Toxic Torts

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7^th Circuit Court of Appeals

Case Name: Ernest Gibson v. Armstrong Containers Inc.

Case No.: 22-2630

Officials: Wood, Scudder, and St. Eve, Circuit Judges

Focus: Toxic Torts

This mass tort case involves approximately 170 plaintiffs, spread over several actions, all alleging injuries stemming from their exposure to white lead carbonate (“WLC”), a lead paint pigment. Each plaintiff contends he was exposed to WLC as a child during the 1990s and early 2000s, while growing up in Milwaukee homes that had lead-based paint on the walls. Each seeks to hold several manufacturers of WLC (and their successors) liable under state-law negligence and strict liability theories This is a successive appeal of a series of toxic tort cases brought by individuals allegedly harmed by

lead paint pigment. The cases include the claims of approximately 170 different plaintiffs, most of whom are joined together in a single complaint. All the plaintiffs and all the cases proceeded together in the same court, in front of the same judge, and against the same lead paint manufacturers. The same counsel represented each plaintiff.

To bring order to this sprawling array of litigants, the parties and the district court devised a case management plan under which groups of plaintiffs would try their claims in a series of waves. The plaintiffs in the first two waves, however, met a concatenation of defeats here and in the district court,

resulting in the district court granting summary judgment for the defendants on all claims. The court then extended those rulings to the remaining 150+ plaintiffs on law of the case and issue preclusion grounds.

After careful review, the Seventh Circuit sees no error in much of the court’s reasoning. Most of these plaintiffs opted to proceed under a single complaint, within a single case, which is now sunk after summary judgment. But a small group of plaintiffs filed their own cases, and due process protects their right to try them. For the reasons that follow, the Seventh Circuit affirms the decision of the district court in large part and reverse in small part

Affirmed in part and reversed in part

Decided 02/09/24

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