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Burton v. American Cyanamid Co.

United States District Court, E.D. Wisconsin

September 19, 2019

GLENN BURTON, JR, Plaintiff,
AMERICAN CYANAMID CO, et al., Defendants; RAVON OWENS, Plaintiff,
AMERICAN CYANAMID CO, et al., Defendants; CESAR SIFUENTES, Plaintiff,
AMERICAN CYANAMID CO, et al., Defendants.



         The plaintiffs in these cases experienced elevated blood lead levels as young children and brought these negligence and strict product liability lawsuits against former manufacturers or successors-in-interest to manufacturers of White Lead Carbonate paint pigment (WLC). Because plaintiffs did not know the identities of the manufacturers of the specific WLC that caused their harm, they relied on Wisconsin’s risk contribution theory, which allows a plaintiff to make a prima facie products liability case on the basis that the manufacturer made the type of product that caused the plaintiff’s harm, and shifts to the defendant manufacturer the burden to exculpate itself by showing that its product did not in fact cause the harm. See Thomas ex rel. Gramling v. Mallett, 285 Wis.2d 236 (2005). The three cases were consolidated and tried earlier this year, and in each case the jury found against three of the defendants: Sherwin Williams, Armstrong Containers, and DuPont. These three defendants now move for judgment notwithstanding the verdict (“JNOV”) on grounds that liability is precluded by the various public policy factors that comprise Wisconsin courts’ test for legal causation. Sherwin Williams also moves for judgment as a matter of law on grounds that plaintiffs have not proven that risk contribution theory properly applies; Armstrong joins this motion.

         I. BACKGROUND

         The risk contribution model of recovery requires that the jury first identify a pool of liable defendants (i.e., defendants against which the elements of negligence or strict liability have been established and which have not exculpated themselves) and then allocate responsibility among those defendants on the basis of various equitable factors including market share. Well before the trial, plaintiffs had reached a Pierringer settlement with Millenium Holdings, successor-in-interest to National Lead (NL), a company understood to have controlled a large share of the market for WLC and WLC-based paints in Milwaukee. Because I was concerned that evidence and argument relevant only to the allocation question might infect the jury’s treatment of exculpation, I bifurcated the trial, reserving the allocation question for a second phase after the jury had identified the pool of liable defendants. I excluded evidence of market share and of National Lead’s role in the Milwaukee market from phase one of the trial, because such evidence was relevant only to allocation and not to the liability of any of the non-settled defendants.

         Phase one of the trial lasted four weeks. Both sides relied heavily on expert witnesses. Plaintiffs presented evidence that testing of paint chips from the home(s) where each plaintiff lived when he was exposed revealed the presence of WLC. Plaintiffs’ expert Jenifer Heath testified that the paint in the plaintiffs’ homes was the primary source of each plaintiff’s lead exposure, and that the likely pathway of exposure was that the paint had deteriorated into dust which the plaintiffs likely ingested when it stuck to their fingers. E.g., ECF # 1683 at 31. Plaintiffs presented epidemiological evidence suggesting a causal relationship between lead exposure and diminished IQ, and their neuropsychiatric expert testified that each plaintiff’s pattern of neuropsychiatric test scores was consistent with brain injury caused by lead poisoning. Ravon Owens’ elevated blood lead levels were reported and treated in 1993, Cesar Sifuentes’ in 2001, and Glenn Burton’s in 2002.

         Plaintiffs’ expert historians presented medical journal articles from the early 20th century describing cases of childhood lead poisoning linked to paint. Trial testimony indicated Sherwin Williams manufactured WLC between 1910 and 1947, MacGregor Lead Company manufactured WLC for use in paint between 1937 and 1971, and DuPont manufactured WLC between 1917 and 1924. DuPont continued to manufacture paint containing WLC until 1966 (though trial evidence suggests it stopped marketing such products in Milwaukee in the mid-1940s).

         At the end of phase one, in each of the three cases, the jury found that the plaintiff had ingested WLC, that the ingestion of WLC had caused him injury, that each of Sherwin Williams, Armstrong Containers (as successor to the MacGregor Lead Company), and DuPont had both negligently produced or marketed WLC and failed to adequately warn about WLC, and that those defendants’ negligence and inadequate warnings had been a substantial factor in causing the plaintiff’s injury. The jury awarded $2 million in damages to each of the three plaintiffs-$6 million total. Rather than proceed with the second, allocation phase of the trial, the plaintiffs and the three liable defendants elected to settle the second phase, allocating 12.5% of the responsibility to National Lead and allocating the remainder to the three remaining defendants on a joint-and-several basis. ECF No. 1612 at 16.


