Burton v. American Cyanamid Co et al

Filing 1866

ORDER signed by Judge Lynn Adelman on 3/2/22 that defendant Armstrong's motion for leave to file notice of joinder in Du Pont's renewed motion for summary judgment 1830 is GRANTED. Defendant Du Pont's renewed motion for summary judgment at 1853 is GRANTED. (cc: all counsel)(jad)

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

Case No. 07-C-0303

AMERICAN CYANAMID CO., et al.,
Defendant.
RAVON OWENS,
Plaintiff,
v.

Case No. 07-C-0441

AMERICAN CYANAMID CO., et al.,
Defendant.
______________________________________________________________________
CESAR SIFUENTES,
Plaintiff,
v.

Case No. 10-C-0075

AMERICAN CYANAMID CO., et al.,
Defendant.
______________________________________________________________________
ERNEST GIBSON,
Plaintiff,
v.

Case No. 07-C-0864

AMERICAN CYANAMID CO., et al.,
Defendant.
______________________________________________________________________
MANIYA ALLEN, et al.,
Plaintiff,
v.

Case No. 11-C-0055

AMERICAN CYANAMID CO., et al.,
Defendant.
______________________________________________________________________

DEZIREE VALOE, et al.,
Plaintiffs,
v.

Case No. 11-C-0425

AMERICAN CYANAMID CO., et al.,
Defendant.
______________________________________________________________________
DIJONAE TRAMMELL, et al.,
Plaintiff,
v.

Case No. 14-C-1423

AMERICAN CYANAMID CO., et al.,
Defendant.
______________________________________________________________________
DECISION AND ORDER
The plaintiffs in these actions allege that they suffered injuries from exposure to
white lead carbonate (“WLC”), a dry white powder historically used as the pigment in
many lead-based paints. The plaintiffs allege that they were exposed to the paint in the
1990s and early 2000s, while they were children living in homes in Milwaukee, Wisconsin,
that had lead-based paint on their surfaces. Because the plaintiffs cannot identify the
specific company that manufactured the products that injured them, they could not bring
suit until the Wisconsin Supreme Court decided Thomas ex rel. Gramling v. Mallett, 285
Wis.2d 236 (2005), in which it adopted a “risk contribution” theory of liability for plaintiffs
suing manufacturers of white lead carbonate. The risk-contribution theory modifies the
ordinary rule in tort law that a plaintiff must prove that a specific defendant’s conduct
caused his injury. It instead seeks to apportion liability among the pool of defendants who
could have caused the injury. Using this theory, the plaintiffs seek to hold several
manufactures of white lead carbonate (or their successors) liable under theories of
2

negligence and strict liability for the injuries they suffered from ingesting lead paint
particles.
The suits now before me were filed between 2007 and 2011 and involve
approximately 170 plaintiffs. I have been presiding over most of these cases since their
inception and have been presiding over all of them since 2016, when the lone outlier
(Gibson v. American Cyanamid Co., Case No. 07-C-0864) was reassigned to me. Since
2016, much has happened. I have decided various matters through dispositive motion
practice, the claims of three plaintiffs have gone to trial, one major defendant reached a
settlement with all plaintiffs, and the Seventh Circuit has issued a decision that addresses
many of the significant issues in this case.
Before me now are the remaining defendants’ motions for summary judgment on
the claims of all plaintiffs. Although these motions raise several issues, their predominant
theme is that all plaintiffs are now bound by prior adverse rulings made by the Seventh
Circuit and by me. The defendants contend that, under these prior rulings, no plaintiff may
proceed to trial on his or her claims against any defendant. The plaintiffs do not dispute
that, if the prior rulings bind all plaintiffs, then the defendants are entitled to summary
judgment. However, the plaintiffs urge me not to apply those rulings to plaintiffs whose
claims have yet to be tried. The plaintiffs ask me to reconsider a key ruling that I made
when deciding an earlier motion for summary judgment that relates to whether the
defendants had a duty to warn about the dangers of white lead carbonate. In the
alternative, the plaintiffs argue that I may not apply this ruling to those of them whose
individual claims have not been explicitly addressed through dispositive motion practice
or at trial.
3

As discussed below, I conclude that my duty-to-warn ruling will stand and that it
binds all plaintiffs under the doctrines of law of the case and issue preclusion. For this
reason, the defendants are entitled to summary judgment on all claims.
I. BACKGROUND
A.

