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  • WisBar News
    April 18, 2016

    Supreme Court Splits in Lead Paint Case, Sends Back to Court of Appeals

    Joe Forward

    April 18, 2016 – A state appeals court will have to decide whether a state statute retroactively deprives a victim of lead paint poisoning from asserting a vested property right, now that the Wisconsin Supreme Court has reached a stalemate on the issue.

    The case, Clark v. American Cyanamid Co., had bypassed the appeals court through certification. But the supreme court recently split 3-3 on whether to affirm or reverse a circuit court’s decision. Justice Rebecca Bradley, recently elected to a 10-year term, did not participate. The case now goes back to the appeals court for a decision.

    The appeals court certified the case in 2015. The victim, a minor, suffered irreversible neurological damage after exposure to paint containing white lead carbonate.

    The exposure occurred between 2003 and 2006, when the victim was between two and five years old. The family had rented two different residences between that time.

    Through a guardian ad litem, the victim alleged negligence and strict liability against a number of entities who manufactured paint with white lead carbonate, including the Sherwin-Williams Company and the American Cyanamid Company.

    The victim could not identify the exact entity that manufactured the paint that caused her injury. She sued under a risk-contribution theory, which relaxes the burden to prove causation when harmed by a product but the exact manufacturer is not known.

    In 2011, the trial court stayed the case pending the outcome of a lead-based paint case in federal court and after enactment of a new law that prospectively abrogated the risk contribution theory as stated in Thomas v. Mallett, 2005 WI 129.

    In 2013, the Wisconsin Legislature abrogated Thomas retroactively. The defendants moved to dismiss, but Clark argued that retroactive application of the 2011 law that limited the use of the risk contribution theory in product liability cases is unconstitutional.

    The circuit court ruled that Wis. Stat. section 895.046 “cannot be retroactively applied in light of the state constitution’s guarantee of due process.” The court agreed that retroactive application removed the victim’s vested right to pursue her claims.

    Chief Justice Patience Roggensack, and Justices Shirley Abrahamson and Ann Walsh Bradley, would have affirmed the circuit court’s decision. Justices Michael Gableman, Annette Ziegler, and David Prosser voted to reverse, leaving a 3-3 tie.

    Now the state appeals court must decide. In its certification, though, it noted that a federal court has already held that section 895.046 violates due process.

    “Thus, if this court were to hold that § 895.046 is in fact constitutional, this holding would directly conflict with federal law,” the certification states, noting states can pass retroactive laws only if they do not violate the federal or state constitutions.

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