United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
bring these negligence and failure to warn claims against
various manufacturers of white lead carbonate pigment (WLC),
alleging that they were harmed by ingesting paint containing
WLC when they were children. Defendants Atlantic Richfield
Company (ARCO) and Sherwin Williams now move for summary
judgment on the failure to warn claims on grounds that, as
suppliers of WLC to paint manufacturers, they owed no legal
duty to warn end users of the hazards of using paint
that plaintiffs contest the characterization of Atlantic
Richfield's predecessors and Sherwin Williams as
component parts suppliers rather than manufacturers of
finished products. I will not address that factual dispute
here. Because issues of material fact exist as to whether
component part suppliers of WLC to the paint industry owed a
duty to warn, the characterization of defendants as component
part suppliers or finished product manufacturers is
immaterial to my denial of their motions for summary
SUMMARY JUDGMENT STANDARD
consider a motion for summary judgment, I am to treat the
evidence of the non-movant as true and draw all reasonable
inferences in the non-movant's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). I am to
grant summary judgment if the movant shows that there are no
genuine issues of material fact such that the movant is
entitled to judgment as a matter of law. Blasius v. Angel
Automotive, Inc., 839 F.3d 639, 644 (7th Cir. 2016).
proceed under the risk-contribution theory of liability,
which the Wisconsin Supreme Court extended to plaintiffs
alleging injury from WLC in Thomas ex rel. Gramling v.
Mallet, 285 Wis.2d 236 (2005). Thomas permits
such risk-contribution claims to sound in negligence or in
strict products liability. Id. at ¶¶
161-62. The instant plaintiffs bring claims of both kinds.
the elements required to prevail on the strict liability
claim, plaintiffs must prove “that the white lead
carbonate was defective when it left the possession or
control of the manufacturers.” Id. at ¶
162. Plaintiffs rely on the failure-to-warn theory of product
defect recognized by Wisconsin law: “a product is
defective based on a failure to adequately warn when an
intended use of the product is dangerous, but the
manufacturer did not provide sufficient warning or
instruction.” Godoy ex. rel. Gramling v. E.I.
DuPont de Nemours and Co., 319 Wis.2d 91, ¶ 29
the negligence claim detailed in Thomas requires
proof “that the Pigment Manufacturers' conduct in
producing the white lead carbonate constituted a breach of a
legally recognized duty to [the plaintiffs].”
Thomas, 285 Wis.2d at ¶ 161. Plaintiffs proffer
the duty to warn as one such legally recognized duty, while
reserving the possibility that parallel negligence claims
might be pursued on the basis of other sorts of duty.
argue that, as component suppliers to the paint industry, WLC
manufacturers had no legally recognized duty to warn
purchasers of paint about the hazards of paint containing
WLC. The Wisconsin Supreme Court has not directly addressed
this legal question. Thomas, 285 Wis.2d at ¶ 3,
n. 2. I must therefore derive my conclusion regarding WLC
manufacturers' duty to warn from Wisconsin tort law.
The Restatement (Third) Framework for Component Seller
defendants argue that, with certain exceptions, Wisconsin law
assigns the duty to warn end users of a finished product of
hazards associated with that product only to the manufacturer
of that finished product and not to suppliers of component
parts. They argue that only paint manufacturers, and not WLC
manufacturers, bore any duty to warn purchasers of paint
containing WLC about the product's hazards.
base this argument on the Wisconsin Court of Appeals'
adoption of the approach to component supplier liability
described in the Restatement (Third) of Torts § 5
(1998). Schreiner v. Wieser Concrete Products, Inc.,
2006 WI.App. 138, ¶ 14, 294 Wis.2d 832, 720 N.W.2d 525;
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