Burton v. American Cyanamid Co et al

Filing 1057

ORDER signed by Judge Lynn Adelman on 6/4/18 denying 653 Motion for Summary Judgment. (cc: all counsel) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GLENN BURTON, JR.,
Plaintiff,
v.

Case No. 07-CV-0303

AMERICAN CYANAMID et al.,
Defendants;
RAVON OWENS,
Plaintiff,
v.

Case No. 07-CV-0441

AMERICAN CYANAMID et al.,
Defendants;
CESAR SIFUENTES,
Plaintiff,
v.

Case No. 10-CV-0075

AMERICAN CYANAMID et al.,
Defendants.

DECISION AND ORDER
Plaintiffs bring these negligence and failure to warn actions against various lead
paint and pigment manufacturers alleging they were harmed by ingesting lead paint as
children. Plaintiffs proceed under the risk-contribution theory of liability, which the
Wisconsin Supreme Court extended to plaintiffs alleging injury from White Lead
Carbonate (WLC) in Thomas ex rel. Gramling v. Mallet, 285 Wis. 2d 236 (2005).
Defendant Sherwin Williams now moves for summary judgment on grounds that
plaintiffs’ use of the risk contribution theory is barred by a Wisconsin statute.

I.

BACKGROUND

In 2011, the Wisconsin legislature enacted Wis. Stat. § 895.046 which proscribed
the use of risk contribution theory in cases involving WLC and many other consumer
products. In 2013, the Wisconsin legislature amended the statute to apply in cases
already pending at the time of the amendment as well as those yet to be filed.
Subsequently, in Gibson v. American Cyanamid Co., 760 F.3d 600 (7th Cir. 2014), the
United States Court of Appeals for the Seventh Circuit held that the Wisconsin
Constitution’s due process guarantee prohibits application of § 895.046 to extinguish
risk contribution theory in already-pending WLC cases. Id. at 608-610. The Wisconsin
Supreme Court, which is the ultimate arbiter of state constitutional questions, has not
yet ruled on the constitutionality of the amended statute.1 Sherwin Williams now argues
that, in light of certain post-Gibson decisions of the Wisconsin Supreme Court and the
United States Supreme Court, I should depart from Seventh Circuit precedent and treat
§ 895.046 as constitutionally applicable in the present case, thus foreclosing the
plaintiffs’ use of risk contribution theory.
II.

DISCUSSION

When the Seventh Circuit decides a question of state law, I am bound to follow
that precedent until the state’s highest court resolves the state law question. Reiser v.
Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004). As the circuit court
explained in Reiser, a federal court’s interpretation of state law “represents an educated
guess about how the supreme court of [the state] will rule. Instead of guessing over and
over, it is best to stick with one assessment until the state’s supreme court, which alone
1

Shortly after Gibson was decided, the Wisconsin Supreme Court agreed to review the constitutionality of
§895.046, but split 3-3 and did not issue a decision. Clark ex rel. Gramling v. American Cyanamid Co., 367 Wis.2d
540 (2016).

