07-C864 Gibson v. American Cyanamid Co.

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Constitutional Law
Substantive due process; retroactive liability; lead paint

Imposition of liability on lead paint manufacturers through the risk contribution rule violates substantive due process.

“As with ARCO, the foregoing factors are satisfied with respect to the remaining defendants. It is unnecessary for the Court to proceed through the entire analysis once again. All of the defendants (or their predecessors-in-interest) stopped manufacturing white lead carbonate pigment years before the risk contribution rule could have been anticipated, if it was even possible to predict such a development prior to the ruling in Thomas. All of the defendants face substantial liability through the cumulative effect of multiple lawsuits, including those that are currently pending and those that could potentially be re-filed. And by eliminating the traditional causation requirement in tort, the only potential connection between Gibson and the defendants under the risk contribution theory is that the defendants (or their predecessors-in-interest) produced or marketed white lead carbonate for use at some point during the relevant and expansive time period: the duration of the houses’ existence. Gibson at *16 (citing Thomas, 701 N.W.2d at 564). Each defendant participated in the marketplace for varying periods of time, and not all of the market participants are even in existence to be brought into this suit, which means that each defendant would be subject to liability for more harm than they actually could have caused. Accordingly, the imposition of liability for injuries caused by white lead carbonate pursuant to the risk contribution rule is disproportionate to the defendants’ experience in the marketplace, arbitrary and irrational.”

07-C864 Gibson v. American Cyanamid Co.

E.D.Wis., Randa, J.