Please ensure Javascript is enabled for purposes of website accessibility

Lead-paint case bounces through legal system for a decade

By: Erika Strebel, [email protected]//May 25, 2016//

Lead-paint case bounces through legal system for a decade

By: Erika Strebel, [email protected]//May 25, 2016//

Listen to this article
STAFF PHOTO BY KEVIN HARNACKPeter Earle, the attorney for a woman who sued several paint manufacturers over her exposure to lead paint when she was a child, has been fighting to bring his client’s case before a jury. Earle is challenging a 2013 provision in a Wisconsin statute that retroactively prevents plaintiffs from bringing lead-paint lawsuits under the risk-contribution theory of liability, which allows plaintiffs to sue paint companies based on their share of the market. (Staff Photo by Kevin Harnack)
Peter Earle, the attorney for a woman who sued several paint manufacturers over her exposure to lead paint when she was a child, has been fighting to bring his client’s case before a jury. Earle is challenging a 2013 provision in a Wisconsin statute that retroactively prevents plaintiffs from bringing lead-paint lawsuits under the risk-contribution theory of liability, which allows plaintiffs to sue paint companies based on their share of the market. (Staff photo by Kevin Harnack)

Milwaukee attorney Peter Earle has been trying for years to get his client’s lead-paint case in front of a jury. Yet, even though his fight started nearly a decade ago, his goal remains as elusive as ever.

Earle’s client, Milwaukee resident Yasmine Clark, sued several paint manufacturers in 2006, alleging she was seriously harmed by lead paint she was exposed to in homes she had lived in before turning 10. Clark’s case so far has largely centered on whether a budget provision state legislators adopted in 2013 lets her press her claims in the first place.

Clark’s suit was one of many filed in the wake of the Wisconsin Supreme Court’s landmark decision in the case of Thomas v. Mallet. That ruling, handed down in 2005, meant that plaintiffs no longer had to prove a particular manufacturer made the paint suspected of causing harm.

Suddenly, it was enough to show that a given manufacturer had a share of the lead-paint market at the time harmful exposure occurred. Undergirding the Thomas decision was a legal theory known as risk-contribution liability.

The decision almost immediately gave rise to fears that the Supreme Court had opened the door to unfettered lawsuits. Lawmakers responded in 2011 by passing legislation that essentially reset liability law to what it had been before the Thomas decision. In other words, plaintiffs had to once again prove that the manufacturers they were suing were in fact the ones who made the paint that caused the harm.

Trouble arose, though, when the courts struggled to decide what should happen to cases that were filed after Thomas was handed down but before the new law undoing Thomas was in effect.

Court decisions dealing with the common law are generally considered to be retroactive, the assumption being that courts are merely interpreting what the law has been all along.

Legislation, in contrast, is often presumed to be prospective. Seeking to have the 2011 law overturning Thomas apply to all cases, both new and old, state lawmakers later approved a budget provision intended to retroactively ban risk-contribution liability from playing a role in lead-paint suits.

As evidenced by Clark’s case, the attempt was not entirely successful. In 2014, Milwaukee Judge David Hansher allowed Clark to proceed with her lawsuit.

The paint manufacturers quickly turned to the state Court of Appeals, which asked the state Supreme Court to weigh in and settle the matter once and for all. Yet, rather than shut the book on the case, the state’s high court decided in April to send it back to the Court of Appeals. The defendants have now filed motions calling for additional briefing and oral arguments.

There’s no way to predict how the District 1 Court of Appeals will decide the case because the three-judge panel that will oversee the proceedings has yet to be chosen, said Peter Carstensen, law professor at the University of Wisconsin.

Carstensen added, though, that he thinks a template for how state courts should handle lead-paint suits can be found in a separate case handled by the 7th Circuit Court of Appeals. In Gibson v. American Cyanamid Co., a lead-paint case also litigated by Earle, the 7th Circuit cited the Wisconsin Constitution to rule that the Wisconsin Legislature could not make a law retroactive in a way that invalidated lawsuits that had once been able to proceed under the Thomas decision.

Now the biggest questions in the Clark case are likely to center on whether the public interest that lawmakers were seeking to protect when trying to undo Thomas retroactively outweighs Clark’s right to recover damages.

Also up for consideration is whether the retroactive law deprived Clark of a vested property right. Earle has been arguing that Clark had a vested right to bring a claim for damages against the paint manufacturers because the Thomas decision was still in effect when he filed the suit on behalf of his client.

In general, retroactive laws involving property rights are considered constitutional as long as they advance a public interest. When Clark or other plaintiffs in Wisconsin challenge such a law, they must show that it deprives them of a vested right. A court will then weigh the harm of the possible deprivation against the public interest the Legislature is purporting to protect by enacting the law.

“You balance the importance of the public interest served by that — justice bought by greedy corporations to get themselves out of lawsuits brought by victims of their wrongdoing — against the property rights of Yasmine Clark to have her day in court, to have the court decide whether or not she should be able to hold these people accountable under risk-contribution for the life-altering injuries they caused her,” Earle said.

The defendants in the Clark case, in contrast, have noted that Clark’s first exposure to lead paint came in 2003, two years before the Thomas decision was handed down. They also argue that the public has an interest in ensuring that lawsuits cannot proceed uninhibited against manufacturers of certain products.

Tony Dias, a lawyer representing the paint manufacturer Sherwin-Williams, warned that risk-contribution liability could be applied to all kinds of products, including building materials. He and others said that, should their clients lose, the state’s court system could be submerged in a torrent of product-liability lawsuits.

Attorney General Brad Schimel has also weighed in on the case, defending the constitutionality of lawmakers’ attempt to undo the Thomas decision retroactively.

Although Carstensen often finds himself siding with plaintiffs, he says he’s not enthusiastic about holding paint manufacturers who are in business today liable for products sold decades ago. The cost of righting the wrong is far more likely to fall on anyone shopping for paint, rather than those who are actually culpable.

“To me it’s not a very sensible solution and it’s economically and incredibly inefficient,” Carstensen said. “All those lawyer fees have got nothing to do with solving the lead paint problem.”

Polls

Should Wisconsin Supreme Court rules be amended so attorneys can't appeal license revocation after 5 years?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests