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  • WisBar News
    July 14, 2009

    Lead in lead paint is not a design defect, Wisconsin Supreme Court says

    Justices agree that lead in lead paint cannot be a design defect. But the court divided over whether the question is properly resolved according to Wisconsin’s continued reliance upon Restatement (Second) of Torts or whether it is time to embrace the third Restatement.

    July 14, 2009 – The Wisconsin Supreme Court dismissed claims alleging the inclusion of lead is a design defect in lead paint, but justices argued whether they should introduce a new standard to reach this conclusion.

    In Godoy v. E.I. DuPont, 2009 WI 78, the court explained that lead is the “characteristic ingredient” of the product, not a defective design. To remove the lead would lead to an entirely different product, rather than the same – but safer – product.

    Reaching its decision, the court’s lead opinion, authored by Justice Ann Walsh Bradley, emphasized that this holding relies upon Restatement (Second) of Torts. But Justice David Prosser, in a concurring opinion, called on the court to update products liability law in Wisconsin by adopting a rationale found in Restatement (Third) of Torts.

    Prosser criticized the lead opinion for leaving Wisconsin law “out of step” with the rest of the nation for no good reason. “The lead opinion restates Wisconsin’s peculiar position on alleged design defects without mustering the intellectual firepower to defend it,” he wrote.

    In her own concurring opinion, Bradley replied that Prosser – joined by Justices Annette Kingsland Ziegler and Michael Gableman – is pushing for a policy change neither party in this case sought. “[T]hey appear to act like legislators, advancing a policy initiative which they favor,” she wrote.

    Chief Justice Shirley Abrahamson and Justice N. Patrick Crooks joined Bradley’s resistance to adopting Restatements (Third) in this case.

    Lower court analyses

    Ruben Baez Godoy was poisoned when he was one year old after ingesting white lead carbonate derived from painted surfaces, paint chips, paint flakes, and dust of the Milwaukee apartment where he and his family lived in 1998.

    In 2005, the supreme court expressly recognized the right of a lead-poisoned child to sue the former manufacturers of lead pigment for personal injury damages under both negligence and strict liability in Thomas ex rel. Gramling v. Mallett, 2005 WI 129.

    Godoy alleged that the paint manufacturers knew that the white lead carbonate was dangerous when used in paint. He further alleged that the companies lied by failing to disclose the hazardous nature of white lead carbonate and by representing their products as safe.

    The circuit court and the court of appeals ruled that Godoy failed to state a claim when he alleged that lead in white lead carbonate pigment is a defective design. These courts concluded that lead is an “inherent characteristic,” such that white lead carbonate pigment cannot be designed without it.

    In its opinion, the court of appeals further stated that white lead carbonate cannot be deemed defectively designed when an “alternative design” would make the product something else.

    Under Restatement (Third) of Torts, a plaintiff may be asked to show a design defect by demonstrating the feasibility of an alternative design. The court of appeals noted that Wisconsin does not follow this version of the Restatement, and offered the analysis only to “illumine” its inquiry.

    Restatement (Second) is analytical ‘touchstone’

    In the court’s lead opinion, Bradley explained that  Restatement (Second) of Torts § 402A revolutionized the law by imposing liability on sellers of “any product in a defective condition unreasonably dangerous to the user” when it reaches the consumer “without substantial change in the condition from which it was sold” no matter what degree of care they exercised.

    Citing the comments to § 402A, Bradley noted that a “defective condition” does not arise from ingredients “characteristic of the product itself.” Consequently, Bradley said, the lower courts correctly found that lead is not a design defect of lead paint because removal of lead creates an entirely different product.

    But Bradley corrected the court of appeals for citing concepts found in Restatement (Third). “To the extent that the court of appeals relied on a reasonable alternative design requirement, the court’s analysis was misguided,” she wrote.

    “We have explained that although the feasibility of an alternative design can be considered when evaluating a design defect claim, it is not a requirement,” Bradley continued.

    Godoy criticizes the court’s approach

    But Godoy argued there is no practical difference between a “reasonable alternative design” requirement and the court’s insistence that a defective design claim fails when it targets a feature that is the product’s “characteristic ingredient.” In either case, a plaintiff must address the possibility of the product without its offending element.

    Bradley responded that a “reasonable alternative design” requirement invites an expensive “battle of the experts” as litigants offer competing product designs. By contrast, the “characteristic ingredient” analysis is the simple recognition that “some ingredients cannot be eliminated from a design without eliminating the product itself,” she said.

