Burton v. Am. Cyanamid Co.
| Decision Date | 27 February 2020 |
| Docket Number | Case No. 07-CV-0441,Case No. 07-CV-0303, Case No. 10-CV-0075 |
| Citation | 441 F.Supp.3d 705 |
| Parties | Glenn BURTON, Jr, Plaintiff, v. AMERICAN CYANAMID CO, et al., Defendants; Ravon Owens, Plaintiff, v. American Cyanamid Co, et al., Defendants; Cesar Sifuentes, Plaintiff, v. American Cyanamid Co, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Corey G. Lorenz, Edward A. Wallace, Mark R. Miller, Umar Sattar, Wexler Wallace LLP, Chicago, IL, Frank T. Crivello, II, Keith E. Trower, Krista G. LaFave Rosolino, Victor C. Harding, Warshafsky Rotter Tarnoff & Bloch SC, Peter G. Earle, Law Offices of Peter Earle LLC, Milwaukee, WI, Frederick C. Baker, Sara O. Couch, Breanne V. Cope, Caroline W Rion, Motley Rice LLC, Mt Pleasant, SC, Robert J. McConnell, Fidelma L Fitzpatrick, Jonathan D. Orent, Michael G Rousseau, Motley Rice LLC, Providence, RI, Neil T. Leifer, Neil T Leifer LLC Auburndale, MA, for Plaintiff.
Richard W. Mark, Gibson Dunn & Crutcher LLP, Elyse D. Echtman, Orrick Herrington & Sutcliffe LLP, New York, NY, Anthony S. Baish, Godfrey & Kahn SC, Daniel J. Kennedy, Ralph A. Weber, Gass Weber Mullins LLC, Jeffrey K. Spoerk, Quarles & Brady LLP, Anthony S. Baish, Godfrey & Kahn SC, Jonathan J. Strasburg, Aaron H. Kastens, Paul E. Benson, Michael Best & Friedrich LLP, Trevor J. Will, Foley & Lardner LLP, Milwaukee, WI, Jaclyn Clair Kallie, Bascom Budish & Ceman SC, Wauwatosa, WI, Andrew M. Belisle, Eric A. Larson, Jeffrey K. Douglass, Robert P. Alpert, Morris Manning & Martin LLP, Altanta, GA, Timothy Andrew Bascom, Bascom Budish & Ceman SC, Germantown, WI, Jontille D. Ray, Lisa MacKinnon Sharp, Christian E. Henneke, Eric Samuel Fleming, Joy C. Fuhr, Steven R. Williams, McGuireWoods LLP, Richmond, VA, Cortney G. Sylvester, Courtney E. Ward-Reichard, Dana M. Lenahan, Erik T. Salveson, Michael T. Nilan, Nilan Johnson Lewis PA, Minneapolis, MN, for Defendants.
DECISION AND ORDER
Glenn Burton, Ravon Owens, and Cesar Sifuentes brought negligence and strict liability claims against six former manufacturers of white lead carbonate pigment (WLC). The plaintiffs alleged that they suffered injuries when, as young children, they ingested WLC that had been applied to the walls of their homes as a component of paint. Because they could not identify the manufacturers of the specific WLC that harmed them, the plaintiffs proceeded under the risk contribution theory of liability, which was extended to WLC cases by the Wisconsin Supreme Court in Thomas ex rel. Gramling v. Mallett , 285 Wis.2d 236, 701 N.W.2d 523 (2005).
I consolidated the three cases for trial. At the close of trial, the jury returned verdicts in favor of each of the plaintiffs and against three of the named defendants: Sherwin-Williams, DuPont, and Armstrong Containers. The jury awarded each plaintiff two million dollars in damages, and the three liable defendants agreed to allocate this sum among themselves rather than litigate allocation in a second phase of trial.
Sherwin-Williams has filed two motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50. It argues that judgment as a matter of law is proper because the evidence at trial did not provide the jury with a legally sufficient basis for its verdicts against Sherwin-Williams. For the reasons discussed below, I will deny both motions.
Because I discuss the facts in detail in the course of my analysis, in this section I will present only those facts necessary to give context to the analysis.
WLC is a fine white powder that was historically used as a pigment in paint. During the first half of the twentieth century, Sherwin-Williams sold WLC in three forms for use in residential paint: as raw powder; as a paste called "white lead in oil" (WLO) made by mixing WLC with linseed oil; and as a component of ready-mixed paint. The first two forms—raw WLC powder and WLO—were commonly sold to tradesmen called "master painters" who would mix the WLC or WLO with other ingredients according to their own proprietary formulas to make paint, which they would then apply to their customers' homes. Ready-mixed paints were sold both to master painters and directly to consumers. Sherwin Williams manufactured WLC between 1910 and 1947. Tr. 5075. It sold white lead in oil between 1910 and 1969. It sold ready-mix paints that contained WLC between 1890 and 1969. Tr. 4955.
