Godoy ex rel. Gramling v. E.I. Du Pont De Nemours & Co.

Citation2009 WI 78,768 N.W.2d 674
Decision Date14 July 2009
Docket NumberNo. 2006AP2670.,2006AP2670.
PartiesRuben Baez GODOY, a minor, By his guardian ad litem, Susan M. GRAMLING, Plaintiff-Appellant-Petitioner, v. E.I. DU PONT DE NEMOURS AND COMPANY, The Sherwin-Williams Company, American Cyanamid Company, Armstrong Containers, Defendants-Respondents, Walter Stankowski, Wayne Stankowski and Wisconsin Electric Power Company, Defendants, Acuity, Intervenor-Defendant.
CourtUnited States State Supreme Court of Wisconsin

Fuhr, R. Trent Taylor, and McGuire Woods LLP, Richmond, Va.; Timothy A. Bascom and Bascom, Budish, & Ceman, S.C., Wauwatosa; Robert P. Alpert, Jeffrey K. Douglass, and Morris, Manning & Martin, LLP, Atlanta, Ga.; Jeffrey K. Spoerk, Christopher G. Meadows, Cheri L. Baden, and Quarles & Brady LLP, Milwaukee; and Robert S. Walker, Laura A. Meaden, Rebekah B. Kcehowski, and Jones Day, Pittsburgh, Pa., and oral argument by Joy C. Fuhr.

For the defendant-respondent American Cyanamid Company, there was a brief by Richard W. Mark, Elyse D. Echtman, and Orrick, Herrington & Sutcliffe, LLP, New York, N.Y.; and Ralph A. Weber, Beth Ertmatinger Hanan, Daniel S. Elger, and Gass Weber Mullins LLC, Milwaukee, and oral argument by Richard W. Mark.

An amicus curiae brief was filed by Stephanie A. Scharf, Sarah R. Marmor, and Schoeman, Updike, Kaufman & Scharf, Chicago, Ill.; and Colleen D. Ball, Wauwatosa, on behalf of The Product Liability Advisory Council.

An amicus curiae brief was filed by R. George Burnett, and Liebmann, Conway, Olejniczak & Jerry SC, Green Bay, on behalf of Miller Brewing Company, S.C. Johnson & Son, Wisconsin Knife Works, Midwest Food Processors Association, and Wisconsin Dairy Business Association.

An amicus curiae brief was filed by James A. Pelish and Thrasher, Pelish, Franti & Smith Ltd., Rice Lake, on behalf of the Civil Trial Counsel of Wisconsin and The Metropolitan Milwaukee Association of Commerce.

An amicus curiae brief was filed by Gregory B. Conway and Liebmann, Conway, Olejniczak & Jerry SC, Green Bay, on behalf of Hydrite Chemical Co.

An amicus curiae brief was filed by Rhonda L. Lanford and Habush Habush & Rottiers S.C., Madison, on behalf of the Wisconsin Association for Justice.


The petitioner, Ruben Baez Godoy, seeks review of a published court of appeals decision affirming the circuit court's order dismissing his defective design claims in strict liability and negligence against manufacturers of white lead carbonate pigment.1 The issue presented here is whether the circuit court correctly concluded that Godoy's complaint failed to state a claim of defective design where (1) the product is white lead carbonate pigment; (2) the alleged design defect is the presence of lead; and (3) the defendant manufacturers were manufacturers of white lead carbonate pigment.

¶ 2 We determine that the circuit court correctly concluded that the complaint failed to state claims of defective design. A claim for defective design cannot be maintained here where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself. Without lead, there can be no white lead carbonate pigment. We therefore conclude that the complaint fails to allege a design feature that makes the design of white lead carbonate pigment defective. Accordingly, albeit with some clarification of the rationale, we affirm the court of appeals.2


¶ 3 This is a review of the circuit court's dismissal of design defect claims. Therefore, all facts and allegations in the complaint are presumed to be true. These facts are primarily taken from Godoy's first amended complaint.3

¶ 4 Ruben Baez Godoy is a minor child who grew up in Milwaukee, Wisconsin. When he was approximately one year old, he lived in an apartment at 1502 West Windlake Avenue. The surfaces of the apartment had been coated with paint containing white lead carbonate pigment.

¶ 5 Beginning in March of 1998 and for the duration of his tenancy, Godoy sustained lead poisoning. The source of the lead poisoning was white lead carbonate pigment derived from painted surfaces, paint chips, paint flakes, and dust containing paint in his apartment.