    Prosser criticizes the court’s approach

    Godoy’s complaint found a sympathetic response from Prosser in his concurrence.

    “[T]he rational employed by the lead opinion is ultimately tantamount to a conclusion that the plaintiff’s claim must fail because he cannot establish a reasonable alternative design for white lead carbonate pigment,” Prosser wrote.

    However, Prosser’s point was that the court had no good reason to resist adoption of Restatement (Third).

    “The distinction between the analysis the lead opinion disparages and the analysis the lead opinion employs is too metaphysical to justify continuing disavowal of Restatement (Third) off Torts,” Prosser wrote. “Instead of denigrating Restatement (Third), I would adopt [the reasonable alternative design] of Restatement (Third) for analyzing defective design claims and put Wisconsin back in step with the evolution of products liability law.”

    An unwarranted change?

    But Bradley, writing in her own concurrence, disagreed that the two Restatements would differ as little as Prosser suggested.

    “Over the last 42 years, since we adopted Restatement (Second) of Torts § 402A, manufacturers of defective products can be held strictly liable even if they were not negligent,” Bradley said.

    “Strict products liability focuses on the dangerous condition of the product rather than on the manufacturer’s conduct,” Bradley continued. “Under the Restatement (Third)’s approach, however, strict liability is predicated on the manufacturer’s negligence … The Restatement (Third) imposes liability ‘when the foreseeable risk of harm could have been reduced or avoided by the adoption of a reasonable alternative design.’”

    Bradley added, “Unlike the orientation of § 402A, which arose out of a concern for the protection of consumers, the orientation of Restatement (Third) reportedly emphasizes the protection of manufacturers.”

    As one example of this, Bradley mentioned the Restatement (Third)’s elimination of the “consumer contemplation test” which finds a product to be “defective” when it is “in a condition not contemplated by the ultimate consumer and unreasonably dangerous to that consumer.”

    But Prosser said § 402A is “outdated and no longer reflects the complexities that have developed in products liability law over the past 45 years.”

    Prosser praised Restatement (Third) for dividing products liability into three distinct categories: manufacturing defects, design defects, and defects based on failure to warn. At the time of § 402A’s introduction, claims for defective design or inadequate warnings were in their infancy, he reported.

    Accordingly, Prosser said, the consumer contemplation test “makes little or no sense in the context of defective design claims.”

    “[I]t is hard to imagine that ordinary consumers have any expectations regarding ‘the technical design characteristics of a product’ other than the most basic expectation that the product be designed to work and to work safely,” Prosser wrote.

    Moreover, “applying the consumer contemplation test to defective design claims runs the risk of labeling entire product lines defective without ever considering the utility the products create for society,” Prosser said. For example, a new drug that helps many might adversely affect a few, he said.

    “Because a finding of liability for defective design has grave repercussions for the product at issue, courts should be required to consider not only the risks associated with the product but also the benefits,” Prosser wrote.

    Prosser added that Restatement (Third) moves the focus from the ordinary consumer’s expectations to “asking whether the product’s design was reasonable.” That is, Prosser said, Restatement (Third) imposes a risk-utility balancing approach that leaves the manufacturer responsible for only foreseeable risks.

    In turn, this “promotes efficient investment in product safety and avoids the risk of recklessly eliminating entire product lines as a result of a hidden or undiscoverable design risk,” Prosser wrote.

    Not plaintiff-unfriendly?

    Prosser acknowledged that Restatement (Third) requires most plaintiffs to submit evidence establishing that that the manufacturer could have adopted a reasonable alternative design, which would have reduced or eliminated a product’s harm.

    “However, the reasonable alternative design requirement is not as significant a barrier to recovery as the lead opinion suggests,” Prosser wrote.

    “Although a complex products liability case may result in a ‘battle of the experts,’ this is not likely to be caused by the plaintiff having to submit sufficient evidence of a reasonable alternative design,” he said. “Much of this evidence, where it exists, can be obtained through discovery.”

    Further, cases in which the feasibility of a reasonable alternative is “obvious and understandable” – such as making the buttons on a toy irremovable to prevent a choking hazard for infants – do not require expert testimony, he said.

    Noting that Wisconsin is among a minority of states that have yet to adopt Restatement (Third), Prosser wrote, “Wisconsin has every right to stand alone, but it should not do so unless its singular approach can be supported objectively and defended as sound.”

    Alex De Grand is the legal writer for the State Bar of Wisconsin.


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