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7th Circuit revives lead paint lawsuit (UPDATE)

By: Eric Heisig//July 25, 2014//

7th Circuit revives lead paint lawsuit (UPDATE)

By: Eric Heisig//July 25, 2014//

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By overturning a lead paint lawsuit decision, the 7th U.S. Circuit Court of Appeals has revived eight lead poisoning lawsuits that were on hold pending the ruling.

The decision in Gibson v. American Cyanamid et. al, released Thursday and authored by sitting Northern District of Illinois Judge Edmond Chang, overturns a 2010 ruling by Eastern District of Wisconsin Judge Rudolph Randa. The court said Randa’s decision to strike down the “risk-contribution theory” – which was at the heart of the lead paint lawsuits – was wrong.

The 7th Circuit sent the case back to the district court for further proceedings. It also ruled that the Wisconsin Legislature cannot make a law retroactive to dissuade lawsuits that were previously valid under the theory.

Milwaukee attorney Peter Earle, who represented plaintiff Ernest Gibson, said Thursday’s decision also lifted the stay on seven other cases. With Gibson, the total plaintiffs affected is 173.

Earle said the 7th Circuit’s ruling took things farther by not taking away the right for someone to sue if they were harmed prior to a law’s passage.

“The idea is that the common law has to be amenable to the future in a society where products are mass produced,” Earle said.

Ralph Weber, an attorney with Gass Weber Mullins LLC, Milwaukee, involved in the defense, had no comment when reached Friday.

The risk-contribution theory uses state law to apportion liability based on the proportion of the market a manufacturer held when the plaintiff was injured. That theory was set forth by the Wisconsin Supreme Court in 2005 in Thomas v. Mallett, another lead paint case that Earle litigated.

Randa had ruled that the theory violated the due process rights of the paint companies that the plaintiffs in Gibson were suing. But the 7th Circuit thought otherwise, ruling that allowing those affected by lead paint to sue doesn’t automatically mean their claims will hold water in front of a jury.

“… In individual cases,” according to the 7th Circuit’s decision, “there is no reason to believe that the manufacturers will not have notice and a meaningful opportunity to be heard in litigating whether the plaintiff has proved his or her prima facie case or in litigating their defenses …”

The case at the center of Thursday’s decision concerns Gibson, who was a child when he and his family moved to a house in Milwaukee in 1997, and the neurological defects he said he suffered as a result to exposure to lead paint. The house was built in 1919 and was painted before lead paint was banned in 1978.

Gibson contended that the paint used when the house was built caused him neurological defects and sued multiple paint companies, six of whom remain involved in the case.

But Gov. Scott Walker and the GOP-run Legislature approved a law in 2011 that undid Thomas for future cases. The state budget last year included a provision aimed at blocking the lead paint lawsuits that had already been filed.

Earle said those who filed the suits lived in low-income areas.

“There’s a lesson to be learned here,” he said. “Sometimes the wheel of justices turn slowly, but they turn. That’s good.”

The Associated Press also contributed to this report.

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