Burton v. American Cyanamid Co et al

Filing 1059

DECISION AND ORDER signed by Judge Lynn Adelman on 7/13/18 denying 640 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 claims against various
manufacturers of white lead carbonate pigment (WLC), alleging that they were harmed
by ingesting paint containing WLC when they were children. Each plaintiff further
alleges that he or she is unable to identify the manufacturer of the WLC that harmed
him or her; in consequence, plaintiffs’ substantive claims rely on Wisconsin’s risk
contribution theory of liability which relaxes the traditional causation standard and
requires a plaintiff to prove only that defendants “contributed to the risk of injury to the

public, and, consequently, . . . to the individual plaintiffs.” Thomas ex rel. Gramling v.
Mallett, 285 Wis. 2d 236, 289 (Wis. 2005).
The Wisconsin Supreme Court crafted the risk contribution method of recovery in
Collins v. Eli Lilly Co., 116 Wis.2d 166 (Wis. 1984), a case in which the plaintiff had
been harmed by in utero exposure to the drug diethylstilbestrol (DES) and was unable
to identify the specific manufacturer of the DES that harmed her because of the number
of manufacturers, the lack of pertinent records, and the passage of time. The Collins
court noted that the same method of recovery “could apply in situations that are
factually similar to DES cases.” Id. at 191. In Thomas, reviewing a grant of summary
judgment to defendants and thus construing the record in favor of the plaintiffs, the
Wisconsin Supreme Court determined that the WLC situation was analogous to the
DES situation for reasons including the balance of equities, public policy, and the
fungibility of the product at issue, and thus allowed the plaintiff in that case to pursue his
claim on a risk contribution theory. 285 Wis.2d at 307-16. Because the defendants in
Thomas agreed that the plaintiff was unable to identify the specific manufacturer of the
WLC that harmed him, the court did not consider whether in fact the plaintiff was unable
to make such an identification. Id. at 252.
Defendant Sherwin-Williams now argues that the plaintiffs in the instant cases
are not entitled to proceed on the basis of risk contribution because risk contribution
becomes available only when a plaintiff produces admissible evidence showing that
“insurmountable obstacles” foreclose her ability to identify the manufacturer of the
product that caused her harm. Sherwin-Williams argues that the plaintiffs have not met
that threshold burden because they have not produced evidence that they tried but were

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unable to identify the manufacturer of the WLC that harmed them. Sherwin Williams
further argues that certain scientific tests can potentially identify the manufacturer of the
WLC in paint chips taken from plaintiffs’ residences, or at least narrow the pool of
potential manufacturers, and that plaintiffs should have availed themselves of these
tests before proceeding on a risk contribution theory. I am not persuaded that the law of
risk contribution imposes such a threshold burden on WLC plaintiffs.
To begin, the Wisconsin Court of Appeals cases that Sherwin-Williams cites as
indicative of the existence of such a requirement are inapposite: at issue in both was the
extension of risk contribution theory to new categories of consumer products claims,
which is in contrast to the present case which applies risk contribution theory to a
product for which the theory’s applicability has already been established by the state
supreme court. Rogers v. AAA Wire Products, Inc., 182 Wis.2d 263 (Wis. 1994) (wire
bread carts); Drezdzon v. AAA Ins. Co. et al., 121 Wis.2d 697 (Wis.App. 1984) (metal
tote boxes). Thus the courts’ grant of summary judgment to the defendants in these
cases cannot be taken as indicating that the “insurmountable obstacle” is a required
showing case-by-case even after precedent has established that risk contribution
extends to the type of product at issue. It would be more compelling if Sherwin Williams
had provided examples of courts granting summary judgment for defendants on postCollins DES claims on grounds that the plaintiffs had failed to produce evidence that
identifying the manufacturer of the DES in their particular case presented an
insurmountable obstacle. In addition, the cases cited by Sherwin Williams differed from
Collins and Thomas on a host of factual grounds: they involved a limited number of
defendants, there was no possibility that more than one defendant had actually caused

