Burton v. American Cyanamid Co et al

Filing 1775

ORDER signed by Judge Lynn Adelman on 2/27/20 that Sherwin-Williams' motions for judgment as a matter of law 1731 , 1734 are DENIED. (cc: all counsel) (jad)

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

Case No. 07-CV-0303

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

Case No. 07-CV-0441

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

Case No. 10-CV-0075

AMERICAN CYANAMID CO, et al.,
Defendants.
DECISION AND ORDER
Glenn Burton, Ravon Owens, and Cesar Sifuentes brought negligence and strict
liability claims against six former manufacturers of white lead carbonate pigment (WLC).
The plaintiffs alleged that they suffered injuries when, as young children, they ingested
WLC that had been applied to the walls of their homes as a component of paint. Because
they could not identify the manufacturers of the specific WLC that harmed them, the
plaintiffs proceeded under the risk contribution theory of liability, which was extended to
WLC cases by the Wisconsin Supreme Court in Thomas ex rel. Gramling v Mallett, 285
Wis.2d 236 (2005).
I consolidated the three cases for trial. At the close of trial, the jury returned verdicts
in favor of each of the plaintiffs and against three of the named defendants: Sherwin1

Williams, DuPont, and Armstrong Containers. The jury awarded each plaintiff two million
dollars in damages, and the three liable defendants agreed to allocate this sum among
themselves rather than litigate allocation in a second phase of trial.
Sherwin-Williams has filed two motions for judgment as a matter of law pursuant
to Fed. R. Civ. P. 50. It argues that judgment as a matter of law is proper because the
evidence at trial did not provide the jury with a legally sufficient basis for its verdicts
against Sherwin-Williams. For the reasons discussed below, I will deny both motions.
I.

BACKGROUND FACTS

Because I discuss the facts in detail in the course of my analysis, in this section I
will present only those facts necessary to give context to the analysis.
WLC is a fine white powder that was historically used as a pigment in paint. During
the first half of the twentieth century, Sherwin-Williams sold WLC in three forms for use
in residential paint: as raw powder; as a paste called “white lead in oil” (WLO) made by
mixing WLC with linseed oil; and as a component of ready-mixed paint. The first two
forms—raw WLC powder and WLO—were commonly sold to tradesmen called “master
painters” who would mix the WLC or WLO with other ingredients according to their own
proprietary formulas to make paint, which they would then apply to their customers’
homes. Ready-mixed paints were sold both to master painters and directly to consumers.
Sherwin Williams manufactured WLC between 1910 and 1947. Tr. 5075. It sold white
lead in oil between 1910 and 1969. It sold ready-mix paints that contained WLC between
1890 and 1969. Tr. 4955.
Over the course of the twentieth century, the medical community came to
understand that the residential use of paint containing lead was associated with childhood
2

lead exposure. The date when American medical experts first understood and publicized
the risk of lead paint to children—particularly the risk that the paint might deteriorate and
be ingested in the form of dust—was at issue in this trial; plaintiffs’ position is that the risk
was known as early as the nineteen-teens or before. In 1955, Sherwin-Williams began
including warning labels on products that contained lead stating: “Contains lead or other
compounds. Harmful if eaten. Do not apply on toys, furniture or interior surfaces which
might be chewed by children.” Tr. 5055-56. Federal regulations limited and then banned
the use of lead pigment in residential paint beginning in the 1970s.
The medical community’s understanding of the risks associated with even lowlevel exposures to lead has also evolved over time. In the early twentieth century, lead
poisoning was recognized by severe symptoms including seizure and coma. As blood
testing techniques became more refined, doctors began recognizing effects of lead and
recommending treatment at lower levels of exposure. Relatedly, the blood lead level
(BLL) identified in Wisconsin law as constituting “lead poisoning” has moved steadily
downward since the mid-twentieth century. Wisconsin law now defines lead poisoning as
a blood lead level of 5 µg/dL (micrograms of lead per deciliter of blood).
Each of the three plaintiffs was diagnosed with elevated BLLs as a young child.
Plaintiff Glenn Burton’s was diagnosed when he was around two years old; his highest
recorded BLL was 31 µg/dL. Plaintiff Caesar Sifuentes was diagnosed when he was
around two years old; his highest recorded BLL was 48 µg/dL. Ravon Owens was
diagnosed as a toddler; his peak recorded BLL was 53 µg/dL, and his levels remained
elevated for many years. At the time their elevated BLLs were diagnosed, both Mr.
Sifuentes and Mr. Owens received chelation therapy, an inpatient medical procedure that

3

clears lead from the blood. Paint containing WLC was found in each of the three plaintiffs’
homes, and each plaintiff claims that the WLC pigment was the primary cause of his lead
exposure. Each also claims that he suffered neurological impairment resulting from the
lead exposure.

II.

STANDARD

I may enter judgment against a party who has been fully heard on an issue in a
jury trial if “there is no legally sufficient evidentiary basis for a reasonable jury to find for
the party on that issue.” Fed. R. Civ. P. 50(a); Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 149-51 (2000). “Judgment as a matter of law is proper only if a reasonable
person could not find that the evidence supports a decision for a party on each essential
element of the case, viewing the evidence in the light most favorable to the
nonmovant” and making all reasonable inferences permitted by the evidence. Campbell
v. Peters, 256 F.3d 695, 699 (7th Cir. 2001) (citations omitted); Susan Wakeen Doll Co.,
Inc. v. Ashton Drake Galleries, 272 F.3d 441, 449 (7th Cir. 2001). In rendering this
decision, I may not weigh the evidence or make credibility determinations. Martinez v.
City of Chicago, 900 F.3d 838, 844 (7th Cir. 2018). Although I am to review the entire
record, I “must disregard all evidence favorable to the moving party that the jury [was] not
required to believe.” Reeves, 530 U.S. at 150-51.

III.

