortly thereafter to have a retroactive effect.
The effect of Gibson and § 895.046 is that any cases which were filed between the Thomas decision and the effective date of § 895.046 are likely to resume moving forward. The defendants in Clark have moved for leave to appeal the Milwaukee Circuit Court’s rejection of the retroactivity of § 895.046 (Appeal No. 2014AP775–LV), however it seems unlikely that appeal would be granted or successful now that the 7th Circuit has chimed in and agreed with the circuit court’s ruling. Yet despite all of this, one thing remains clear: § 895.046 still applies to cases filed after its effective date, so no new lead paint cases relying on the risk-contribution theory are expected to be filed under the current status of the law.