Proposed liability bill puts lead paint cases at risk

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For the past six years, Milwaukee solo attorney Peter Earle has dedicated half of his practice to researching and litigating civil claims against lead paint manufacturers on behalf of children allegedly poisoned by the product.

But his legal investment in 173 pending claims filed in state and federal court since 2006 now faces a significant legislative roadblock.

Senate Bill 373, introduced Jan. 10, would retroactively require litigants to prove liability against specific manufacturers, essentially nullifying Earle’s current claims. A public hearing on the bill was held Jan. 19.

“This bill is private legislation,” Earle said, “for the benefit of specific parties intending litigation and it’s targeted especially at 173 children.”

The legislation is an enhancement of tort reforms Gov. Scott Walker adopted a year ago under Wisconsin Act 2 to curb lawsuits being filed against companies, especially producers of lead paint, that did not have direct liability for alleged injuries.

Act 2 had a loophole, however, because the 2005 Wisconsin Supreme Court ruling in Thomas v. Mallet, 2005 WI 129, allowed litigation against lead paint companies to proceed under the assumption that if found liable, each would share a part of the blame.

The risk contribution theory established by that ruling gave Earle the ability to file suit without having to tie to a specific manufacturer injuries, such as brain damage, alleged as a result of lead paint ingestion.

Earle said he filed a majority of his lead paint claims three weeks prior to Walker’s Act 2, which took effect Feb. 1, 2011, to protect his client’s right of recovery established by the Wisconsin Supreme Court in Thomas.

“There is not a linear relationship between the manufacturer of a specific paint and the individual children,” he said. “They all pissed into the same pot and that is what caused injury to these children.”

But Milwaukee defense attorney James Murray Jr., of Peterson, Johnson & Murray SC, said the new proposal, which would eliminate the chance for retroactive litigation under Thomas, doesn’t eliminate the chance for recovery or the ability to bring claims.

All it does, he said, is largely return the law to what it was prior to the 2005 Supreme Court decision and reinforce Act 2, which revised the risk contribution theory so, absent direct liability, companies could not be held liable for decades-old incidents.

Murray is representing Texas-based NL Industries Inc., one of the defendants in the lead paint cases filed by Earle.

“Alleged victims cans still sue the landlord or the color pigment companies under the common law method of recovery,” he said, “or through the amended risk contribution process in Act 2.”

The revised risk contribution standard laid forth in Act 2 requires plaintiffs to prove a manufacturer produced at least 80 percent of all products sold in Wisconsin that are chemically identical to the specific product that allegedly caused the injury.

But Earle said there is no way to assign a precise percentage of liability to lead paint manufacturers, making it virtually impossible to meet the risk contribution criteria outlined in Act 2.

The houses in question were built from 1910 to 1940 and injuries alleged span decades.

“There are as many as 70 or 80 layers of paint in some locations,” Earle said. “So what we have here is a collective cesspool of toxic products of all the companies combined into an indivisible toxic threat to these children.”

Should the proposed legislation pass, Earle said, he would challenge the constitutionality of the law.

But he acknowledged that such an effort, even if successful, would further delay any chance of recovery for his clients, some of which have been waiting six years.

“Now we would face another delay in order to litigate this up to the Wisconsin Supreme Court,” Earle said, “which would push cases back frivolously for many more years. That’s why this law is wrong.”