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Constitutional Law — substantive due process — Takings Clause

U.S. Court of Appeals for the 7th Circuit


Constitutional Law — substantive due process — Takings Clause

The Wisconsin Supreme Court’s decision in Thomas, establishing the risk-contribution theory of liability for lead pigment claims, does not violate the Due Process, Takings, or interstate-commerce Clauses of the Constitution.

“[W]e conclude that risk-contribution theory is not arbitrary and irrational, nor is it unexpected and indefensible. In developing the common-law torts of negligence and strict liability by adopting risk-contribution theory, the Wisconsin Supreme Court balanced the tortious conduct of pigment manufacturers in distributing an unreasonably dangerous product with the possibility of leaving the non-culpable plaintiff without a sufficient remedy, while recognizing that the state high court was relaxing the traditional standard of causation. Thomas, 701 N.W.2d at 558. Thomas rationally relied on the wide scope of the health dangers posed by white carbonate lead pigment. The lead poisoning caused by the pigment is not only widespread in terms of the number of individuals affected, but just as problematic, in the Wisconsin Supreme Court’s view, is the ongoing exposure to lead pigment that would continue to cause injuries in the foreseeable future. Id. (describing the hazard as ‘a public health catastrophe that is poised to linger for quite some time’). At the same time, victims of pigment poisoning face difficult problems of proof, in part because the pigment was so unreasonably dangerous that it remains a health danger even decades later.”

Reversed and Remanded.

10-3814 Gibson v. American Cyanamid Co.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Chang, J.

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