Prior Proceedings
The present litigation commenced when Glenn Burton, Jr., filed a complaint in

Milwaukee County Circuit Court against eight manufactures of white lead carbonate. In
early 2007, the defendants removed that case to this court under the diversity jurisdiction,
and it was assigned to me and given Case Number 07-C-0303. Around the same time,
two other cases were filed in state court and removed here and assigned to other judges
of this court. The plaintiffs in those cases are Ravon Owens (No. 07-C-0441) and Ernest
Gibson (No. 07-C-0864). The Owens case was quickly reassigned to me after the parties
refused to consent to the exercise of jurisdiction by a magistrate judge. The Gibson case
would remain pending before another judge of this court until 2016, when it was
reassigned to me. 1
In 2010 and 2011, plaintiffs represented by the same counsel as Burton, Owens,
and Gibson began filing complaints directly in this court. In early 2010, Cesar Sifuentes
(No. 10-C-0075) filed a complaint in this court, and his case was assigned to me. In 2011,
over 160 individuals joined together as plaintiffs and filed a single complaint against the
manufacturers of white lead carbonate. In that action, Maniya Allen, et al. v. American

An eighth case, Stokes v. American Cyanamid Co., et al., No 07-C-0865, was filed in
state court and removed here in 2007. However, that case was dismissed in 2016, and
therefore I will not discuss it further.

1

4

Cyanamid Co., et al., No. 11-C-1155, the plaintiffs indicated on their civil cover sheet that
the case was related to the prior cases already pending before me. Under this court’s
local rule regarding related cases, see Civ. L.R. 3, the case was directly assigned to me.
Also in 2011, Deziree and Detareion Valoe (No. 11-C-0425) filed a complaint against the
manufacturers of white lead carbonate and indicated that it was related to the other leadpaint cases; it, too, was assigned to me. The final case was filed by Dijonae, Ty'Jai, and
Jaquan Trammell. These three plaintiffs were originally part of the Allen action, but the
parties agreed to sever their claims into a separate suit to cure a jurisdictional issue that
arose because the Trammells were citizens of the same state as one of the defendants.
When the severance occurred in 2014, the new case was assigned to me (Case No. 14C-1423).
By 2016, all cases were assigned to me and being administered jointly as a single
litigation, even though the separate case numbers were not formally consolidated for all
purposes under Federal Rule of Civil Procedure 42(a). The plaintiffs were all represented
by the same counsel and waged a coordinated campaign. In April 2016, I entered a case
management order under which the claims of three plaintiffs—Burton, Owens, and
Sifuentes—were to be prepared for trial first. (ECF No. 352 in 07-C-0303.) These are the
“first wave” plaintiffs. The same order contemplated a second wave of cases to be
prepared for trial, but it did not identify the specific plaintiffs to be included in that wave.
By 2018, the defendants had filed motions for summary judgment on the claims of
the first-wave plaintiffs. The claims of those plaintiffs (and all 160+ plaintiffs, for that
matter) were for negligence and strict liability. To satisfy certain elements of both their
negligence and strict-liability claims, the plaintiffs sought to establish that the
5

manufacturers of white lead carbonate had a duty to warn consumers about the dangers
of ingesting their product. With respect to negligence, the plaintiffs argued that the
defendants’ failure to warn resulted in a breach of a legally recognized duty. With respect
to strict liability, the plaintiffs argued that the failure to warn amounted to a product defect.
In moving for summary judgment, the defendants 2 argued that the legal standard
for determining whether they had a duty to warn was the same for both the negligence
and the strict-liability claims. The defendants further argued that, under this single
standard, manufacturers of white lead carbonate had no duty to warn the plaintiffs or their
caregivers about the dangers of lead-based paint because, by the time the plaintiffs were
living in their homes in the 1990s and early 2000s, the public was well aware of those
dangers. This public knowledge, the defendants argued, gave them reason to believe that
those who consumed its products would realize its dangerous condition. Under Wisconsin
law, a defendant who has reason to believe that the dangerous condition of its product
would be known to consumers cannot be liable for failing to provide a warning. See
Strasser v. Transtech Mobile Fleet Serv., Inc., 236 Wis. 2d 435, 460–61 (2000) (quoting
Restatement (Second) of Torts, § 388 (1965)).
When I decided the defendants’ motions for summary judgment on the claims of
the first-wave plaintiffs, I separated the duty-to-warn issue in the negligence context from
the duty-to-warn issue in the strict-liability context. See Burton v. American Cyanamid,
334 F. Supp. 3d 949, 961–67 (E.D. Wis. 2018). With respect to negligence, I stated that,
to survive summary judgment, “each plaintiff must establish that the defendant
The arguments I describe here were made primarily be defendant Sherwin-Williams Co.
However, all defendants would eventually adopt Sherwin-Williams’ position.
2