DISCUSSION

Sherwin-Williams makes several arguments in support of its motions for judgment
as a matter of law: (1) there was insufficient evidence that Sherwin-Williams breached its

4

duty of ordinary care; (2) due process shields Sherwin-Williams from plaintiffs’ strict
liability claims; (3) there was insufficient evidence that Sherwin-Williams’ WLC was
defective; (4) there was insufficient evidence that Sherwin-Williams’ WLC reached the
consumer without substantial change; (5) the “sophisticated user” doctrine shielded
Sherwin-Williams from liability; (6) there was insufficient evidence that plaintiffs had
suffered an injury as a result of their lead exposure; (7) there was insufficient evidence
that Sherwin-Williams’ products or conduct were cause-in-fact of plaintiffs’ lead exposure;
and (8) there was insufficient evidence to support the jury’s award of $2 million in
damages to each plaintiff. I will address these arguments in turn.
A. Negligence
Sherwin Williams argues that plaintiffs did not present evidence sufficient to
support a legally cognizable theory of negligence. It argues that Wisconsin law does not
recognize a claim of negligence based only on manufacture and sale of a product known
to be dangerous, and that the plaintiffs’ claim that the defendants should not have made
or sold WLC for use in paint amounts to a claim of negligent product design which was
foreclosed by the Wisconsin Supreme Court in Godoy ex rel. Gramling v. E.I duPont de
Nemours and Co., 319 Wis.2d 91, 110-115 (2009). Sherwin-Williams is wrong on both
points.
Under Thomas, a plaintiff seeking to recover on a negligence claim must show that
the defendant’s conduct breached a legally recognized duty of care that it owed to the
plaintiff. Under Wisconsin law, “everyone owes to the world at large the duty of refraining
from those acts that may unreasonably threaten the safety of others.” Brenner v.
Amerisure Mutual Insurance Company, 374 Wis.2d 578, 588 (2017) (quoting Behrendt v.

5

Gulf Underwriters Ins. Co., 318 Wis.2d 622, 635 (2009). “What is within the duty of
ordinary care depends on the circumstances under which the claimed duty arises.” Id.
(quoting Hoida, Inc. v. M&I Midstate Bank, 291 Wis.2d 283, 307 (2006)).
Manufacturers are subject to the duty of ordinary care. The Wisconsin pattern jury
instructions illustrate this point:
The duty of a manufacturer or supplier of a product is to
exercise ordinary care to insure that the product will not create
an unreasonable risk of injury or damage to the user or owner
when used in its intended or foreseeable manner. This duty
must be “approached from the standpoint of the standard of
care to be exercised by the reasonably prudent person in the
shoes of the defendant manufacturer or supplier.” A
manufacturer, among other requirements, is required to
exercise ordinary care in the manufacture of its product in the
following respects: (1) safe design of the product so that it will
be fit for its intended or foreseeable purpose; (2) construction
of the product so that the materials and workmanship
furnished will render the product safe for its intended or
foreseeable use; (3) adequate inspections and tests to
determine the extent of defects both as to materials and
workmanship; (4) adequate warnings of danger in the use of
the product and adequate instructions as to the proper use of
the product which is dangerous when used as intended.
WIS JI-CIVIL 3200—Products Liability: Law Note For Trial Judges (emphasis supplied;
citation omitted). As the emphasized language makes clear, the four enumerated duties
in the jury instruction do not represent the entire range of obligations imposed on a
manufacturer under the general rubric of ordinary care. If the unreasonable risk of injury
associated with a product cannot be adequately addressed through improved design,
construction, inspections or warnings, the manufacturer remains under an obligation to
take other, reasonable actions to ensure that the product does not cause unreasonable
harm. “The duty of ordinary care under the circumstances is determined by what would

6

be reasonable given the facts and circumstances of the particular claim at hand.” Hoida,
291 Wis.2d at 308.
In the present case, the defendants owed a duty to exercise ordinary care in
manufacturing and marketing WLC. The plaintiffs claim that it was foreseeable to the
defendants that WLC incorporated into paint and applied to the walls of homes might be
ingested by children and cause injury. At trial plaintiffs presented voluminous evidence
that WLC manufacturers were or should have been aware of the risks to children
associated with the use of WLC in paint, beginning in the early 20th century. Some
representative examples of this evidence follow:
•

Between 1904 and 1909, articles were published in the Australian medical
literature documenting cases of children suffering seizures, comas, and
death after ingesting flakes of lead paint from the verandas of their families’
homes, and dust from lead paint on the interior walls of the homes. Tr. 858863.

•

In 1914, a Washington researcher delivered an address to an association
of master house painters warning that gradual disintegration of paint made
of WLC and turpentine would “result in the formation of dried particles of
white lead dust,” and that “[t]he presence of such dust in the atmosphere of
a room is very dangerous to the health of the inmates.” Tr. 899-900.

•

In 1917, an article published in an American medical journal discussed the
Australian findings and also described American children suffering seizures
and comas after chewing lead paint from woodwork in their homes. Tr. 902904.

7

•

In 1943, an article in the American Journal of Diseases of Children reported
that children who had survived acute lead poisoning exhibited decreased
cognitive function. Tr. 932-936.

•

In 1972, Congress passed legislation limiting the allowable percentage of
lead in paint for residential use. In 1978, the federal government banned
consumer uses of lead-containing paint. Tr. 1208.

The jury’s negligence verdict indicates its conclusion that the risk to children associated
with WLC in paint was foreseeable to Sherwin-Williams, such that Sherwin-Williams was
obligated to exercise reasonable care under the circumstances to ensure that its product
would not cause such injury. The question for the court is what sorts of conduct the duty
of ordinary care required.
Rulings by this and other courts established that certain sorts of conduct were not
required under the duty of ordinary care to which the defendants were subject. For
example, I previously held that the defendants’ duty of ordinary care did not obligate them
to provide direct warnings to the plaintiffs or their families, because the risk of childhood
lead exposure from paint was widely known at the time of the plaintiffs’ exposure. No. 07CV-0303, ECF # 1070 at 14-15. Id. Similarly, the Wisconsin Supreme Court in Godoy
held that the defendants’ duty of ordinary care did not obligate them to redesign WLC so
as to not contain lead, because that would be impossible. Godoy v. E.I duPont de
Nemours and Co., 319 Wis.2d 91, 115 (2009).