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the plaintiffs’ injuries, and the injuries involved were isolated incidents unlikely to be
replicated and not indicative of any broader public health or policy concern. See Laura
Worley, The Iceberg Emerged: Wisconsin’s Extension of Risk Contribution Theory
Beyond DES, 90 Marq. L. Rev. 383, 392-95 (2006)
Further, the court’s recognition in Collins that the plaintiff faced “insurmountable
obstacles” in identifying the manufacturer that harmed her does not amount to a
requirement that, as Sherwin Williams would have it, identification of the manufacturer
be ‘”impossible” for the plaintiff.1 To impose such a requirement would be inconsistent
with the risk-contrubution method’s burden shifting mechanism as outlined in Collins. In
Collins, the court stated that a DES risk-contribution plaintiff need not allege any facts
related to time or geographic location in which a given manufacturer defendant
marketed DES, 116 Wis.2s at 193, but that once the plaintiff had made out a prima facie
case, the defendant might exculpate itself by proving by a preponderance of the
evidence that it did not produce or market DES in the time period or in the geographical
market where the plaintiff’s mother acquired DES. Id. at 197-198. The court explained,
We conclude that it is appropriate to shift the burden of proof
on time and geographic distribution to the defendant drug
companies because they will have better access to relevant
records than the plaintiff. Further, if relevant records do not
exist, we believe that the equities of DES cases favor placing
the consequences on defendants.
Id. at 198. Given this allocation of burdens, it would be illogical and repetitious for a
court to impose a requirement that DES plaintiffs show they had tried and were unable
to identify (or eliminate) the manufacturers that sold DES in the relevant time and

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The defendants in Thomas did not contest plaintiff’s ability to identify the manufacturer
of the WLC that caused his harm, so the court did not address the issue.
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geographical market as a prerequisite to proceeding on the risk contribution theory. And
the court’s recognition of the possibility of exculpation (or “narrowing the pool”) on the
basis of time and geography did not negate the premise that the plaintiff faced
“insurmountable obstacles” in identifying the manufacturer of the DES that harmed her.
For similar reasons, it would be illogical and repetitious to require WLC plaintiffs
to perform the kind of testing Sherwin Williams describes as a prerequisite to
proceeding on risk contribution theory. As Collins did for DES defendants, Thomas
grants WLC defendants the opportunity to exculpate themselves on the basis of time
and geography; Thomas further notes that, unlike DES defendants, WLC defendants
also have “ample grounds to attack and eviscerate [plaintiff’s] prima facie case, with
some of those grounds including that lead poisoning could stem from any number of
sources (since lead itself is ubiquitous) and that it is difficult to know whether [plaintiff’s]
injuries stem from lead poisoning since they are not signature injuries.” Thomas, 265
Wis.2d at 321. Such “grounds” might also include evidence of chemical dissimilarities
between WLC or paint found in a plaintiff’s home and a defendant’s known product. I
am prepared to recognize such a defense, after the plaintiff has made out a prima facie
case. But the same equitable and policy considerations that support the court’s
allocation of the burden of proof on time- and geography-based exculpation to
defendants in Collins supports allocation of the burden on chemical-identity-based
exculpation to defendants here. As in Collins the defendants are more likely to have
access to the relevant records (like formula cards or samples of WLC or paint products
against which to compare the samples harvested from plaintiffs’ homes). And, as in
Collins, if relevant records do not exist, the equities favor placing the consequences on

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defendants. (How long and hard would a plaintiff have to look for such non-existent
records before she could establish that finding them presented an “insurmountable
obstacle”?)
As the Wisconsin Supreme Court established in Thomas and Collins, the
basis for liability in risk contribution cases is a showing that the defendant manufacturer
“reasonably could have contributed in some way to the actual injury.” Collins, 116
Wis.2d at 191 n. 10; Thomas, 285 Wis.2d at 322. To achieve this result, the court
crafted a process in which plaintiffs establish a prima facie case on the basis of a
manufacturer’s contribution to the risk to the public by manufacturing a defective
product, and defendants may then exculpate themselves by establishing that their
product could not in fact have caused the plaintiff’s injury. See Collins, 116 Wis.2d at
317. Requiring plaintiffs to demonstrate that they have tried and failed to identify the
manufacturer that harmed them will improve neither the integrity nor the outcome of this
process, and the equities identified by the Wisconsin courts disfavor such a
requirement. I will not foreclose plaintiffs’ use of risk contribution theory on these
grounds.
For the foregoing reasons, IT IS ORDERED that Defendant The Sherwin William
Company’s Motions for Summary Judgment Because Plaintiffs Have Not Demonstrated
A Prerequisite Needed for the Risk-Contribution Theory to Apply (No. 07-CV-0303, ECF
# 640; No. 07-CV-0441, ECF # 658; No. 10-CV-0075, ECF # 487) are DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of July, 2018.
s/Lynn Adelman_____
LYNN ADELMAN
District Judge

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