Burton v. E.I. Du Pont De Nemours & Co.

• Decision Date: 15 April 2021
• Docket Number: 20-1782,20-1776,20-1783,Nos. 20-1774,20-1777,20-1780,20-1784 & 20-1785,20-1781,s. 20-1774
• Citation: 994 F.3d 791
• Parties: Glenn BURTON, Jr., Ravon Owens, and Cesar Sifuentes, Plaintiffs-Appellees, v. E.I. DU PONT DE NEMOURS AND COMPANY, INC., The Sherwin-Williams Company, and Armstrong Containers, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

994 F.3d 791

Glenn BURTON, Jr., Ravon Owens, and Cesar Sifuentes, Plaintiffs-Appellees,

v.E.I. DU PONT DE NEMOURS AND COMPANY, INC., The Sherwin-Williams Company, and Armstrong Containers, Inc., Defendants-Appellants.

Nos. 20-1774

20-1776

20-1777

20-1780

20-1781

20-1782

20-1783

20-1784 & 20-1785

United States Court of Appeals, Seventh Circuit.

Argued December 9, 2020

Decided April 15, 2021

Rehearing and Rehearing En Banc Denied May 12, 2021

Frederick C. Baker, Attorney, Motley & Rice, Mount Pleasant, SC, Fidelma L. Fitzpatrick, Attorney, Motley & Rice LLC, Providence, RI, Mark R. Miller, Attorney, Wexler Wallace LLP, Chicago, IL, for Plaintiffs-Appellees.

Paul E. Benson, Attorney, Michael Best & Friedrich LLP, Milwaukee, WI, Brian David Schmalzbach, Eric Samuel Fleming, Joy C. Fuhr, Attorneys, McGuirewoods LLP, Richmond, VA, for Defendant-Appellant E.I. du Pont de Nemours and Company, Inc.

Robert P. Alpert, Eric Larson, Jeffrey K. Douglass, Attorneys, Morris, Manning & Martin LLP, Atlanta, GA, Timothy A. Bascom, Attorney, Bascom, Budish & Ceman, S.C. Germantown, WI, for Defendant-Appellant Armstrong Containers Inc.

Leon F. DeJulius, Jr., Esq., Attorney, Jones Day, New York, NY, Charles H. Moellenberg, Jr., Anderson Bailey, Attorneys, Jones Day, Pittsburgh, PA, Jeffrey K. Spoerk, Attorney, Quarles & Brady LLP, Milwaukee, WI, for Defendant-Appellant Sherwin Williams Company.

Eric G. Lasker, Shannon N. Proctor, Attorneys, Hollingsworth LLP, Washington, DC, for Amicus Curiae American Coatings Association.

Cory L. Andrews, Attorney, Washington Legal Foundation, Washington, DC, for Amicus Curiae Washington Legal Foundation.

Philip S. Goldberg, Attorney, Shook, Hardy & Bacon LLP, Washington, DC, for Amicus Curiae Wisconsin Manufacturers & Commerce, National Association of Manufacturers, and Coalition for Litigation Justice, Inc.

Alan J. Lazarus, Attorney, Faegre Drinker Biddle & Reath LLP, San Francisco, CA, David Brian Sudzus, Attorney, Faegre Drinker Biddle & Reath, LLP, Chicago, IL, for Amicus Curiae Product Liability Advisory Council, Incorporated.

Before Wood, Scudder, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

These sprawling toxic-tort cases take us into the weeds of Wisconsin products liability law. The product at issue is white lead carbonate—a dry white powder historically used as the "pigment" in many lead-based paints. Paint has two essential components: the pigment, which hides and protects the painted surface, and the liquid "vehicle," which allows the pigment to be spread across the surface. Over time a consensus developed that lead-based paints were toxic and posed especially great dangers to young children, who were prone to chewing paint flakes or putting scattered lead dust into their mouths during critical stages of brain development. These dangers led the federal government to ban lead-based paint for residential use in 1978. Wisconsin followed suit two years later. Even after these bans, however, lead-based paint remained on the walls of many homes throughout the United States.

The plaintiffs in these consolidated cases are three young men who grew up in Milwaukee homes that had lead-based paint on the walls. They were diagnosed with lead poisoning

as young children in the 1990s or early 2000s. Years later, they filed these lawsuits against several manufacturers of white lead carbonate, seeking compensation for brain damage and other injuries resulting from their ingestion of lead paint particles. The plaintiffs identified the paint pigment in their childhood homes as white lead carbonate, but they could not identify the specific company responsible for manufacturing the white lead carbonate that they ingested. To overcome this failure of proof, they relied on Thomas ex rel. Gramling v. Mallett , 285 Wis.2d 236, 701 N.W.2d 523 (2005), in which the Wisconsin Supreme Court adopted a "risk-contribution" theory of liability for plaintiffs suing manufacturers of white lead carbonate. The risk-contribution theory modifies the ordinary rule in tort law that a plaintiff must prove that a specific defendant's conduct caused his injury. It instead seeks to apportion liability among the "pool of defendants" who could have caused the injury.