But that circumstances made it

unreasonable to expect those specified sorts of conduct from the defendants does not
absolve the defendants of their duty of ordinary care. Where a manufactured product
(e.g., WLC) carries a foreseeable risk of harm (being ingested by children and poisoning

8

them) when used for one purpose (residential paint) but not when used for other purposes
(industrial paint, plastics, etc), and where the risk associated with that use is rooted in an
inherent characteristic of the product (containing lead) that can’t be remediated by
redesigning the product or improving the manufacturing process, the duty of ordinary care
may obligate manufacturers and marketers of that product to act reasonably to ensure
that the product not be used for the purpose that carries the risk of harm. 1
Judge Learned Hand’s famous formula, B<PL (where B is the burden of
precautions, L is the loss if there is an accident that the precautions might have prevented,
and P is the probability of an accident if the precautions are not taken), provides a useful
tool for clarifying the requirements of “reasonableness under the circumstances.” United
States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947); Villanova v. Abrams, 972
F.2d 792, 796 (7th Cir. 1992). Based on this formula, legally sufficient evidence to support
the jury’s finding of negligence would mean evidence from which the jury could
reasonably conclude that the burden on Sherwin-Williams of ceasing to manufacture and
market WLC for use in residential paint was outweighed by the likelihood that children
might ingest it if used in residential paint and the severity of the injury such ingestion might
cause. This conclusion must be based on information available to Sherwin Williams at the
time it was manufacturing and/or marketing WLC, which evidence indicates was between
1910 and 1969.
Regarding the burden on Sherwin Williams of ceasing to manufacture WLC for use
in household paint, the jury heard evidence that there were many uses for WLC and WLO

1

Obviously, the factual premises on which this claim rests must be proven, and a jury
must weigh the severity of the foreseen harm against the cost to the
manufacturer/marketer of the various means of limiting the product’s use.
9

other than residential paint. For example, WLC was used in industrial paints, automotive
paints, and on ships, bridges, railways and military equipment. ECF # 1732 at 13. From
this, the jury could conclude that Sherwin-Williams would still have had a market for the
WLC it manufactured even if it had stopped making WLC for use in residential paint.
Regarding the burden on Sherwin-Williams of ceasing to market WLC in residential paint,
the jury heard evidence that Sherwin-Williams had many lead-free residential paint
formulas available and only sold residential paint that contained WLC because it wanted
to reach additional customers. From this, the jury could conclude that though SherwinWilliams might not have reached those customers if it had not sold residential paint
containing WLC, it would still have had a wide product line of lead-free residential paints.
Regarding the likelihood and severity of injury: the jury heard evidence that,
between 1904 and 1909, articles were published in the Australian medical literature
documenting cases of children suffering seizures, comas, and death after ingesting flakes
of lead paint from the verandas of their families’ homes, and dust from lead paint on the
interior walls of the homes. The jury also heard that, by 1916, articles had been published
in American medical journals discussing the Australian findings, and that by the mid1920s, articles had been published in the American medical literature referencing children
suffering seizures and comas after chewing lead paint from woodwork in their homes. At
trial, Sherwin-Williams tried to limit the impact of this evidence by presenting many
arguments that were implicitly addressed to the probability (“P”) component of the B<PL
calculus. Sherwin-Williams argued that the Australian climate caused the paint to
deteriorate in a way that increased the likelihood of ingestion by children, and that
because the climate in the United States was less severe, it was reasonable for Sherwin-

10

Williams to believe that its paint was less likely than the Australian paint to deteriorate in
a way that would lead to ingestion by children. Sherwin-Williams also argued that it was
reasonable to expect that parents and caregivers would prevent children from gnawing
on woodwork, making exposure by that mechanism rare.
However, these arguments do not reach the loss (“L”) component of B<PL. Again,
the medical articles described children suffering catastrophic consequences from
exposure to lead paint: seizures, comas, and death. Though the probability of children
ingesting WLC from residential paint that was foreseeable to Sherwin-Williams based on
the medical knowledge of the 1910s may have been low, the severity of the injury that
could foreseeably result from such ingestion was very high. Weighed against the limited
burden to Sherwin-Williams of ceasing to manufacture and market WLC for use in
residential paint, the extreme severity of the foreseeable injury was sufficient to support
the jury’s finding that Sherwin-Williams failed to act reasonably when it continued
manufacturing and marketing WLC for residential use after the American medical
community began discussing the Australian case studies.
Sherwin-Williams also argues that to allow a claim of negligence based on
manufacture of a product known to be dangerous would be an expansion of state law
improper for a federal court. The argument is a non-starter: as the Learned Hand analysis
just demonstrated, the claim that Sherwin-Williams breached its duty of ordinary care by
making and selling WLC when it was foreseeable that the WLC would cause harm to
children is of a piece with the negligence canon. The duty and breach involved can be
articulated using traditional negligence principles; there’s no need to develop new legal
standards. By contrast, in Insolia v. Philip Morris, Inc., 216 F.3d 596 (2000)(“Insolia I”),