6

manufacturers owed a duty to that plaintiff to warn him or her (or his or her parents and
caregivers) of the risks associated with [white lead carbonate] when used for residential
paint.” Id. at 961. I also recognized that, under Wisconsin law, a defendant who has
“reason to believe” that consumers of its product “will realize its dangerous condition”
does not have a duty to warn. Id. I then concluded that the plaintiffs could not satisfy their
burden to prove that the defendants “‘had no reason to believe’ that plaintiffs or their
caregivers would realize that the pigment on their walls was dangerous.” Id. I reasoned
as follows:
[A]s plaintiffs acknowledge, Sherwin Williams and other paint
manufacturers had issued product warnings since at least 1955, while
federal, state and local governments have warned of risks of lead in the
homes since the 1970s. Defendants therefore had ample reason to believe
that persons residing in homes with older paint would be aware of the
toxicity of the lead compounds possibly in the paint, and of the various
mechanisms by which that lead might be ingested. Deposition testimony of
plaintiffs’ witnesses supports this point, as parents or caregivers of each
plaintiff testified that they knew, before each plaintiff’s lead exposure, that
children should not eat paint chips because of the risk of lead exposure. I
therefore conclude that the defendants did not owe a duty to plaintiffs or
their caregivers to warn them directly of the risks associated with [white lead
carbonate] in residential paint. Plaintiffs are therefore foreclosed from
pursuing negligence claims that rely on a duty to warn theory.
Id. (citations omitted). 3
With respect to strict liability, I reached a different result. I first recognized that, to
prevail on their strict-liability claims, the plaintiffs had to produce evidence “sufficient to
raise a question of fact as to whether the hazards of WLC in paint were ‘dangerous to an

I also concluded that although the plaintiffs were foreclosed from pursuing negligence
claims based on the lack of warnings, the plaintiffs could “continue to pursue negligence
claims based on the general duty of ordinary care.” Id. The Seventh Circuit would later
reverse this part of my decision. See Burton v. E.I. DuPont de Nemours & Co., 994 F.3d
791, 817–20 (7th Cir. 2021).
3

7

extent beyond that which would be contemplated by the ordinary consumer who
purchases it.’” Id. at 962. Crucially, I determined that “[t]he ‘ordinary consumer’ in question
here must be understood as the ordinary consumer who purchased or used WLC or paint
containing WLC during the years that Sherwin-Williams made WLC, i.e., 1910–1947.” Id.
Focusing on consumer knowledge in 1910–1947 set the strict-liability claim apart from
the negligence claim, which, according to me, depended on consumer knowledge in the
1990s and early 2000s, when the plaintiffs were occupying homes covered with lead
paint. Having identified the period of 1910–1947 as the relevant period for strict liability, I
then found that the plaintiffs had adduced evidence “sufficient to create a triable question
of fact whether ordinary consumers and users of paint during [that period] would have
contemplated the risk that deteriorating paint would cause children to be exposed to lead.”
Id. at 963. More specifically, I found that the jury could conclude that, between 1910 and
1947, “the public was not fully informed about lead poisoning and the mechanisms of
exposure, and [that] therefore the extent of the risks known to Sherwin-Williams would
not have been contemplated by consumers and users of paint at the time.” Id.
In May 2019, the claims of the three first-wave plaintiffs went to trial against the
five defendants remaining in the case at that time. Those defendants were American
Cyanamid Co., E.I. du Pont de Nemours and Company, Inc., the Sherwin-Williams
Company, Armstrong Containers, Inc., and Atlantic Richfield Company. During the trial, I
dismissed American Cyanamid from the case for lack of personal jurisdiction, and so the
claims against it were not submitted to the jury. I would later dismiss American Cyanamid
from all cases for lack of personal jurisdiction, reasoning that all plaintiffs in all cases were
bound by the outcome of the first-wave claims against American Cyanamid under the
8