Over the course of the twentieth century, the medical community came to understand that the residential use of paint containing lead was associated with childhood lead exposure. The date when American medical experts first understood and publicized the risk of lead paint to children—particularly the risk that the paint might deteriorate and be ingested in the form of dust—was at issue in this trial; plaintiffs' position is that the risk was known as early as the nineteen-teens or before. In 1955, Sherwin-Williams began including warning labels on products that contained lead stating: Tr. 5055-56. Federal regulations limited and then banned the use of lead pigment in residential paint beginning in the 1970s.
The medical community's understanding of the risks associated with even low-level exposures to lead has also evolved over time. In the early twentieth century, lead poisoning
was recognized by severe symptoms including seizure and coma. As blood testing techniques became more refined, doctors began recognizing effects of lead and recommending treatment at lower levels of exposure. Relatedly, the blood lead level (BLL) identified in Wisconsin law as constituting "lead poisoning" has moved steadily downward since the mid-twentieth century. Wisconsin law now defines lead poisoning as a blood lead level of 5 µg/dL (micrograms of lead per deciliter of blood).
Each of the three plaintiffs was diagnosed with elevated BLLs as a young child. Plaintiff Glenn Burton's was diagnosed when he was around two years old; his highest recorded BLL was 31 µg/dL. Plaintiff Caesar Sifuentes was diagnosed when he was around two years old; his highest recorded BLL was 48 µg/dL. Ravon Owens was diagnosed as a toddler; his peak recorded BLL was 53 µg/dL, and his levels remained elevated for many years. At the time their elevated BLLs were diagnosed, both Mr. Sifuentes and Mr. Owens received chelation therapy
, an inpatient medical procedure that clears lead from the blood. Paint containing WLC was found in each of the three plaintiffs' homes, and each plaintiff claims that the WLC pigment was the primary cause of his lead exposure. Each also claims that he suffered neurological impairment resulting from the lead exposure.
I may enter judgment against a party who has been fully heard on an issue in a jury trial if "there is no legally sufficient evidentiary basis for a reasonable jury to find for the party on that issue." Fed. R. Civ. P. 50(a) ; Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 149-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "Judgment as a matter of law is proper only if a reasonable person could not find that the evidence supports a decision for a party on each essential element of the case, viewing the evidence in the light most favorable to the nonmovant" and making all reasonable inferences permitted by the evidence. Campbell v. Peters , 256 F.3d 695, 699 (7th Cir. 2001) (citations omitted); Susan Wakeen Doll Co., Inc. v. Ashton Drake Galleries , 272 F.3d 441, 449 (7th Cir. 2001). In rendering this decision, I may not weigh the evidence or make credibility determinations. Martinez v. City of Chicago, 900 F.3d 838, 844 (7th Cir. 2018). Although I am to review the entire record, I "must disregard all evidence favorable to the moving party that the jury [was] not required to believe." Reeves , 530 U.S. at 150-51, 120 S.Ct. 2097.
Sherwin-Williams makes several arguments in support of its motions for judgment as a matter of law: (1) there was insufficient evidence that Sherwin-Williams breached its duty of ordinary care; (2) due process shields Sherwin-Williams from plaintiffs' strict liability claims; (3) there was insufficient evidence that Sherwin-Williams' WLC was defective; (4) there was insufficient evidence that Sherwin-Williams' WLC reached the consumer without substantial change; (5) the "sophisticated user" doctrine shielded Sherwin-Williams from liability; (6) there was insufficient evidence that plaintiffs had suffered an injury as a result of their lead exposure; (7) there was insufficient evidence that Sherwin-Williams' products or conduct were cause-in-fact of plaintiffs' lead exposure; and (8) there was insufficient evidence to support the jury's award of $2 million in damages to each plaintiff. I will address these arguments in turn.
Sherwin Williams argues that plaintiffs did not present evidence sufficient to support a legally cognizable theory of negligence. It argues that Wisconsin law does not recognize a claim of negligence based only on manufacture and sale of a product known to be dangerous, and that the plaintiffs' claim that the defendants should not have made or sold WLC for use in paint amounts to a claim of negligent product design which was foreclosed by the Wisconsin Supreme Court in Godoy ex rel. Gramling v. E.I du Pont de Nemours and Co. , 319 Wis.2d 91, 110-115, 768 N.W.2d 674 (2009). Sherwin-Williams is wrong on both points.
Under Thomas, a plaintiff seeking to recover on a negligence claim must show that the defendant's conduct breached a legally recognized duty of care that it owed to the plaintiff. Under Wisconsin law, "everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." Brenner v. Amerisure Mutual Insurance Company , 374 Wis.2d 578, 588, 893 N.W.2d 193 (2017) (quoting Behrendt v. Gulf Underwriters Ins. Co....
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