11

the Seventh Circuit declined to recognize a novel tort claim of “intentional exposure to a
hazardous substance,” reasoning that the claim could not be cleanly analogized to
battery, nuisance, or other familiar clams and determining that the state court was the
proper forum to test and define the parameters of such a novel claim. Id. at 607. Had the
Seventh Circuit allowed the “intentional exposure” claim to proceed, it would have needed
to “invent” the elements of the claim and the legal standards associated with those
elements. Id. Not so, here; negligence is a well-known quantity.
Sherwin-Williams cites to a non-binding Western District of Wisconsin decision in
support of its argument that a claim of negligence based on manufacture and sale of a
foreseeably dangerous product represents an expansion of Wisconsin law. Insolia v.
Phillip Morris, Inc., 128 F.Supp.2d 1220, 1223 (W.D.Wis. 2000)(“Insolia II”). As I’ve just
explained, the logic of this argument is singularly unpersuasive. Further, Insolia II can be
distinguished from the present cases in a key way. In Insolia II, the court had ruled as a
matter of law that the product at issue—cigarettes—was not unreasonably dangerous as
would be necessary to give rise to strict product liability because the consuming public
was aware of the dangers associated with cigarette smoking. 128 F.Supp.2d at 1222. The
court thought it implausible that a defendant could be liable for unreasonably making and
selling a product where the product itself was not unreasonably dangerous and defective.
Id. at 1223. Here, however, the product is unreasonably dangerous and defective; the
jury’s finding for plaintiffs on their strict liability claims indicates as much. 2 Unlike Insolia
II, in the present case there is no logical tension between the unreasonableness of
Sherwin-Williams’ conduct and the unreasonable dangerousness of its product.

2

See my discussion of the product defect issue at § III.C., infra.
12

In sum, plaintiffs presented a legally cognizable theory of negligence with respect
to Sherwin Williams, and the jury heard evidence sufficient to support a finding of
negligence on that theory.
Sherwin-Williams also makes various arguments addressed to a “negligent
promotion” claim. Plaintiffs have made clear that the conduct for which they seek to hold
Sherwin-Williams liable is the making and selling of WLC, not the advertising or promotion
of it. Thus, I need not address these arguments.
B. Due Process
Sherwin-Williams also moves for judgment as a matter of law on the plaintiffs’ strict
liability claims. It argues, first, that to hold Sherwin-Williams strictly liable would violate its
due process rights, because Wisconsin courts had not yet recognized the strict liability
standard and the related concept of foreseeable misuse at the time Sherwin-Williams
manufactured and marketed WLC. See Dippel v. Sciano, 155 N.W.2d 55, 63 (Wis. 1967)
(adopting Restatement (Second) of Torts § 402(a)(1965); Schuh v. Fox River Tractor Co.,
218 N.W.2d 279, 285-87 (Wis. 1974) (recognizing the doctrine of foreseeable misuse).
“There are indeed Due Process limits on the retroactive application of a judicial decision,
but only if the judicial decision ‘is unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue.” Gibson v. American Cyanamid
Co., 760 F.3d 600, 622 (7th Cir. 2014)(quoting Rogers v. Tennessee, 532 U.S 451, 457
(2001)). Sherwin-Williams presents no developed explanation of how the Wisconsin
courts’ adoption of either the strict liability standard or the foreseeable misuse standard
was “unexpected and indefensible” by reference to prior law. Therefore, I will not enter
judgment for Sherwin-Williams on the basis of this argument.
13

C. Product Defect
Sherwin Williams argues that it is entitled to judgment on the plaintiffs’ strict
product liability claims because the plaintiffs did not adduce legally sufficient evidence
that Sherwin-Williams’ WLC was defective. Sherwin Williams argues that to establish that
Sherwin-Williams’ WLC was defective as a result of a failure to warn, the plaintiffs were
obligated to present evidence of what warnings Sherwin-Williams should have given in
order to render the WLC non-defective. 3
At the time that the plaintiffs filed their lawsuits, the common law governing strict
products liability in Wisconsin required plaintiffs to prove the following elements in order
to establish a strict liability claim:
(1) That the product was in defective condition when it left the possession or
control of the seller or manufacturer;

Though it does not explicitly say so, Sherwin-Williams appears to be applying the
Restatement (Third) of Torts’ treatment of the strict product liability claim, which the
Wisconsin Legislature codified in 2011 in Wis. Stat § 895.047. This statute provides that,
for purposes of a strict product liability claim, “[a] product is defective because of
inadequate instructions or warnings only if the foreseeable risks of harm posed by the
product could have been reduced or avoided by the provision of reasonable instructions
or warnings by the manufacturer and the omission of the instructions or warnings renders
the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). This standard focuses on
the manufacturer’s conduct and requires the plaintiff to prove that the manufacturer did
or should have foreseen the risk of harm associated with its product.
It is likely true that, if Wis. Stat. § 895.047 defined the substantive requirements of
the present plaintiffs’ strict liability claims, the plaintiffs would need to present evidence
as to what “reasonable warnings or instructions” Sherwin-Williams might have provided
that would have “reduced or avoided” the foreseeable harms caused by WLC. But §
895.047 does not govern these plaintiffs’ claims. “The treatment of section[] … 895.047
… first appl[ies] to actions or special proceedings that are commenced on the effective
date of this subsection.” 2011 Wis. Act 2, § 45(5). These plaintiffs initiated their lawsuits
in 2007 and 2010, and § 895.047 did not take effect until February 1, 2011. See Nelson
v. Johnson & Johnson, 2019 WL 3082500 (E.D. Wis. July 15, 2019).
3

