The back-and-forth between Wisconsin’s legislature and its supreme court created a unique six-year window from 2005-2011 when plaintiffs could sue manufacturers of white lead carbonate, a substance formerly used in some paints, under a tort theory called “risk-contribution.” This theory allows a plaintiff who can identify the product he asserts caused his injury—but not its specific manufacturer (due to the passage of time or other factors)—to sue all the defendants that could have manufactured that product during the relevant time period and apportion liability among them.
Around 170 lawsuits were filed on this theory, and three went to trial in 2019 as bellwethers before U.S. District Judge Lynn Adelman in federal court in Milwaukee, resulting in a $6 million judgment against three defendants. Last month, the Seventh Circuit Court of Appeals reversed that judgment, in a decision written by Judge Amy St. Eve and joined by Judges Diane Wood and Michael Scudder, and granted judgment as a matter of law to one of the defendants and a new trial to the other two. See Burton, et al. v. E.I. Du Pont de Nemours and Company, Inc., et al., Nos. 20-1774, 20-1776-77, 20-1780-81, 20-1782-85, 2021 WL 1422814 (7th Cir. April 15, 2021).
The Wisconsin Supreme Court specifically adopted the “risk-contribution” theory for plaintiffs suing manufacturers of white lead carbonate in Thomas ex rel. Gramling v. Mallett, 285 Wis.2d 236, 701 N.W.2d 523 (2005). In 2011, however, the Wisconsin Legislature passed Wis. Stat. § 895.046 and effectively overruled Thomas.1 Id. *1, *5.
Key to the Seventh Circuit’s reversal of the verdict in Burton was Thomas’s holding that the theory applied only to plaintiffs suing manufacturers of white lead carbonate. At various times, the defendants in Burton had manufactured both white lead carbonate (a la Thomas) and paint that contained white lead carbonate manufactured by others. Id. *10. The District Court allowed the plaintiffs to hold the defendants liable on a “risk-contribution” theory either way—which was a big deal, because it significantly expanded the period of time during which the defendants faced liability. Id. *11-12. The Seventh Circuit rejected this expansion of Thomas, finding that “the Wisconsin Supreme Court has expressly limited the risk-contribution theory to manufacturers of white lead carbonate,” not manufacturers of paint containing white lead carbonate. Id. *10.
That wasn’t all. The Seventh Circuit also found that the District Court erroneously allowed liability for negligence claims without proof of a product defect, and liability for strict liability claims without a “duty to warn or any proof that the lack of a warning caused the plaintiffs’ injuries.” Id. *9. These errors required judgment as a matter of law for one defendant, and a new trial for another.
So is “risk-contribution” still a viable tort law theory in Wisconsin? It’s less than clear. Wis. Stat. § 895.046(4) left only a narrow exception for plaintiffs “who have no other remedy and whose injuries stem from a ‘complete[ly] integrated product’ produced in ‘chemically and physically identical’ forms and sold in generic packaging.” Burton, *5. And although the Wisconsin Supreme Court was just one vote shy of eliminating risk-contribution for white lead carbonate altogether in Clark, the composition of the court has changed significantly since then, leaving no guarantees as to how the court might rule in a future case on this issue. Wisconsin products liability practitioners would be wise to read Burton’s excellent description of how we got here, and to stay tuned for where these cases go next.
1 The plot then thickened, as the Wisconsin Legislature drafted Wis. Stat. § 895.046 to be retroactive, which would have closed the window entirely. But the Seventh Circuit held that retroactive application would violate Wisconsin’s constitution, Gibson v. American Cyanamid Co., 760 F.3d 600 (7th Cir. 2014), and the Wisconsin Supreme Court split 3-3 (with one justice not participating) on that question, Clark ex rel. Gramling v. Am. Cyanamid Co., 367 Wis.2d 540, 877 N.W.2d 117 (2016), thus leaving the 2005-2011 window open.