Two Wisconsin Supreme Court justices on Tuesday grilled paint manufacturers on why a Milwaukee woman should not be allowed to sue them over the lead paint she was exposed to as a child.
Yasmine Clark, a Milwaukee resident, filed the suit in 2006 alleging that she had been seriously harmed by lead paint she was exposed to in the homes she had lived in when she was 2 and 5 years old. Among the defendants named in her legal action were several paint manufacturers.
A Milwaukee trial court sided with Clark, and the paint manufacturers appealed. The Court of Appeals asked the Supreme Court last year to settle the matter once and for all.
The defendants are contending, among other things, that Clark cannot sue because her claims originate in exposure that occurred in 2003, two years before the Wisconsin Supreme Court handed down its landmark decision in Thomas v. Mallet. That pivotal case assigned liability for harmful exposure according to a paint manufacturer’s share of a given market at the time a plaintiff was injured. Critics contended it made plaintiffs no longer responsible for showing that the harm they suffered resulted from paint made by the particular manufacture they are suing.
However, two justices on the state’s high court on Tuesday appeared not to buy the paint companies’ arguments. Justice Shirley Abrahamson said that Thomas, like all the court’s decisions, was retroactive and should apply in Clark’s case even though her initial exposure came two years earlier.
Chief Justice Pat Roggensack noted that Thomas was also alleging that she was harmed by lead paint in 2006 — a year after the Thomas decision was handed down.
Deputy Solicitor General Luke Berg, representing Attorney General Brad Schimel, appeared before the court on Tuesday to defend the constitutionality of a law the state Legislature passed in 2013 to place constraints on lead paint lawsuits. That 2013 legislation was meant to make a separate law passed in 2011 apply retroactively to lead paint cases. That 2011 law in effect nullified the Thomas decision.
Berg argued that the Legislature, in undoing the Thomas decision, was upholding 100 years’ worth of common law concerning liability cases.