14

(2) That it was unreasonably dangerous to the user or consumer;
(3) That the defect was a cause of the plaintiff’s injuries or damages;
(4) That the seller or manufacturer engaged in the business of selling or
manufacturing such product; and
(5) That the product was one which the seller or manufacturer expected to and did
reach the user or consumer without substantial change in the condition it was
in when the seller or manufacturer sold it.
See Dippel v. Sciano, 37 Wis.2d 443, 460 (1967); Haase v. Badger Mining Corp., 274
Wis.2d 143, 154-55 (2004); Thomas ex rel. Gramling v Mallett, 285 Wis.2d 236, 320-21
(2005); Restatement (Second) of Torts § 402A.
Under the common law governing these cases, the Restatement (Second) of Torts’
“consumer contemplation” test determines both whether a product was defective and
whether it was unreasonably dangerous. Green v. Smith & Nephew AHP, Inc., 245 Wis.2d
772, 823 (2001). Per this test, a product is defective if, at the time it leaves the seller’s
hands, it is “in a condition not contemplated by the ultimate consumer.” Id. at 797. A
defective product is unreasonably dangerous where it is “dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its characteristics.” Id. However, a
manufacturer might, in some circumstances, prevent a product from being rendered
unreasonably dangerous by issuing appropriate warnings or directions for use. Id. at 829.
In short, under the applicable law, plaintiffs were not required to prove that
reasonable warnings would have reduced the foreseeable harms associated with
Sherwin-Williams’ WLC in order to establish that Sherwin-Williams’ WLC was defective.

15

They needed only to show that the WLC was in a condition not contemplated by the
ultimate consumer. To this end, they presented evidence that WLC is toxic, and that when
it is incorporated into residential paint, it has the propensity to be released as the paint
deteriorates and mix with household dust, where it is easily ingested by children. The jury
also heard testimony from Sherwin-Williams’ expert historian and others that between
1900 and 1950, residential paint consumers did not contemplate that WLC in paint might
mix with household dust and poison children. That evidence is sufficient to support a jury
finding of product defect under the consumer contemplation test, spanning the 1910-1950
period. The same evidence, together with evidence of the potential severity of lead
poisoning, is sufficient to support the jury’s finding that Sherwin-Williams’ WLC was
unreasonably dangerous for that entire period.
Since plaintiffs made that showing, the burden was on Sherwin-Williams to show
that its warnings were sufficient to render the WLC not unreasonably dangerous. See
Green, 245 Wis. at 829; see also Schuh v. Fox River Tractor Co., 63 Wis.2d 728, 737
(1974)(“In the absence of a warning to the contrary, the jury could well conclude that the
machine was unreasonably dangerous and defective in design.”). Plaintiffs had no
obligation to present evidence of what warnings Sherwin-Williams ought to have given to
render the product not unreasonably dangerous.
D. Substantial Change
Next, Sherwin-Williams argues that plaintiffs did not present sufficient evidence
that Sherwin-Williams’ WLC and WLC products reached consumers or users without
substantial change, which is an element of their strict liability claims. Sherwin-Williams

16

argues that the WLC was changed when it was mixed with other materials to formulate
paint.
Under applicable Wisconsin law, “[m]anufacturers or sellers cannot be held strictly
liable if the condition of the product substantially changes in a way that is material to the
accident after the product leaves their control. . . . [A] substantial and material change [is]
a change in the design, function or character of the product linked to the accident.” Haase,
274 Wis.2d at 155-56 (quoting Glassey v. Continental Insurance Company, 176 Wis.2d
587, 600 (1993)). The purpose of the substantial change requirement “is to protect a
manufacturer from liability when the dangerously defective aspect of the product was
altered or introduced after the product left the manufacturer’s control.” Godoy, 319 Wis.2d
at 119. “Often, the issue of whether there was a substantial and material change is a factintensive inquiry.” Id.
Here, plaintiffs presented evidence from which the jury could find that WLC was
dangerously defective because of its toxicity and its powder form, which allowed it to mix
with household dust and be ingested by children. Sherwin-Williams argues that its WLC
was mixed with other ingredients in order to make usable paints, and that sometimes the
paint-making process involved further grinding of the WLC. The jury could reasonably
have found that these changes were not material, since the WLC was already toxic and
in powder form before it underwent these changes.
E. Sophisticated User Defense
Sherwin-Williams argues that the “sophisticated user” defense shields it from
plaintiffs’ strict liability claims. The sophisticated user defense originates in the
Restatement (Second) of Torts § 388, which “addresses the duty of a manufacturer to

17

warn in negligence actions” and provides that “manufacturers are under a duty to warn
only if the manufacturer has no reason to believe that the user will realize the item’s
dangerous condition.” Strasser v. Transtech Mobile Fleet Service, Inc., 236 Wis.2d 435,
460 (2000), quoting Restatement (Second) of Torts § 388(b). Section 388 has been
applied to shield manufacturers from liability for negligent failure to warn where the
manufacturer has reason to believe that a user has the knowledge necessary to realize
the dangerous condition of the product. Mohr v. St. Paul Fire & Marine Ins. Co., 269 Wis.
2d 302, 318 (Wis.App.2003). Sherwin-Williams argues that the defense should shield it
from the plaintiff’s strict liability claims, to the extent that Sherwin-Williams sold its WLC
products to master painters who allegedly had specialized knowledge about the risks or
lead.
This argument fails, because the “sophisticated user” defense applies only to
negligence claims. As the Mohr court explained, § 388(b)’s sophisticated user defense is
“simply an expression of the general negligence principle that what is reasonable
depends on the circumstances.” Id. at 319. Likely for this reason, Wisconsin courts have
been careful to limit the application of § 388 to negligence claims and not strict liability
claims. See, e.g., id. at 330 (declining to apply sophisticated consumer doctrine to strict
product liability claim); Haase v. Badger Mining Corp., 266 Wis.2d 970, 987 (Wis.App.
2003)(discussing sophisticated user defense in the context of negligence claim, but not
strict liability claim); Westphal v. E.I. du Pont de Nemours & Co., Inc., 192 Wis.2d 347,
365 (Wis.App. 1995)(“Section 388 governs a product manufacturer’s duty to warn in
negligence actions…”).See also Bergfeld v. Unimin Corp., 319 F.3d 350, 353 (8th Cir.
2003)(“Section 388 is a rule of negligence, not one of strict liability.”).

