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Justices to hear arguments in woman’s lawsuit against lead paint manufacturers

By: Erika Strebel, [email protected]//April 1, 2016//

Justices to hear arguments in woman’s lawsuit against lead paint manufacturers

By: Erika Strebel, [email protected]//April 1, 2016//

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Despite lawmakers’ attempts in recent years to rein in lead-paint lawsuits, a Milwaukee woman’s claims that she was poisoned by paint as a child will get a hearing before the Wisconsin Supreme Court  on Tuesday.

Yasmine Clark, a Milwaukee resident, filed a suit in 2006 alleging she had been seriously harmed by lead paint she was exposed to in the homes she had lived in when she was 2 years old and 5 years old. Among the defendants named in her legal action were several paint manufacturers.

The lawyers representing both Clark and the defendants are now scheduled to make oral arguments before the state Supreme Court justices starting at 1:30 p.m. Tueday. The case’s outcome has the potential to affect more than 170 pending lead-paint lawsuits throughout the state.

Clark has already enjoyed one courtroom victory. Milwaukee Judge David Hansher sided with her in 2014, deeming unconstitutional a so-called tort reform law that, passed the year before, was meant to invalidate lawsuits like Clark’s.

The paint manufacturers quickly appealed Hansher’s decision to the state Court of Appeals, which asked the state Supreme Court in 2015 to weigh in and settle the matter once and for all.

In the main, the defendants are contending that Clark cannot sue because her claims originate in exposure that occurred in 2003. That was roughly two years before the Wisconsin Supreme Court had handed down its decision in Thomas v. Malllet, a pivotal lead-paint case that assigned liability for harmful exposure according to a paint manufacturer’s share of the market at the time a plaintiff was injured.

At first, it was uncertain whether Clark’s case would be able to move forward. A federal court had struck down the Mallet ruling, but that decision was later overturned, in 2014, by the 7th U.S. Circuit Court of Appeals.

Supporters of the Thomas ruling say its basic framework, often referred to as risk-contribution theory, gives victims at least some means of holding someone responsible for the injuries they suffered from lead paint, something that is notoriously difficult to do. Plaintiffs in such cases often find it is next to impossible to identify the exact manufacturer of the lead paint that caused harm.

Opponents, in contrast, argue that the Thomas decision gave people license to sue practically any paint manufacturer, even those who have no provable connection to an injury.

Attorney General Brad Schimel has weighed in, filing a brief on March 8 encouraging the Supreme Court to support the defendant paint manufacturers. He argued that the Legislature was right to pass legislation overturning Thomas, which, he contended, had transformed a century of established law and “spawned an outburst of litigation.”

For those reasons as well as others, Thomas caused an uproar at the time, and the decision became a major topic of debate in the Supreme Court race following it. That contest saw then-Supreme Court Justice Louis Butler, who wrote the opinion in the Thomas case, lose his bench seat to Justice Michael Gableman.


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