         As a preliminary matter, plaintiffs argue that defendants lack a procedural basis for their post-verdict public policy motions. Plaintiffs argue that Rule 50(b) of the Federal Rules of Civil Procedure allows a party to move for judgment as a matter of law after entry of a verdict only if the party preserved the issue by filing a Rule 50(a) motion before the verdict was entered-which defendants did not do. Defendants counter that such a motion under Rule 50(a) would have been improper for various reasons including that Rule 50(a) is addressed to sufficiency-of-the-evidence arguments whereas the application of the Wisconsin public policy factors is a pure question of law. Because I conclude that defendants’ public policy arguments fail on their merits, I need not resolve the difficult procedural questions the parties raise; I assume without deciding that defendants’ motions are not procedurally barred.

         In Wisconsin, a court may determine that judicial public policy precludes liability even where the plaintiff has proved the elements of negligence, Casper v. American Intern. South Ins. Co., 336 Wis.2d 267, 305 (2011), or strict liability, Ransome v. Wis. Elec. Power Co., 87 Wis.2d 605, 625 (1979). To make such decisions, Wisconsin courts rely on the following six “public policy factors”: (1) whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether, in retrospect, it appears too extraordinary that the negligence should have brought about the harm; (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor; (5) whether allowance of recovery would be too likely to open the door to fraudulent claims; or (6) whether allowance of recovery would enter a field that has no sensible or just stopping point. Fandrey ex rel. Connell v. American Family Mut. Ins. Co., 272 Wis.2d 46, 52 n. 1 (2004). “When a court precludes liability based on public policy factors, it is essentially concluding that despite the existence of cause in fact, the cause of the plaintiff’s injuries is not legally sufficient to allow recovery.” Id. at 62. The “capsule form” of this public policy analysis is as follows: “When it would shock the conscience of society to impose liability, the courts may hold as a matter of law that there is no liability.” Bowens v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 656 (1994) (citing Pfeifer v. Standard Gateway Theater, 262 Wis. 229, 238 (1952)). “Cases in which a causally negligent tortfeaser is relieved of liability on judicial public policy grounds are infrequent and present unusual and extreme considerations.” Roehl Transp., Inc. v. Liberty Mut. Ins. Co., 325 Wis.2d 56, 110 (2010).

         Sherwin Williams, DuPont and Armstrong now assert that each of the six factors is applicable to these cases and precludes liability despite the jury’s verdict. The application of the public policy factors to the facts of a particular case is a legal question and solely the function of the court. Coffey v. City of Milwaukee, 74 Wis.2d 526, 541 (1976). The Wisconsin Supreme Court has counseled that it is generally the best practice for the court to wait until the facts of a case have been developed at trial before considering whether the public policy factors preclude liability. Alvarado v. Sersch, 262 Wis.2d 74, 84 (2003). Indeed, before trial I denied plaintiffs’ motion for summary judgment on the defense of intervening, superseding cause-which Wisconsin courts treat as subsumed within the first, “remoteness” public policy factor, see Cefalu v. Continental Western Ins. Co., 285 Wis.2d 766, 780 (Wis.App. 2005)-and indicated that I would address the question after the facts had been fully developed before the jury. Burton v. American Cyanamid, 341 F.Supp.3d 941, 948 (2018). For purposes of this motion for JNOV, defendants admit and I assume that the findings of the jury’s verdicts are true; the motion asserts that judgment should be granted to defendants on grounds other than those decided by the jury. Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1195-96 (7th Cir. 1992).


         Wisconsin’s first public policy factor precludes liability when “the injury is too remote from” a defendant’s conduct. Hass v. Chicago & N.W.R. Co., 48 Wis.2d 321, 326 (1970). The word “remote” as it is used here means “removed or separated from the negligence by time, space, or sequence of events.” Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 176 Wis.2d 740, 762 (1993).