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F. Injury
Sherwin-Williams next argues that it is entitled to judgment in each case because
none of the plaintiffs presented evidence sufficient to support the jury’s conclusion that
the plaintiff had suffered an injury. This argument fails. Each plaintiff claimed that he had
suffered injury to his brain cells resulting in cognitive impairment. In support of this claim,
each plaintiff testified that he struggled with various cognitive processes such as reading
or verbal processing. Plaintiffs also presented expert testimony from a neuropsychologist,
Dr. Idit Trope, who testified that she had performed a battery of cognitive tests on the
plaintiffs and had identified functional deficits in certain areas indicative of brain damage.
Taken together, the plaintiffs’ testimony and Dr. Trope’s testimony are a sufficient basis
for the jury’s finding that each plaintiff is injured.
Sherwin-Williams revives its Daubert challenge to the reliability of Trope’s opinion,
arguing that the variation in the plaintiffs’ cognitive test scores is “normal” and insufficient
to demonstrate brain injury. In support of that argument, it cites its own neuropsychiatrist
expert, David Schretlen, who testified to that opinion at trial. Whether neuropsychiatric
test results reveal normal variation or injury is a conclusion, and Daubert challenges are
properly addressed not to conclusions but to facts and methods. It was proper for the jury
to resolve the battle of experts as to whether the neuropsychiatric test results indicated
normal variation or injury. 4

4

The “injury” sections of Sherwin-Williams’ briefs include additional arguments regarding
the reliability of plaintiffs’ experts’ testimony; these arguments are misplaced, because
the challenged testimony isn’t addressed to the existence of an injury but to other
elements of the plaintiffs’ claims, such as causation and damages. Though they do not
affect my analysis of the “injury” question, I will briefly address these additional arguments
in hopes of clarifying the relationship between the evidence and the elements of plaintiffs’
claims.
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Sherwin-Williams challenges the reliability of Dr. Trope’s opinion that “plaintiffs
have brain damage from lead ingestion” on grounds that she tested the plaintiffs years
after their exposure to lead, and she did not account for scientific evidence that the braindamaging effects of lead diminish over time. ECF # 1735 at 16. There may indeed be
some evidence that the effects of lead ease with time, but that does not affect the reliability
of Trope’s opinions as material to the elements of plaintiffs’ case. It doesn’t affect the
reliability of her opinion as to the existence of an injury at the time she conducted the
tests. Nor does it affect the reliability of her opinion that lead exposure was a cause of the
injury she found, which was based on the premise that the variation in the plaintiffs’
neuropsychiatric test results was consistent with the variations in neuropsychiatric test
results generally associated with lead exposure. Perhaps Sherwin-Williams means to
suggest that, since the effect of lead had likely diminished, some other intervening factor
in the time since the lead exposure occurred must have caused the variations Trope
identified, and Trope failed to account for that factor. But there are gaps in that logic: first,
the effects of lead might have deteriorated without disappearing entirely; second, Sherwin
Williams doesn’t identify any particular intervening factor that might have caused the
variations in cognitive performance that Dr. Trope testified are consistent with lead
exposure; third, even if other factors contributed to the variations Dr. Trope identified,
plaintiffs needed only to prove that lead exposure was a substantial factor in causing their
brain injuries, and not the exclusive cause.
Sherwin-Williams also argues that Dr. Trope cannot “isolate the effect” of lead on
plaintiffs’ test results because she does not have access to maternal IQ or benchmark IQ.
I take Sherwin-Williams to mean that Trope cannot opine as to “how much” injury the
plaintiffs lead exposure caused, because she does not have a basis to estimate what the
plaintiffs’ cognitive ability would have been had they not been injured. Trope did not opine
as to “how much” injury was caused by lead, nor did she need to. She opined that the
plaintiffs had injured brains because their tests revealed variations in cognitive
performance that would likely only occur in injured brains (the “injury” element of the
claim), and that lead exposure was a cause of the injuries to plaintiffs’ brains because the
variations in plaintiffs’ cognitive performance were consistent with the variations in
cognitive performance associated with lead exposure (the “specific causation” element
of the claim). Dr. Trope did not need access to maternal or benchmark IQ information to
reach either of her opinions.
Finally, Sherwin-Williams challenges the reliability of the opinion of plaintiffs’ expert
Dr. Besunder that each plaintiff’s lead exposure likely caused at least a 10-point drop in
IQ. Sherwin-Williams characterizes this testimony as addressed to the “injury” element of
plaintiffs’ claims. As I explained above, plaintiffs’ testimony regarding their cognitive
difficulties and Dr. Trope’s testimony regarding plaintiffs’ neuropsychological tests were
sufficient evidence to support the jury’s conclusion that the plaintiffs have injured brains.
Besunder’s testimony is not a necessary foundation of the injury element of plaintiffs’
claims. Rather, the testimony addresses the quantitative question “how much” plaintiffs
were injured by lead, which puts it in the realm of damages.
Dr. Besunder testified that epidemiological evidence (population studies) shows a
correlation between BLLs in the range of 25 to 30 µg/dL and IQ drops of approximately
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ten points, and that since each plaintiff’s peak BLL had exceeded 30 µg/dL, each plaintiff
had likely experienced at least a 10-point IQ drop. Sherwin-Williams takes issue with Dr.
Besunder’s reliance on population studies to draw conclusions about individual plaintiffs;
it argues that medical professionals do not use population studies to diagnose individual
patients, and since Dr. Besunder’s opinion rests on such studies, it is unreliable. In
support of this argument, Sherwin-Williams cites Doe v. United States, 976 F.2d 1071
(7th Cir. 1992) for the principle that epidemiological studies are not a proper basis for
determination of the cause of an individual’s symptoms. I reject Sherwin-Williams
argument for two reasons: first, I do not read Doe as stating a hard prohibition against the
use of epidemiological evidence to draw conclusions about individuals in the litigation
context; and second, I understand Besunder’s testimony as addressed primarily to the
question of damages, rather than that of causation.
First, Doe does not stand for the principle that epidemiological evidence is
improper support for a medical expert’s opinion or for a finding of fact about a specific
plaintiff. In Doe, child plaintiffs alleged that they suffered psychological harm resulting
from sexual abuse they experienced at a day care center. Plaintiffs’ expert testified that
the children’s psychological symptoms were “consistent” with a history of sexual abuse,
but declined to state for sure that the abuse had caused the symptoms, as opposed to
other factors. Id. at 1086. Defendant’s expert testified that it was unlikely the abuse had
caused the children’s psychological symptoms. After a bench trial, the district court—
acting as factfinder—concluded that the plaintiffs had failed to adequately prove that the
existing psychological symptoms were more probably than not a consequence of the
abuse; therefore, it did not award the plaintiffs damages for future or permanent emotional
injury. The plaintiffs appealed the limited damage award. The Seventh Circuit ruled that
the district court did not abuse its discretion in concluding that, without additional evidence
and weighed against the defendants’ expert testimony, the plaintiffs’ population studies
did not put them across the “preponderance of the evidence” threshold. Id. at 1087. The
Seventh Circuit emphasized the narrow scope of its review and commented that “a
reasonable factfinder might reach a different conclusion.” Id. Therefore, Doe does not
stand for a general principle that population studies are inherently “unreliable,
inadmissible or insufficient” evidence to prove a fact about a specific individual in a
litigation context. See ECF # 1735 at 14. Instead, it invites factfinders to factor such
evidence into their assessment whether a party has met its burden as to an element of a
claim.
Second, Dr. Besunder’s opinion that each plaintiff lost approximately ten IQ points
as a result of his lead exposure is addressed to the question of damages. The injury
question (“Did plaintiff suffer a brain injury?”) and the cause question (“Was lead exposure
a substantial factor in causing plaintiff’s brain injury?”) are both yes/no questions and were
both primarily addressed by Dr. Trope. The question Besunder answers is quantitative:
“How severe is the portion of plaintiffs’ brain injury attributable to lead exposure?” The
question assumes that injury and causation have been established, and seeks to assign
a value to them. As Sherwin-Williams notes, Wisconsin case law provides that where the
amount of damages cannot be proven with exact proof, a plaintiff must present “evidence
with such certainty as the nature of a particular case may permit” to “lay a foundation
which will enable the trier of fact to make a fair and reasonable estimate.” Cutler Cranberry
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G. Causation
Sherwin-Williams makes several arguments that plaintiffs failed to prove the
causation element of their claims.
1. Presence of Sherwin-Williams’ WLC in Plaintiffs’ Homes
Sherwin-Williams argues that plaintiffs presented “no evidence” that they ingested
a defective Sherwin-Williams product containing WLC, and that therefore plaintiffs did not
meet their burden with respect to causation. The heart of Sherwin-Williams’ argument is
that its expert chemist, Dr. Perricone, analyzed paint chips taken from plaintiffs’ homes
and concluded (1) that the paint layers containing WLC did not match the known formulas
of Sherwin-Williams products containing WLC; and (2) that the WLC in those layers did
not match Sherwin-Williams WLO products which was made from an especially pure form
of pig lead. Under risk contribution, it was not plaintiffs’ burden to prove that SherwinWilliams products were present in their homes; rather, Sherwin-Williams adduced the
Perricone evidence in support of an exculpatory defense on which it bore the burden of
proof. See ECF # 1060 at 4-7. Sherwin-Williams is essentially arguing that the jury should
have treated Perricone’s evidence as controlling; however, it was proper for the jury to
decide how much weight to give Perricone’s testimony.

