What’s that? Chief justice sides with liberal justices in lead paint case

Listen to this article

The state’s conservative chief justice formed an unusual alliance Friday with two liberal-leaning justices in a deadlocked decision that will send a lead paint case back to the court of appeals.

The Wisconsin Supreme Court on Friday was split on whether a law from 2013 unconstitutionally prevents Yasmine Clark, a Milwaukee woman, from suing paint manufacturers over her exposure to lead paint in homes she lived in as child.

The law at issue was intended to prevent plaintiffs from being able to successfully sue paint manufacturers indiscriminately for harm suffered from lead paint. State lawmakers passed legislation in 2011 requiring plaintiffs to prove that the manufacturers they were suing had actually made the paint that caused the harm. But it wasn’t clear if the law would apply only to new lawsuits, or also to ones that had been filed before the new standards took effect.

State lawmakers strove for greater clarity two years later by passing separate legislation making the law from 2011 apply retroactively to all lead-paint cases.

The Supreme Court justices were asked last week to decide whether a case filed before the retroactive law took effect could proceed under the old standards, meaning that the plaintiff would not have to prove that the manufacturers she was suing had made the products that had directly caused her harm. Clark filed a suit in 2006 alleging she had suffered greatly from lead paint she was exposed to in homes she had lived in when she was 2 years old and 5 years old.

The legal action came a year after the state Supreme Court had handed down a landmark decision in the case of Thomas v. Mallet. That pivotal ruling gave plaintiffs the ability to sue paint manufacturers according to their share of a given market at the time harmful exposure to lead paint occurred. Business groups decried the ruling, saying it completely eliminated plaintiffs’ former obligation to show that a particular company was responsible for an injury.

In trying to reach a decision Friday, the court ended up splitting 3-3. Chief Justice Pat Roggensack, who is generally believed to be a conservative, joined the left-leaning Justice Shirley Abrahamson and Justice Ann Walsh Bradley in saying she would have affirmed the District 1 Court of Appeals.  Justices David Prosser, Annette Ziegler and Michael Gableman, generally thought to be conservatives, voted to reverse the lower court. Justice Rebecca Bradley, also believed to be a conservative, did not participate.

Roggensack’s siding with Abrahamson and Ann Walsh Bradley, although unusual, was not necessarily a surprise in Friday’s ruling. During oral arguments held in the case earlier in April, both Roggensack and Abrahamson sharply questioned the defendant’s attorney over why paint manufacturers were arguing that the plaintiff in the case could not sue.

Abrahamson argued that Thomas, like all the court’s decisions, was retroactive and should apply in Clark’s case even though her initial exposure had come two years earlier.

Roggensack pressed the defendants for similar reasons, noting that one of the plaintiff’s allegations claimed exposure to lead paint in 2006 — a year after the Thomas decision had been handed down.

The court’s decision Friday remanded the case to the District 1 Court of Appeals for consideration.

Clark, the plaintiff in the case, filed 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.

Clark has already enjoyed one victory in court. Milwaukee Judge David Hansher sided with her in 2014, and the paint manufacturers quickly appealed Hansher’s decision to the state Court of Appeals. That court asked the state Supreme Court, in 2015, to weigh in and settle the matter once and for all.

The case’s outcome is likely to affect only a small number of the lead-paint cases pending in state and federal courts — about six out of a total of 170.

Tony Dias, attorney for Sherwin-Williams, one of the paint manufacturers named in Clark’s lawsuit, said he looks forward to arguing his client’s case before the Court of Appeals.

“Our position remains the same: that the law should be upheld,” he said.

Wisconsin Attorney General Brad Schimel also expressed confidence Friday that the 2013 law will pass constitutional muster.

“We are disappointed that the Wisconsin Supreme Court was unable to reach a consensus in the case, but we remain confident that the law is constitutional and ultimately will be upheld,” he said. Follow @erikastrebel