Allen v. Am. Cyanamid

• Decision Date: 22 March 2021
• Docket Number: Case No. 14-CV-1423,Case No. 11-CV-0055
• Citation: 527 F.Supp.3d 982
• Parties: Maniya ALLEN, et al., Plaintiff, v. AMERICAN CYANAMID et al., Defendants; Dijonae Trammel, Plaintiff, v. American Cyanamid et al., Defendants
• Court: U.S. District Court — Eastern District of Wisconsin

527 F.Supp.3d 982

Maniya ALLEN, et al., Plaintiff,

v.AMERICAN CYANAMID et al., Defendants;

Dijonae Trammel, Plaintiff,

v.American Cyanamid et al., Defendants;

Case No. 11-CV-0055

Case No. 14-CV-1423

United States District Court, E.D. Wisconsin.

Signed March 22, 2021

DECISION AND ORDER

LYNN ADELMAN, United States District Judge

The plaintiffs in these cases allege they were injured when they ingested paint containing white lead carbonate (WLC) as young children. Defendants produced or sold, or are successors-in-interest to producers or sellers of, WLC. Plaintiffs proceed on Wisconsin's risk-contribution theory of liability which relaxes the causation standard and allows a plaintiff to establish a prima facie case on the basis that a manufacturer produced the type of product that caused harm and thus contributed to the risk of injury to the public. Before me now are several motions for partial summary judgment and for summary judgment.

I. SUMMARY JUDGMENT STANDARD

Summary Judgment is required where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When considering a motion for summary judgment, I view the evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. ANALYSIS

A. INTERVENING SUPERSEDING CAUSE

Plaintiffs move for summary judgment on defendants’ affirmative defense of intervening or superseding cause and ask the court to preclude defendants from arguing that the activities of plaintiffs’ parents, caregivers, landlords, and the city of Milwaukee were an intervening or superseding cause of plaintiffs’ lead poisoning.

In Wisconsin, the intervening or superseding cause defense is subsumed within the first of the six "public policy" factors by which a court may limit liability even though a jury has found a defendant negligent and determined that the defendant's negligence was cause-in-fact of the plaintiff's damages. Specifically, the first factor asks whether a plaintiff's injury is too remote from a defendant's causal negligence. Cefalu v. Continental Western Ins. Co. , 2005 WI App 187, ¶¶20-21, 285 Wis.2d 766, 703 N.W.2d 743 (stating that the "remoteness factor revives the intervening or superseding cause doctrine").

Typically, Wisconsin courts defer analysis of superseding cause and other public policy factors until after trial. See Thomas ex rel. Gramling v. Mallett , 2005 WI 129, ¶ 166 n. 54, 285 Wis.2d 236, 701 N.W.2d 523 ("In most cases the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability."); Alvarado v. Sersch , 2003 WI 55, ¶ 20, 262 Wis.2d 74, 662 N.W.2d 350 ("[P]ublic policy factors limiting liability should be considered only after a full resolution of the facts at trial.").

I will comply with the guidance of the Wisconsin Supreme Court and defer my consideration of the intervening or superseding cause defense until after the jury has reached a verdict. Therefore, I will deny plaintiffs’ motion for summary judgment on this defense.

B. ARMSTRONG CONTAINER'S MOTION FOR SUMMARY JUDGMENT

Armstrong Containers ("Armstrong") moves for summary judgment dismissing plaintiffs’ claims against Armstrong. It argues that there is no genuine dispute of fact as to whether any WLC produced or sold by John R. MacGregor Company or the MacGregor Lead Company (together, "MacGregor"), Armstrong's predecessors, could reasonably have contributed to plaintiffs’ injuries. Specifically, Armstrong argues that plaintiffs’ have identified only one brand of paint containing MacGregor WLC, Scotch Laddie paint, as being sold in the Milwaukee market during the relevant time period and that Armstrong's expert, Dr. Brown, has determined none of the paint layers found in plaintiffs’ homes contained Scotch Laddie paint.

Plaintiffs argue that, regardless of the validity of Dr. Brown's analysis, this fact is not dispositive because it fails to rule out other brands containing WLC manufactured by MacGregor, such as Enterprise Paint and Armstrong Paint & Varnish. It is irrelevant, plaintiffs argue, that they have not produced evidence that these brands were present in the Milwaukee market during the relevant time because, under Thomas , Armstrong bears the burden of proving its product was not sold in Milwaukee.