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can end the guessing game, does so.” Id. The case law discussed in the defendant’s
brief suggests that the constitutionality of §895.046 as applied to already-pending WLC
raises remains a disputed issue. But the defendant’s case law is not sufficient to justify
my supplanting the Seventh Circuit’s interpretation of Wisconsin law with my own.
In deciding Gibson, the Seventh Circuit applied the Wisconsin Supreme Court’s
two-part Matthies test for the state due-process constitutionality of retroactively applied
legislation. Gibson, 760 F.3d at 609, citing Matthies v. Positive Safety Mfg. Co., 244
Wis.2d 720, 737-38, 744 (2001). First, the Gibson court considered whether retroactive
application of § 895.046 to extinguish the plaintiff’s use of risk contribution theory would
deprive him of a “vested right.” Gibson, 760 F.3d at 609. Citing Wisconsin law that
recognizes a plaintiff’s interest in an existing right of action which has accrued under the
rules of the common law as a protected vested interest, the court answered this
question in the affirmative. Id., citing Matthies, 244 Wis.2d at 739. Second, the court
considered whether retroactive application of the statute had a rational basis, as
discerned by “balancing the public interest served by retroactive application against the
private interest impacted by the statute.” Gibson, 760 F.3d at 609, (quoting Matthies,
244 Wis.2d at 744). Noting that Wisconsin case law grants the retroactively applied
statute a presumption of constitutionality, the court nevertheless found that the plaintiff’s
interest in the opportunity to recover for his injuries outweighed the public interest in
“permitting businesses to operate in Wisconsin without fear of products liability litigation
in the indefinite future based on risk contribution theory.” Gibson, 760 F. 3d at 609-610.
Sherwin Williams argues that the Wisconsin Supreme Court’s discussion of
retroactivity in Lands End, Inc. v. City of Dodgeville, 370 Wis.2d 500 (2016) reveals

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error in the Seventh Circuit’s reasoning in Gibson. Sherwin Williams contends, first, that
under Lands End, a right cannot vest until disputed issues of law and fact are finally
resolved, and that a plaintiff’s right to rely on risk-contribution theory in an already
pending case is therefore not a vested right because certain issues regarding the
validity and applicability of risk-contribution theory have not yet been resolved in the
courts. This argument is not sufficient to compel my departure from Seventh Circuit
precedent. After all, in Lands End, the Wisconsin Supreme Court reiterates the principle
from Matthies that “an existing right of action which has accrued under the rules of the
common law or in accordance with its principles is a vested property right”—which is the
authority upon which the Gibson court determined that the plaintiff’s right to his riskcontribution claim was vested. Lands End, 370 Wis.2d at 529 (quoting Matthies, 244
Wis.2d at 739 ¶ 22); c.f. Gibson, 760 F.3d at 609.
Sherwin Williams also argues that, under Lands End, the Gibson court incorrectly
analyzed the rational basis prong of the Wisconsin due process test for retroactive
legislation. As the defendant would have it, Lands End limits the court’s role to
determining only whether the legislation had a rational purpose, and eliminates the
balancing of public and private interests that informed the Seventh Circuit’s decision in
Gibson. Case No. 07-CV-0303, ECF No. 654, at 19. This is a mischaracterization of
Lands End. The majority opinion does not call for elimination of the balancing portion of
the due process test; rather, it clarifies that “rational legislative purpose” is the standard
for determining the scope of the public interest to be balanced against the private rights
impacted by retroactive legislation. Lands End, 370 Wis. 2d at 516, n.14. Lands End

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therefore does not undermine the methodology employed in Gibson, and Gibson’s
precedential authority remains secure.
Finally, Sherwin Williams argues that the United States Supreme Court’s
decision in Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016), a federal separation of
powers case, undercuts Gibson’s rationale for declaring the application of §895.046 in
pending WLC cases unconstitutional. Defendant characterizes Bank Markazi as
standing for the principle that unfairness to a plaintiff is not a sufficient reason for a court
to strike down a law that the legislature made applicable to pending cases, and argues
that I ought to find Gibson’s fairness-based analysis invalid for this reason. But Gibson
decided a state, not a federal, due process question, and it is for the Wisconsin
Supreme Court to decide the extent to which the US Supreme Court’s reasoning
informs Wisconsin constitutional law. I may not depart from Seventh Circuit precedent
on these grounds.
III.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that defendant Sherwin Williams’
Motions for Summary Judgment Pursuant to Wis. Stat. § 895.046 (No. 07-cv-0303, ECF
No. 653; No. 10-CV-0075, ECF No. 516; No. 07-CV-0441, ECF No. 582) are DENIED.
Dated at Milwaukee, Wisconsin, this 4th day of June, 2018.

s/Lynn Adelman_______________
LYNN ADELMAN
District Judge

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