Tort Law

Lead-paint liability without proof of specific maker doesn't violate due process, 7th Circuit says


A federal appeals court has upheld a legal theory that holds lead-paint manufacturers liable for neurological problems in children who lived in homes with the product, even without proof of the specific maker of the paint that caused the harm.

The Chicago-based 7th U.S. Circuit Court of Appeals ruled that the “risk contribution” theory of liability developed by the Wisconsin Supreme Court in 2005 does not violate the due-process, takings or interstate commerce clauses of the U.S. Constitution. The Milwaukee Journal Sentinel covered the decision (PDF), written by U.S. District Judge Edmond Chang, sitting by designation.

Under the theory, the defendant companies have the burden of proving they didn’t make the product at the time, or they didn’t produce it in the region where the plaintiff lived.

The decision reinstated the suit against six paint manufacturers filed by Ernest Gibson, who alleges he suffers from neurological defects as a result of lead paint used in a Milwaukee home where he lived with his family beginning in 1997.

The state legislature passed a law in 2011 that had the effect of overturning the risk contribution theory, and passed another law in 2013 attempting to make it retroactive. The 7th Circuit said Gibson had a vested right under Wisconsin’s constitution to pursue his suit, which was pending when the second law was passed.

More than 170 lead-paint victims have similar suits that were on hold pending the decision, the Milwaukee Journal Sentinel says.

Hat tip to How Appealing.

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