¶ 6 The defendants in this case include E.I. du Pont de Nemours and Company, Armstrong Containers, the Sherwin-Williams Company, and American Cyanamid (collectively, "manufacturer defendants"). These defendants designed, manufactured, processed, marketed, promoted, supplied, distributed and/or sold white lead carbonate products used as a pigment in paints and coatings for residential use. Godoy alleged that the intended purpose of white lead carbonate pigment was as an ingredient in paint. Godoy is unable to identify the particular manufacturer of the white lead carbonate pigment present in the apartment.

¶ 7 Ingesting white lead carbonate pigment, like other products containing lead, can cause severe and permanent injuries including learning disabilities, decreased intelligence, deficits in neurophsychological functioning, coma, seizure, and death. By the second half of the twentieth century, manufacturers and members of the scientific community acknowledged that lead is hazardous to human health and that children could get lead poisoning through exposure to paint containing lead. Godoy alleges that the manufacturer defendants nonetheless promoted the use of white lead carbonate pigment in residential paints, marketing it as a safe product that fostered health and well-being.

¶ 8 Godoy filed suit alleging, among other things, that white lead carbonate pigment is defectively designed and that the defendant manufacturers are liable under theories of strict liability and negligence. Although three of the manufacturer defendants designed and manufactured paint in addition to white lead carbonate pigment, Godoy filed suit against them in the capacity of white lead carbonate pigment manufacturers, not in the capacity of paint manufacturers.4

¶ 9 The manufacturer defendants responded by filing a motion to dismiss the defective design claims. They argued that Godoy did not identify a legally cognizable design defect in white lead carbonate pigment and that, as a result, his complaint failed to state design defect claims upon which relief could be granted.5 The circuit court dismissed the design defect claims, concluding that "lead is an inherent characteristic of white lead carbonate," and that white lead carbonate pigment cannot be designed without lead.

¶ 10 Godoy was granted permission to file an interlocutory appeal. The court of appeals affirmed the order of the circuit court, determining that a product cannot be said to be defectively designed when that design is inherent in the nature of the product so that an alternative design would make the product something else. See Godoy ex rel. v. E.I. du Pont de Nemours & Co., 2007 WI App 239, ¶¶ 4, 8, 306 Wis.2d 226, 743 N.W.2d 159.

¶ 11 In its analysis, the court noted that Wisconsin has neither accepted nor rejected the Restatement (Third) of Torts: Product Liability. Id., ¶ 8. Nonetheless, the opinion stated that the Restatement (Third) could "illumine" its inquiry. Id. The court quoted the definition of design defect from the Restatement (Third), and then applied the facts to that definition. Id. Unlike Wisconsin law, the Restatement (Third) requires proof of a reasonable alternative design in design defect cases. Id. Noting that "there is no `alternative design' to make white-lead carbonate without using lead," the court concluded that the Restatement (Third) "does not sanction imposing liability on the defendants." Id.


¶ 12 Whether a complaint states a claim upon which relief can be granted is a question of law, which we review independently of the determinations rendered by the circuit court and the court of appeals. John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶ 12, 303 Wis.2d 34, 734 N.W.2d 827. A motion to dismiss tests the legal sufficiency of the claim. Id. We accept as true both the facts in the complaint and the reasonable inferences that may be drawn from such facts. Id.

¶ 13 We construe the allegations liberally in favor of stating a cause of action. Id. However, legal inferences and unreasonable inferences need not be accepted as true. Id.; Morgan v. Pa. Gen. Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660 (1979). A claim will not be dismissed as legally insufficient unless it appears certain that the plaintiff cannot recover under any circumstances. John Doe 1, 303 Wis.2d 34, ¶ 12, 734 N.W.2d 827.


¶ 14 In order to provide context to our analysis and focus to our inquiry, we initially embark on two threshold areas: (a) an overview of the development of our strict liability jurisprudence; and (b) a determination of the product at issue in this case.


¶ 15 Products liability law involves complex and continually evolving concepts regarding a manufacturer's responsibility for providing safe consumer products.6 Less than a century ago, products liability jurisprudence was firmly rooted in contract law, which frustrated recovery for many injured consumers. See generally David G. Owen, The Evolution of Products Liability Law, 26 Rev. Litig. 955 (2007). Manufacturers of defective products could claim lack of "privity of contract" as a near-absolute defense to liability. Id. at 961-64. By mid-century, courts began to respond to "ever-growing pressure for protection of the...

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