doctrine of issue preclusion. (ECF No. 364 in No. 11-C-1155.) The jury found three of the
four remaining defendants (DuPont, Sherwin-Williams, and Armstrong) liable for both
negligence and strict liability and awarded the plaintiffs $2 million each. Those three
defendants appealed.
While the appeal of the result of the first-wave trial was pending, the parties filed
motions for summary judgment in the “second wave” cases. By this time, four secondwave plaintiffs had been chosen. These plaintiffs were three of the 160 plaintiffs from
Allen (Latoya Cannon, D’Angelo Thompson, and Tyann McHenry) and one of the three
plaintiffs from Trammell (Dijonae Trammell). As is relevant here, the defendants argued
that summary judgment should be granted on the second-wave plaintiffs’ negligence
claims based on the duty to warn for the same reason that it was granted on the same
claims of the first-wave plaintiffs, namely, because the plaintiffs could not produce
evidence from which a jury could reasonably infer that the defendants had no reason to
believe that the plaintiffs or their caregivers were unaware of the dangers of lead paint in
the 1990s and early 2000s. (See Sherman-Williams Br. in Supp. at 4–5, ECF No. 801 in
No. 11-C-0055.) In response to this argument, the second-wave plaintiffs conceded that
the defendants were entitled to summary judgment on their claims for negligent failure to
warn. Specifically, the plaintiffs included this footnote in their brief in opposition to the
motion for summary judgment:
Sherwin-Williams initially argues that Plaintiffs have no claim for negligent
failure to warn. (See SW MSJ at 4-5.) Well aware of this Court’s previous
order, see Burton v. American Cyanamid, 334 F. Supp. 3d 949, 961 (E. D.
Wis. 2018) (“Burton II”), Plaintiffs concede that they do not have surviving
claims for negligent failure to warn.

9

(Pls.’ Br. in Opp. at 5 n.8, ECF No. 914 in No. 11-C-0055.) In my decision on the motion
for summary judgment in the second-wave cases, I reiterated my conclusion from the
first-wave cases that, given the public knowledge of the dangers of lead paint in the 1990s
and early 2000s, the plaintiffs were foreclosed from pursuing negligence claims that relied
on a duty-to-warn theory. See Allen v. American Cyanamid, 527 F. Supp. 3d 982, 996–
97 (E.D. Wis. 2021). However, I continued to draw a distinction between the duty to warn
under negligence and the duty to warn under strict liability. Thus, as I did in the first-wave
cases, I allowed the plaintiffs to proceed on their strict-liability failure-to-warn claims
based on the possibility that consumers in the period 1900 to 1950 were unaware of the
dangers posed by lead-based paint. See id. at 995–96.
In April 2021, shortly after I decided the motions for summary judgment on the
claims of the second-wave plaintiffs, the Seventh Circuit issued its decision in the appeal
involving the claims of the first-wave plaintiffs. See Burton v. E.I. du Pont de Nemours &
Co., 994 F.3d 791 (7th Cir. 2021). This decision contains several holdings that are
relevant to the present motions for summary judgment. However, the most significant
holding for the future of this litigation is the court’s rejection of my conclusion that the legal
standard governing claims for failure to warn in the strict-liability context is different from
the standard governing claims for failure to warn in the negligence context. The court
concluded that, for purposes of both negligence and strict liability, the necessity of
warnings turned on “what the ultimate consumer (i.e., the plaintiffs or their caregivers)
knew, rather than what consumers in general knew at the time the manufacturer released
the product into the market.” Id. at 823. The court found that I “legally erred in finding that
the defendants had a duty to warn for purposes of strict liability after ruling at summary
10

judgment that they had no duty to warn the plaintiffs on their negligence claims.” Id.
Further, the court noted, the plaintiffs did not appeal my ruling that the defendants had no
duty to warn for purposes of the negligence claims. Id. The court thus held that my ruling
on the negligence claims “compels judgment as a matter of law for [the defendants] on
the strict liability claims.” Id.
B.

Current Motions
After the Seventh Circuit remanded the claims of the first-wave plaintiffs to this

court, the remaining defendants filed renewed motions for summary judgment based on
the court’s rulings. These motions apply to all plaintiffs in all seven cases. However,
distinguishing among the various “waves” of plaintiffs is still relevant, as the reasons the
defendants offer for granting summary judgment vary based on wave.
Regarding the first wave, only three defendants remain: Sherwin-Williams,
Armstrong, and DuPont. The Seventh Circuit held that Sherwin-Williams is entitled to
judgment as a matter of law on all claims that went to trial during that wave. Thus, the
first-wave claims against it are no longer viable, and all that remains is to enter judgment
in its favor. The Seventh Circuit held that Armstrong is entitled to judgment as a matter of
law on the strict-liability claims and a new trial on the negligence claims, and that DuPont
is entitled to a new trial on both claims. Armstrong and DuPont now move for summary
judgment on the claims that were remanded for a new trial, and the first-wave plaintiffs
have not opposed summary judgment on such claims.
Regarding the second wave, all four defendants (Sherwin-Williams, Armstrong,
DuPont, and Atlantic Richfield) contend that they are entitled to summary judgment on all
claims within that wave. Their motions are based primarily on my determination in the
11