         The defendants argue that their negligence is too remote in time from plaintiffs’ injuries to permit liability. It is true that decades passed between the defendants’ manufacture or marketing of WLC and the plaintiffs’ exposures. Sherwin Williams cites to Cefalu, a Wisconsin Court of Appeals case in which the court held that a car accident was too remote from a second accident involving emergency responders 30 minutes later at a different intersection to sustain liability. 285 Wis.2d at 780. Sherwin Williams also cites Casper, a Wisconsin Supreme Court case which held that a trucking company officer’s negligent approval of a route was too remote in time from an accident involving one of that company’s truck’s 18 months later to sustain liability. 336 Wis.2d at 900. Sherwin Williams argues that because gaps of 30 minutes and 18 months have been held too long to support liability under Wisconsin law, the decades-long gap between negligence and injury in this case must also be too long. That reasoning fails; the remoteness analysis is fact-driven and holdings from car-accident cases cannot be uncritically superimposed on a products liability case. See, e.g., Zielinski v. A.P. Green Indus., Inc., 263 Wis.2d 294 (Wis.App. 2003)(plaintiff allowed to maintain a lawsuit alleging that exposure to asbestos in 1957-1963 resulted in a 1999 diagnosis of mesothelioma).

         Defendants also argue that changes in the fields of public health and medicine between the time they made or marketed WLC and the time of plaintiffs’ exposures render the span of years too remote. That argument is misplaced; it is essentially an attempt to relitigate negligence and duty to warn, both of which the jury already found after having heard the same evidence defendants now cite. For purposes of this motion, I must treat that finding of negligence as true. Similarly, defendants argue that their negligence was too remote in space from plaintiffs’ injuries, because the exposure to lead happened inside plaintiffs’ homes where defendants had no control. Again, this argument makes little sense in a products liability case. In particular, the jury instructions for the product liability claim required the jury to find that “the defective condition of the product existed while the product was under the control of the manufacturer” and that “the product was expected to and did reach the consumer without substantial change in the condition in which it was sold.” In other words, the jury has already factored the question of manufacturer control into its finding of liability, and I can’t disrupt that finding on the present motion.

         Causation, or “sequence of events,” is the heart of defendants “remoteness” argument. The “sequence of events” analysis encompasses the traditional tort defense of superseding, intervening cause. Cefalu, 285 Wis.2d at 780. A determination that the injury is too removed or separated from the negligence is “essentially just a determination that a superseding cause should relieve the defendant of liability.” Id. But “[a]n intervening act is not superseding if it is a normal consequence of the situation and is not done in a manner that is extraordinarily negligent.” Id. (citing Voigt v. Riesterer, 187 Wis.2d 459, 470 (Wis.App. 1994)).

         Defendants assert that intact lead paint is not a hazard and only becomes hazardous when allowed to deteriorate. They argue that the properties where plaintiffs ingested WLC passed through the hands of many landlords and owners in the years between the defendants’ culpable conduct and plaintiffs’ exposure. Defendants argue that these landlords and owners failed to properly maintain the properties or otherwise act to minimize the risk of lead exposure, despite mounting public awareness of the issue and despite state and federal regulations requiring landlords to address deteriorated lead paint and to notify tenants of lead paint’s presence in a home. They argue that this intervening conduct by the landlords and owners of the property is an intervening, superseding cause and disrupts the chain of causation such that defendants cannot be liable.

         I disagree. A landlord or property owner allowing paint to deteriorate enough to make chips or dust containing WLC available to children is an eminently “normal consequence” of a company’s negligently manufacturing or marketing WLC for use in residential paint. It is hard to imagine a more predictable sort of intervening negligence. And such intervening negligence does not sever the causal connection between plaintiffs’ injuries and defendants’ negligence. If WLC had not been present in the paint on the walls, the children would not have suffered lead exposure from ingesting the paint, no matter how badly the paint had been allowed to deteriorate in the years between the WLC’s manufacture and the childrens’ exposure.


         The second public policy factor allows me to bar liability if the plaintiffs’ injury is wholly out of proportion to the culpability of the negligent tortfeasor. The defendants present three sorts of argument addressed to this factor. First, each of the three defendants argues that its share of the Milwaukee market for WLC paint products was very small and thus its culpability is minimal and out of proportion to plaintiffs’ injuries. Second, each defendant argues that WLC was a legal product and much in demand at the time they manufactured it-governments specified it for use in public buildings and consumers and master painters considered it a high quality form of paint. Presumably, the implication is that this acceptance of and demand for WLC makes the defendants’ conduct in manufacturing and marketing WLC less unreasonable and therefore less culpable. Third, Sherwin Williams and DuPont both argue that their culpability is reduced because they played an active role in developing new paint formulas that did not use WLC.

         There are several problems with the market share argument. The defendants would have had the opportunity to present this evidence to the jury at the allocation phase of the trial, and to argue that the lion’s share of responsibility ought to be allocated to National Lead. Instead, defendants elected to settle phase two. This was not technically a waiver of their market share argument: at phase two the defendants would have used market share to argue for a reduced share of proportional responsibility, whereas here they are arguing for an absolute bar to liability. ...

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