After years of pretrial litigation, the plaintiffs went to trial against five manufacturers of white lead carbonate. The jury found three of the manufacturers liable and awarded the plaintiffs $2 million each. The three defendants found liable (E.I. du Pont de Nemours and Company, Inc., the Sherwin-Williams Company, and Armstrong Containers, Inc.) now appeal. They challenge a long list of the district court's pretrial, trial, and post-trial rulings. We see no error in many of these rulings, and we commend the district court for its thoughtful attention and diligent effort throughout this complex case. Nonetheless, we hold that the court committed three significant legal errors about the scope of Wisconsin products liability law. These errors shaped the trial and impermissibly expanded the defendants’ potential liability. Along with a separate error in the admission of certain expert testimony, they compel us to reverse the judgments and remand for further proceedings.

I. Background

Wisconsin's risk-contribution theory is at the heart of this appeal.¹ In this section we trace the development of the risk-contribution theory to provide context for the plaintiffs’ lawsuits. We then describe the facts and procedural history giving rise to this appeal.

A. Legal Background

1. Collins

The risk-contribution theory has its origins in Collins v. Eli Lilly Co. , 116 Wis.2d 166, 342 N.W.2d 37 (1984). In that case, Therese Collins's mother took diethylstilbestrol

(DES) while pregnant with Collins in 1957–58. DES was a miscarriage-prevention drug that was on the market from 1947 to 1971. In 1971, medical research established a possible statistical link between DES and the later development of vaginal cancer in children exposed to DES in utero. After developing vaginal cancer in 1977, Collins sued various drug companies that had produced or marketed DES while her mother was pregnant.

Under traditional tort law, Collins faced an "insurmountable obstacle": she could not identify which drug company had produced or marketed the DES that her mother had taken. Id. at 45. She could not do so because DES was a "fungible drug produced with a chemically identical formula." Id. at 44. Moreover, hundreds of different companies had produced or marketed DES. And, owing to the passage of time, records and evidence pertaining to drug companies’ production or marketing of DES and Collins's mother's prescription were largely unavailable.

The Wisconsin Supreme Court was "faced with a choice of either fashioning a method of recovery for the DES case which will deviate from traditional notions of tort law, or permitting possibly negligent defendants to escape liability to an innocent, injured plaintiff." Id. at 45. While acknowledging that "DES cases pose difficult problems," the court concluded that, "as between the plaintiff, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury." Id. at 49. Relying on its authority under the Wisconsin Constitution to fashion an adequate remedy, see Wis. Const. art. I, § 9, the court proceeded to adopt a risk-contribution theory of recovery for DES plaintiffs, adding that "this method of recovery could apply in situations which are factually similar to the DES cases." Collins , 342 N.W.2d at 49. The rationale for the risk-contribution theory was that the defendant drug companies had, at the very least, "contributed to the risk of injury to the public" by producing or marketing a drug that turned out to have harmful side effects. Id. Moreover, the "possibly responsible" drug companies were in a better position than the "innocent plaintiff" to absorb the cost of, and protect against, injuries from DES. Id. at 49–50.

As for how the risk-contribution theory would apply: a plaintiff would need to sue at least one defendant and prove "that the plaintiff's mother took DES; that DES caused the plaintiff's subsequent injuries; that the defendant produced or marketed the type of DES taken by the plaintiff's mother; and that the defendant's conduct in producing or marketing the DES constituted a breach of a legally recognized duty to the plaintiff." Id. at 50. While a plaintiff only had to sue one defendant, there were incentives to sue as many as possible, and named defendants were free to implead other drug companies as third-party defendants.

The court made clear that the risk-contribution theory was available for both negligence and strict liability claims. A plaintiff proceeding on either theory would have to prove the traditional elements of the claim, with one exception. Instead of proving that a defendant drug company caused the plaintiff's injuries, the plaintiff would only have to prove that the defendant "produced or marketed the type of DES taken by the plaintiff's mother." Id. at 51.

If a plaintiff succeeded in making this prima facie showing, the burden would shift to the defendant to prove "that it did not produce or market the subject DES either during the time period the plaintiff was exposed to DES or in the relevant geographical market area in which the plaintiff's mother acquired the DES." Id. at 52. To prevail on these defenses, a defendant would have to prove that "the DES it produced or marketed could not have reached the plaintiff's mother." Id.

The goal of this burden-shifting procedure was to create "a pool of defendants which it can reasonably be assumed could have caused the plaintiff's injuries." Id. at 52. The court acknowledged that the risk-contribution theory could result in liability for innocent defendants, but it accepted this possibility as "the price the defendants, and perhaps ultimately society, must pay...