prior motion for summary judgment in the second-wave cases that manufacturers of white
lead carbonate had no duty to warn modern consumers about the dangers of lead-based
paint because, by the 1990s and early 2000s, those dangers were well known. Although
my determination originally affected only the plaintiffs’ negligence claims, the Seventh
Circuit’s intervening decision—which holds that the existence of a duty to warn in both
the negligence and the strict-liability contexts must be determined based on the
knowledge of consumers in the 1990s and early 2000s—makes my determination
dispositive of both claims. And the second-wave plaintiffs do not dispute that, if my prior
determination is left intact, then the defendants would be entitled to summary judgment
on all second-wave claims. However, the second-wave plaintiffs ask me to reconsider my
prior determination that modern consumers were sufficiently aware of the dangers of leadbased paint such that no warning from the defendants was required.
The plaintiffs’ request for reconsideration is based on evidence they produced for
the first time in opposition to the current motions for summary judgment. The plaintiffs
contend that this evidence would allow a reasonable jury to find that, although modern
consumers may have been aware of some of the dangers of lead-based paint, they were
not aware of a specific danger involving lead dust. Here, the plaintiffs submit evidence
suggesting that, while modern consumers were generally aware that lead was toxic and
that the ingestion of paint chips containing lead could lead to lead poisoning, such
consumers were not aware of the dangers posed by the lead dust that formed when paint
on the home’s surfaces deteriorated. Unlike paint chips, lead dust was virtually invisible,
and studies in the 1970s began to show that young children picked up and carried the
dust to their mouths during normal hand-to-mouth activities. The plaintiffs contend that,
12

because in the 1990s and early 2000s the dangers of lead dust were not as well publicized
as the dangers of lead chips or the general toxicity of lead-based paint, a jury could
reasonably find that the defendants had reason to know that modern consumers required
warnings to fully understand the dangers of white lead carbonate.
As for the remaining plaintiffs—that is, all plaintiffs other than those in the first and
second waves—the defendants move for summary judgment based on the doctrines of
law of the case and issue preclusion. 4 With respect to each doctrine, the defendants focus
on my determination involving the first- and second-wave claims that consumers in the
1990s and early 2000s did not require warnings about the dangers of lead paint. The
doctrine of law of the case would apply to any plaintiff deemed to be part of the same
“case” as the plaintiffs in the second wave. 5 Because the claims of some plaintiffs from
Allen and Trammell were litigated during the second wave, law of the case potentially
applies to all 150+ remaining plaintiffs in Allen and the two remaining plaintiffs in
Trammell. The doctrine of issue preclusion, in turn, would apply to the plaintiffs in cases
that were not part of the second wave. Only three plaintiffs fall into this category: the two
plaintiffs in Valoe and the sole plaintiff in Gibson. 6

With respect to all claims, the defendants also move for summary judgment on other
grounds, such as that the plaintiffs’ new evidence would not permit a jury to find in their
favor on the duty-to-warn issue. However, because the defendants will prevail based on
law of the case and issue preclusion, I do not discuss the other grounds raised in their
motions.

4

The plaintiffs in the first wave each brought their own case under separate case
numbers, and so there are no remaining plaintiffs in those cases. Thus, law of the case
is not relevant to the first wave.

5

An argument could be made that law of the case applies to the plaintiffs in Valoe and
Gibson, and that issue preclusion applies to the remaining plaintiffs in Allen and Trammell.
However, for purposes of this decision, I will assume that the binding effect of my duty13
6

The remaining plaintiffs contend that I may not use law of the case or issue
preclusion to bar them from relitigating the issue of whether the defendants had a duty to
warn consumers in the 1990s and early 2000s of the dangers of white lead carbonate. I
discuss their specific arguments below.
II. DISCUSSION
A.

Summary Judgment Standard
Summary judgment is required where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). When considering a motion for summary judgment, I view the evidence in the light
most favorable to the non-moving party and must grant the motion if no reasonable juror
could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).
B.

