Lead paint claims denied

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Manufacturers of lead pigment can’t be sued under strict liability or negligent defective design theories, the Wisconsin Court of Appeals held on Oct. 16.

Ruben Baez Godoy, a minor, by his guardian ad litem, Susan M. Gramling, brought suit against manufacturers of white-lead-carbonate pigment: E.I. du Pont de Nemours and Com-pany, The Sherwin-Williams Company, Arm-strong Containers; American Cyanamid Company, BWAY Corporation, and Cytec Industries, Inc.

The complaint alleged that Godoy suffered lead poisoning by ingesting white lead carbonate from paint in an apartment his family rented. The defendants made the lead carbonate that paint manufacturers used to make the paint that allegedly injured him.

Milwaukee County Circuit Court Judge Francis T. Wasielewski dismissed the strict liability and defective-design claims, although the failure to warn claim survives.

The court of appeals granted leave to appeal the non-final order, but affirmed, in a decision by Judge Ralph Adam Fine.

The court agreed with the circuit court that lead is an inherent characteristic of white lead carbonate, and that white-lead carbonate could not be designed as white-lead carbonate without using lead.

Because a product cannot be defectively designed when that design is inherent in the nature of the product, the court affirmed; even if white paint containing lead is defectively designed, because white paint can be made without white-lead carbonate, the supplier of the carbonate cannot be liable for defective design.

The court analogized the case to Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis.2d 772, 629 N.W.2d 727. In Green, the Wisconsin Supreme Court upheld a defective design verdict against the manufacturer of latex gloves, because 5-17 percent of the population is allergic to latex. The court concluded that the jury could find that the gloves were defective and unreasonably dangerous.

However, the defendant in Green was the manufacturer of the gloves, not the supplier of the latex. The court observed, “white-lead carbonate was the raw material for the paint that is alleged to have caused his injuries, just as natural rubber-tree-derived latex was the raw material used to make the surgical gloves in Green.”

The court continued, “the integration of one product, whether ‘manufactured’ or not, into another product that is thereby made dangerously defective, does not, by that fact alone, impose liability on the maker of the integrated product (cite omitted).”

The court also cited the Restatement (Third) of Torts: Products Liability (1998), for support, even though, to date, it has been neither adopted nor rejected by the Wisconsin Supreme Court.

Comment a of Section 5 states:

“One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:

(a) the component is defective in itself, as defined in this Chapter, and the defect causes the harm; or

(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and

(b)(2) the integration of the component causes the product to be defective, as defined in this Chapter; and

(b)(3) the defect in the product causes the harm.”

Comment c to the section provides further: “[R]aw-materials sellers are not subject to liability for harm caused by defective design of the end-product.”

Because the defendants did not participate in the integration of the component into the lead paint design, and white-lead carbonate has uses other than as a paint pigment (in manufacturing plastics), and is thus not defective in itself, the court found that the Restatement (Third) supported dismissal of the complaint.

Accordingly, the court affirmed, concluding, “Just as one cannot make natural latex without using natural latex (and, significantly, the plaintiff in Green did not sue the natural-latex manufacturers), the bottom-line here … is that one cannot make white-lead carbonate without using lead. Thus, Godoy’s complaint does not support either a strict-liability or a negligence defective-design claim.

Case analysis

The case should be carefully followed as it works its way through the system. It could possibly result in not just one, but two Supreme Court decisions.

The first could come if the plaintiffs seek certiorari, and the court grants review of whether the defective-design and strict liability claims were properly dismissed.

Review on that issue would give the court the opportunity to resolve a lingering question: whether Restatement (Third) of Torts: Products Liability (1998), sec. 5, accurately states the law in Wisconsin.

As the court noted, the Supreme Court declined to either adopt or reject it in Haase v. Badger Mining Corp., 2004 WI 97, 274 Wis.2d 143, 682 N.W.2d 389 (Haase II).

The court of appeals in Haase had concluded that sec. 5 does state the law correctly, employing an analysis very similar to the one the court of appeals employed in this case when it discussed sec. 5 in dicta. Haase v. Badger Mining Corp., 2003 WI App 192, 266 Wis.2d 970, 669 N.W.2d 737,746-747 (Haase I).

The Supreme Court affirmed the ultimate holding that the defendant was not strictly liable for the plaintiffs’ damages. However, it did so on other grounds, concluding that sec. 5 was inapplicable to the facts of that case. Badger Mining sold cleaned silica sand in its native state to the plaintiffs’ employer, who then used the sand to manufacture metal casings; however, the sand itself was not integrated into the employer’s finished products. Haase II, 682 N.W.2d at 394.

Because the sand was not integrated into the finished products, the Supreme Court held sec. 5 inapplicable to the case, regardless of whether it correctly states the law.

In the case at bar, in contrast, the white-lead-carbonate pigment indisputably is integrated into the final product — lead paint. The case thus presents an ideal opportunity for the court to decide whether sec. 5 of the Restatement (Third) does correctly state the law, or whether Restatement (Second) of Torts, sec. 402A (1965) remains the proper standard.

This case could also reach the Supreme Court on a second claim that was not dismissed by the circuit court — failure to warn.

To date, the Supreme Court has yet to decide whether or not the sophisticated user defense is available in Wisconsin.

Under the defense, a supplier of a product has “no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product.” Haase I, 669 N.W.2d at 743, quoting Bergfeld v. Unimin Corp., 319 F.2d 350, 353 (8th Cir. 2003).

In Haase I, in addition to affirming the dismissal of the strict liability claim, the court of appeals also held that the sophisticated user defense barred the plaintiffs’ failure to warn claims, because their employer had extensive knowledge of the hazards of inhaling silica dust, the disease of silicosis, and proper dust control methods. Id., at 744-745.

As noted above, when the Haase case went to the Supreme
Court, the Supreme Court affirmed the dismissal of the strict liability claims. However, the sophisticated user defense issue was not considered by the court; the plaintiffs challenged only the dismissal of the strict liability claims. Haase II, 682 N.W.2d at 393, fn. 3. The availability of the defense thus remains unsettled.

In the case at bar, it seems self-evident that a lead paint manufacturer would be a professional who should be aware of the characteristics of lead. So, should the plaintiffs prevail on their failure to warn claims, this case would provide an excellent opportunity for the Supreme Court to hear a second appeal in this case, to decide whether or not the sophisticated user defense is available in Wisconsin (The court of appeals has previously invited the Supreme Court to consider the issue, in Mohr v. St. Paul Fire & Marine Ins. Co., 2004 WI App 5, 269 Wis.2d 302, 674 N.W.2d 576, 589-590, but the Supreme Court denied review).