Co., Inc. v. Oakdale Elec. Coop., 254 N.W.2d 243, 240-41 (Wis. 1977). Dr. Besunder’s
use of population studies as a basis for an estimate of the scale of plaintiffs’ injuries was
entirely consistent with this approach. By analogy, in a price fixing case, an expert
economist might use general economic principles and general evidence about market
performance during a time period to devise a formula which might be applied to an
individual plaintiff’s purchasing history and yield an estimate of the amount the plaintiff
was overcharged. In short, Dr. Besunder’s reliance on population evidence does not
render his opinion unreliable for the purpose of estimating the scale of plaintiff’s injuries.

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Sherwin-Williams also argues that plaintiffs failed to show “when or how any WLC
was applied to their residence as a result of a Sherwin-Williams . . . advertisement.” ECF
# 1765 at 11. Plaintiffs were under no obligation to make such showing. Under risk
contribution theory, each plaintiff established his prima facie case against SherwinWilliams by showing that Sherwin-Williams made and sold WLC during the time period of
his house’s existence; Sherwin-Williams then had the opportunity to exculpate itself by
showing that it did not make or sell WLC in the relevant geographic market, which I
previously determined was no larger than the City of Milwaukee. Plaintiffs presented the
evidence of Sherwin-Williams’ advertising in Milwaukee to rebut Sherwin-Williams’
geographic market defense. Plaintiffs did not need to demonstrate any causal relationship
between the advertisements they produced and the WLC present in their homes.
2. Intervening Factors Between Sherwin-Williams’ Negligence and
Plaintiffs’ Injuries
Sherwin-Williams also asserts that plaintiffs did not present sufficient evidence that
Sherwin-Williams’ negligence was a substantial factor in producing their harm. SherwinWilliams cites the principle that, to establish cause-in-fact, “an unbroken series of events
must be proven wherein the negligence of a party is actively operating at the time of an
injury.” Cefalu v. Cont’l W. Ins. Co., 703 N.W.2d 743, 747 (Wis. App. 2005). SherwinWilliams argues that chain of causation is broken by the passage of time between its
manufacture of WLC and plaintiffs’ exposure, and the intervening negligence of third
parties like landlords and tenants of the properties where plaintiffs were exposed.
I have already rejected these arguments in resolving Sherwin-Williams motion for
JNOV. ECF # 1706 at 6-9. Though that motion was based on the Wisconsin public policy

