City of Milwaukee v. Nl Industries

• Citation: 2008 WI App 181,762 N.W.2d 757
• Decision Date: 25 November 2008
• Docket Number: No. 2007AP2873.,2007AP2873.
• Parties: CITY OF MILWAUKEE, a municipal corporation, Plaintiff-Appellant<SMALL><SUP>&#x2020;</SUP></SMALL> v. NL INDUSTRIES, a foreign corporation, Defendant-Respondent, Mautz Paint, a Wisconsin corporation, Defendant.
• Court: Court of Appeals of Wisconsin

762 N.W.2d 757

2008 WI App 181

CITY OF MILWAUKEE, a municipal corporation, Plaintiff-Appellant^† v. NL INDUSTRIES, a foreign corporation, Defendant-Respondent, Mautz Paint, a Wisconsin corporation, Defendant.

No. 2007AP2873.

Court of Appeals of Wisconsin.

Oral Argument September 17, 2008.

Opinion Filed November 25, 2008.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Christopher P. Riordan of von Briesen & Roper, S.C., of Milwaukee, and Michael D. Hausfeld, Richard S. Lewis and James J. Pizzirusso of Cohen, Milstein, Hausfeld & Toll, PLLC, of Washington, D.C., with oral argument by Richard S. Lewis.

On behalf of the defendant-respondent, the cause was submitted on the brief of James T. Murray and Michael J. Wirth of Peterson, Johnson and Murray, S.C., and Donald E. Scott, Andre M. Pauka and John M. Hughes of Bartlit, Beck, Herman, Palenchar & Scott, LLP, of Denver, CO, with oral argument by John M. Hughes.

Before CURLEY, P.J., FINE and KESSLER, JJ.

¶ 1 CURLEY, P.J

The City of Milwaukee (the City) appeals from a final judgment entered on a jury verdict in favor of NL Industries, Inc. (NL Industries). The City raises a total of twelve claims of error. First, the City argues that the special verdict should be changed because the evidence showed that NL Industries intentionally caused the public nuisance found by the jury. In addition, the City argues that a partial new trial should be granted to remedy the following: five purported erroneous rulings on the jury instructions; three allegedly separate instances of improperly admitted evidence; the trial court's decision to dismiss the City's nuisance claim based on reckless conduct; the form of the special verdict related to the City's conspiracy claim; and the trial court's decision granting summary judgment to NL Industries regarding the City's requested future abatement costs.

¶ 2 After reviewing the record, we conclude that the evidence was sufficient to support the jury's finding that NL Industries did not intentionally cause the public nuisance found by the jury. In addition, we conclude that a partial new trial is not warranted on the remaining issues raised by the City. Accordingly, we affirm.

I. BACKGROUND.

¶ 3 This appeal follows an earlier remand from this court to the trial court for a trial after we concluded that genuine issues of material fact precluded the grant of summary judgment in the defendants' favor.¹ See City of Milwaukee v. NL Indus., Inc., 2005 WI App 7, 278 Wis.2d 313, 691 N.W.2d 888 (Ct.App.2004) (NL Industries I). The relevant facts provided in our previous decision are set forth in this opinion. See id., ¶¶ 2-4.

¶ 4 According to the City's complaint, childhood lead paint poisoning is a severe public health problem in Milwaukee. The City alleged that one in five Milwaukee children tested in 1998 showed blood lead levels at or above the Centers for Disease Control threshold for lead poisoning. According to the City, "[t]his extraordinary incidence of childhood lead paint poisoning is linked to Milwaukee's old housing stock." Specifically, the City alleged that childhood lead paint poisoning is caused when children ingest lead-based paint dust and chips.

¶ 5 The alleged main source of this dust and chips was lead-based paint on old wood windows in homes in which children live. The complaint states: "Windows are exposed to weather that causes the paint on them to peel, crack, or chalk, and are subject to friction when they are opened and closed, all of which generates lead dust." In response to the problem of childhood lead poisoning, the City undertook a window abatement program in two target areas of the city.

¶ 6 The City asserted that NL Industries is responsible for these damages because its conduct in marketing and selling substantial quantities of lead pigments and/or lead-based paint in the City of Milwaukee during and after the construction of these dwellings, when it knew the hazards of lead poisoning related to its product, was a substantial factor creating the public nuisance at issue in this case.

¶ 7 Following remand, NL Industries moved for partial summary judgment on the City's request for future damages. The trial court granted the motion, and the case proceeded to trial on the remaining claims.