I agree with the plaintiffs. Thomas is clear that once plaintiffs have established their prima facie case, "the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located." 2005 WI 129, ¶ 163, 285 Wis.2d 236, 701 N.W.2d 523. Thomas goes on to say that "if relevant records do not exist that can substantiate either defense, we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers]." Id. (internal quotations omitted.) Although Armstrong's expert may have excluded some paint formulas which contained MacGregor WLC, Armstrong has not identified evidence excluding other brands containing MacGregor WLC. Nor has Armstrong pointed to any evidence that that these brands were not sold in Milwaukee. A reasonable jury may therefore conclude that Armstrong has not met its burden of proof on the issue of whether MacGregor WLC could reasonably have contributed to plaintiffs’ injuries. Accordingly, I will deny its motion for summary judgment.

C. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF ARMSTRONG CONTAINERS BEING SUCCESSOR-IN-INTEREST TO MACGREGOR LEAD

In Burton , I held that Armstrong was a successor-in-interest to MacGregor Lead. Burton v. American Cyanamid , 2018 WL 5775917 (E.D. Wis. November 2, 2018). Plaintiffs move for summary judgment on the issue, adopting the briefings filed by the Burton plaintiffs, who have the same counsel as the plaintiffs in this case, and citing my previous order on the issue. Armstrong opposes summary judgment and raises new arguments not addressed in my previous ruling.

The background and details of this issue have been thoroughly covered in the relevant order in the Burton case and I will not revisit them here. Id. For the purposes of this motion, it suffices to say that the issue depends on whether an asset purchase agreement dating to 1983 included an express or implied assumption of unknown liabilities. I previously held that it did. Id. at *5. Because none of the parties raised the issue of choice of law, I applied the substantive law of Wisconsin, the forum state. Armstrong now argues that the agreement should be construed and interpreted under Illinois law. However, Armstrong does not point to any relevant difference between Illinois and Wisconsin law. In fact, Armstrong argues that the relevant "Wisconsin law is substantially similar to Illinois law." "Conflicts rules are appealed to only when a difference in law will make a difference in the outcome." International Adm'rs, Inc. v. Life Ins. Co. of North Am. , 753 F.2d 1373, 1376 n.4 (7th Cir. 1985). On issues where there is no disagreement between the states, the law of the forum state is applied. Id. Because Armstrong has not identified any disagreements between the applicable laws of Wisconsin and Illinois, the application of the law of the forum state was appropriate.

Armstrong also argues that I incorrectly applied Wisconsin law in my previous order and that the agreement should not be read to include an express or implied assumption of unknown liabilities. It does not cite to any authorities, nor make any new arguments, which I did not consider in my original ruling. I disagree that I incorrectly applied Wisconsin law, and I hold that the agreement did include an express or implied assumption of unknown liabilities for the reasons described in my order in the Burton case. See Burton , 2018 WL 5775917 (E.D. Wis. November 2, 2018)

Finally, Armstrong argues that summary judgment is inappropriate because ambiguity in the contract creates a genuine issue of material fact. Armstrong is correct that, once a contract is determined to be ambiguous, determining the parties intent usually becomes a job for the trier of fact. See Matthews v. Wis. Energy Corp., Inc. , 534 F.3d 547, 556 (7th Cir. 2008). However, summary judgment is appropriate where consideration of extrinsic evidence and the language of the contract permits a trier of fact to come to but one conclusion. See ConFold Pacific Inc. v Polaris Indus., Inc. , 433 F.3d 952, 956–57 (7th Cir. 2006) ; Continental Cas. Co. v. Northwestern Nat. Ins. Co. , 427 F.3d 1038, 1041 (7th Cir. 2005). In my original ruling, I explained that Armstrong's proposed interpretation would result in a contract that "would not be a rational business instrument" and that it would be "incredible that a reasonable business would enter into such a contract." Burton , 2018 WL 5775917 at *5 (E.D. Wis. November 2, 2018) (quotations omitted). In other words, there was only one reasonable interpretation of the contract despite its ambiguity. Because the only reasonable interpretation of the contract is that it included an assumption of unknown liabilities, I conclude that a reasonable trier of fact could not find in favor of Armstrong on this issue and I will grant the motion for partial summary judgment.

D. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF THE FUNGIBILITY OF WLC

Plaintiffs move for summary judgment on the issue of the fungibility of WLC. I concluded in the Burton trial that, under Wisconsin law, WLC is fungible as a matter of law. Burton v. American Cyanamid , 341 F.Supp.3d 941, 945 (E.D. Wis. 2018) ; see also Burton v. American Cyanamid , 07-CV-0303, ECF no. 1059. Sherwin-Williams opposes plaintiffs’ motion but makes no arguments I...