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factors precluding liability and the present motion is addressed to causation-in-fact as an
element of plaintiffs’ claims, the arguments and analysis are essentially the same. See
Cefalu, 703 N.W. at 779-80 (“The public policy factor, ‘whether the injury is too remote
from the negligence,’ is a restatement of the old chain of causation test. It is not much
different than the substantial factor test used to determine cause in fact. Thus, there will
be few cases in which it makes sense to say that a defendant’s negligence has been a
substantial factor in the plaintiffs injury but is too far removed to allow recovery.”)(internal
citations omitted). I will rest on the analysis in my earlier order.
3. WLC in Paint as Cause of Plaintiffs’ Elevated Blood Lead
Levels.
Finally, Sherwin-Williams argues that plaintiffs did not introduce sufficient evidence
that WLC was the cause of their elevated blood lead levels, as opposed to other sources
of lead. Again, plaintiffs need not prove that WLC in paint was the exclusive cause of their
lead exposure, but rather that it was a substantial factor.
Mr. Burton adduced evidence that dust samples taken from his home at the time
of his EBLLs revealed high levels of lead in the dust. Plaintiffs’ expert Jenifer Heath
testified that contemporaneous reports indicate the Health Department inspected
Burton’s home at that time and determined that there were areas of deteriorated paint in
the home that needed lead abatement treatment. Tr. 2419. After the lead abatement was
completed, the records indicate that Burton’s blood lead levels dropped very quickly, Tr.
2420, and that the amount of lead present in household dust also dropped to almost nondetectable levels, Tr. 2421. Dr. Heath testified that these drops in Burton’s BLLs and the
levels in the dust in the house indicate that the abatement was effective in controlling the

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main source of lead in the house. Id. Since the abatement process focused on controlling
exposure to lead from paint, a reasonable inference is that paint was the main source of
lead in the house. Paint chips later taken from Burton’s home were tested and revealed
high levels of WLC. Tr. 2422. It is reasonable therefore to infer that some of the lead to
which Burton was exposed through paint was in the form of WLC. This is sufficient
evidence to support the jury’s conclusion that WLC in paint was a substantial factor in
causing Burton’s lead exposure.
Mr. Sifuentes adduced evidence that his BLL spiked from 6 µg/dL to 48 µg/dL
shortly after he moved into the home on South 32nd Street where he lived when he was
exposed. Tr. 2457-58. HUD inspections at the time of his exposure revealed high levels
of lead in windowsills in the home. Id. at 2460. Lead abatement was performed on twelve
windows and the porch, and after the abatement tests in the home revealed that lead was
below the detectable limit. Id. at 2464, 2465. Dr. Heath testified that Sifuentes’ BLLs came
down following the abatement, indicating that the lead hazards resolved by the abatement
had been a major contributor to Sifuentes’ high BLL. Id. at 2465. Later, paint chips from
the home were tested and indicated significant presence of WLC. Tr. 2466-67. As with
Mr. Burton, this evidence is sufficient to support the jury’s conclusion that WLC in paint
was a substantial factor in causing Sifuentes’ lead exposure.
Mr. Owens adduced evidence that he split time between two homes at the time
that he experienced elevated blood lead levels. Tr. 2472. At one of the homes, on 6th
Street, Owens was spotted eating paint chips. Tr. 2473. The 6th Street house was
inspected, lead hazards were found and abatement of windowsills and trim was ordered.
Id. Chip samples later taken from the 6th Street house indicated significant presence of

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WLC. Tr. 2475. Those facts alone are sufficient to support the jury’s finding that WLC in
paint was a substantial factor in causing Owens’ lead exposure. At the time of his
exposure, Owens also lived part-time at a house on Locust Street. Dust wipe samples
taken at the Locust Street home at the time of Owens’ exposure revealed extremely high
levels of lead in the household dust. Tr. 2479. Chip samples later taken from the Locust
Street house indicated significant presence of WLC. Tr. 2476. Although data was not
available for Dr. Heath to link a drop in Owens’ BLLs to abatement efforts in the homes,
the lead in dust and WLC in paint at the Locust Street home is strongly consistent with
the conclusion that WLC in paint was a substantial factor in causing Owens’ lead
exposure.
H. Damages
Sherwin-Williams argues that the plaintiffs did not present a sufficient evidentiary
basis for the jury’s award of damages. Plaintiffs seek only compensatory damages for the
pain and suffering they have experienced and will experience in the future as a result of
their lead exposure. ECF # 1762 at 26. Under Wisconsin law, pain and suffering include
worry, distress, embarrassment and humiliation. WIS JI-CIVIL 1767 – Personal Injuries:
Future Pain, Suffering and Disability. In answering the damage question as to pain and
suffering, a jury should consider “the extent plaintiff’s injuries have impaired and will
impair his ability to enjoy the normal activities, pleasures and benefits of life,” along with
other factors. Id. Plaintiffs presented evidence that they had suffered injuries to their
brains that impaired certain key cognitive functions. They also presented evidence that
the scale of such injury might be estimated as roughly 10 IQ points. This is sufficient
evidence for a jury to conclude that the plaintiffs had suffered and/or would suffer worry,

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distress, embarrassment and humiliation as a result of their injuries, and that the injuries
had substantially impaired and would impair the plaintiffs’ ability to enjoy the normal
pleasures, activities and benefits of life. Sherwin-Williams’ argument is without merit.
IV.

CONCLUSION

For the reasons stated, IT IS ORDERED that Sherwin-Williams’ motions for
judgment as a matter of law (ECF # 1731, 1734) are DENIED.

Dated at Milwaukee, Wisconsin this 27th day of February, 2020.
s/Lynn Adelman______
LYNN ADELMAN
U.S. District Judge

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