¶ 8 In its opening statement, the City repeatedly referenced that within the ten years preceding the trial, 19,000 children in Milwaukee were reported to have elevated levels of lead in their blood and were at risk of lead-paint poisoning. The City further referenced that a level of ten micrograms of lead in a deciliter of blood has been identified as "a red flag for the brain damage. That's where we have to worry about the public, at the level of 10 micrograms of lead in a child's blood." In explaining the abatement process to the jury during its opening statement, counsel for the City stated: "The [lead] dust is the hazard that is harming most children."

¶ 9 The evidence revealed that NL Industries was founded in 1891 and dominated the lead manufacturing market throughout most of the twentieth century. It was in the 1970s that experts began to recognize household lead dust as an additional possible source of childhood lead poisoning. In 1978, a law went into effect essentially banning the use of lead in household paint.²

¶ 10 Prior to the law's enactment, the jury heard testimony that no agency of the federal government opposed the use of lead house paint; to the contrary, federal agencies recommended its use. In Milwaukee, the jury heard that lead paint was being specified in one way or another from 1900 up to the 1960s "[f]or nearly every conceivable public building: Schools, libraries, museums, play pavilions on playgrounds, [and in] hospitals."

¶ 11 Peter English, Ph.D, M.D., explained the history surrounding childhood lead poisoning. He testified that the first case report on the issue was from 1914 and related to a child who suffered seizures and a coma, and was later discovered to have chewed lead paint off of his crib. Other cases were reported thereafter, and it was observed that the lead was acquired by an abnormal eating pattern referred to as pica, which described "a craving for unnatural articles of food, a depraved appetite." Dr. English distinguished pica from normal hand-to-mouth activity of children and further testified, "this notion of an aggressive eating problem, pica, formed part of the public health community's understanding of the disease from — from the very beginning of the first consensus that happened in the 1930s through into the 1970s."

¶ 12 The evidence revealed that a plethora of health problems are associated with childhood lead poisoning, due to the fact that lead is toxic to a number of organ systems, including developing red blood cells, the kidneys, bones, heart, blood vessels, and the brain. The damage to the developing brain can result in a loss of IQ, along with a host of other behavioral problems. During cross-examination, the City's witness, Philip Landrigan, M.D., explained that the brain is most vulnerable when the lead exposure takes place early in development. The relevant time frame includes time spent in the womb through the five or six years after birth.

¶ 13 Dr. Landrigan acknowledged that the science of lead poisoning changed dramatically throughout the twentieth century. He provided a chronology related to the changing scientific knowledge of the danger associated with lead paint:

[Counsel for NL Industries:] Then let's go to your residency, your pediatric residency. You graduated in 1967, and in that period of time, you found, did you not, that the main concern then for children in lead paint was not dust, but whether or not they had pica?

[Dr. Landrigan:] That's correct.

[Counsel for NL Industries:] And by pica, you mean the idea that children would actually eat chips of paint.

[Dr. Landrigan:] That's right.

[Counsel for NL Industries:] And that, in fact, was the prevailing opinion of the experts in the 1950s and '60s, that pica was the sole source, the sole route for children's exposure to lead paint.

[Dr. Landrigan:] That's right. Concepts of dust started to come out in — as best as I can recall, in the 1970s.

. . . .

[Counsel for NL Industries:] Would you agree, sir, that as late as 1969, 1970, a lead level as high as 60 micrograms was considered safe in children?

[Dr. Landrigan:] It was, yes.

[Counsel for NL Industries:] Then into the mid-1970s, a lead level of as high as 40 was considered safe in children.

[Dr. Landrigan:] Yes, that is correct.

(Emphasis added.)

¶ 14 It was not until 1991 that the Centers for Disease Control issued a report reflecting a public health consensus that lowered the "so-called action level for dealing with lead in children, the level of lead in blood in children," to ten micrograms. Additionally, the consensus in 1991 recognized lead dust as one of the major causes of childhood lead poisoning.

¶ 15 The City's theory at trial was that NL Industries was fully informed of the toxicity of lead when it was selling lead paint, and that whether the harm resulted from pica or lead dust was irrelevant. The City sought to recover costs of abatement in the amount of $52.6 million, spent between 1992 and 2006.³

¶ 16 At the close of the City's case-in-chief, NL Industries moved to dismiss the following claims made by the City: that NL Industries negligently, recklessly, or intentionally created the alleged public nuisance; that NL Industries engaged in abnormally dangerous activities; and that NL Industries conspired to create the alleged public nuisance. The trial court took the motions to dismiss as to the City's nuisance claims based on intentional and negligent conduct under advisement and permitted those claims to go to the jury. The trial court granted NL Industries' motion as to the City's claims based on abnormally dangerous activity and reckless conduct. The trial court denied...