Remaining First-Wave Issues
Because the Seventh Circuit remanded the claims of the first-wave plaintiffs for

further proceedings, I must tie up the loose ends that remain in that wave. First, the
Seventh Circuit held that Sherwin-Williams was entitled to judgment on all first-wave
claims, and therefore I will direct entry of judgment in its favor on those claims. Second,
although the Seventh Circuit remanded certain first-wave claims against DuPont and
Armstrong for a new trial, the first-wave plaintiffs have not opposed these defendants’
renewed motions for summary judgment. Accordingly, I will grant those motions and direct
entry of judgment on all remaining claims of the first-wave plaintiffs.

to-warn determination could apply to the remaining plaintiffs in Allen and Trammell only
through law of the case, and that it could apply to the plaintiffs in Valoe and Gibson only
through issue preclusion.
14

C.

Second-Wave Plaintiffs: Motion for Reconsideration
The second-wave plaintiffs ask that I reconsider my decision at summary judgment

that the defendants did not have a duty to warn consumers in the 1990s and early 2000s
about the dangers of white lead carbonate. See Allen, 527 F. Supp. 3d at 996–97. These
plaintiffs cite Federal Rule of Civil Procedure 54(b), which provides that any order or
decision “may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.” Although this rule grants me the power to
reconsider any nonfinal order, see Cameo Convalescent Ctr., Inc. v. Percy, 800 F.2d 108,
110 (7th Cir. 1986), and although the summary-judgment order at issue here is nonfinal
for purposes of Rule 54(b), reconsideration is a power to be used sparingly and only in
appropriate circumstances. As the Seventh Circuit has stated, “[m]otions for
reconsideration serve a limited function: to correct manifest errors of law or fact or to
present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Indus.,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
In seeking reconsideration, the second-wave plaintiffs argue that “[t]he facts
supporting Defendants’ duty to warn of the hidden dangers of lead dust justify relief from
the Court’s summary judgment ruling.” (Pls.’ Br. in Opp. at 25, ECF No. 1108 in No. 11C-0055.) The problem with this argument is that the plaintiffs did not present the facts on
which they now rely to the court during proceedings on the original motion for summary
judgment. During the initial round of summary judgment in the second-wave cases, the
plaintiffs conceded that consumers in the 1990s and early 2000s were aware of the
dangers of lead-based paint and therefore did not require warnings. (Pls.’ Br. in Opp. at
5 n.8, ECF No. 914 in No. 11-C-0055.) Having conceded this point, the plaintiffs did not
15

point me to evidence suggesting that modern consumers might have been unaware of
the dangers posed by lead dust. Thus, in my decision, I specifically found that
manufacturers of white lead carbonate “had ample reason to believe that persons residing
in homes with older paint would be aware of the toxicity of the lead compounds possibly
in their paint, and of the various mechanisms by which that lead might be ingested.” Allen,
527 F. Supp 3d at 997 (emphasis added). Such mechanisms would include ingestion of
lead dust. Accordingly, my original decision, which was based on the record compiled at
the time and on the arguments that the plaintiffs actually made at the time, was
undoubtedly correct. There was no manifest error of law or fact.
Although the plaintiffs now present new evidence regarding the modern
consumer’s lack of knowledge of the dangers of lead dust, that evidence does not qualify
as “newly discovered evidence” for purposes of a motion for reconsideration. Such a
motion cannot “be employed as a vehicle to introduce new evidence that could have been
adduced during the pendency of the [original] summary judgment motion.” Caisse
Nationale, 90 F.3d at 1269. To support a motion for reconsideration based on newly
discovered evidence, the moving party must show not only that this evidence was newly
discovered or unknown to it until after the original proceeding, but also that it could not
with reasonable diligence have discovered and produced such evidence during the
original proceeding. Id. Here, the second-wave plaintiffs do not argue that the evidence
they now present was unknown to them during prior proceedings or that they could not
with reasonable diligence have discovered or produced that evidence prior to the
summary-judgment phase of the second wave. To the contrary, they concede that “[t]his
litigation is and always has been focused on the hidden dangers of [white lead carbonate],
16

specifically including those presented by invisible household dust.” (Pls.’ Br. in Opp. at
11, ECF No. 1108 in No. 11-C-0055.) That being the case, the plaintiffs were wellequipped to argue, during the prior round of summary judgment, that the defendants had
a duty to warn consumers in the 1990s and early 2000s about the dangers of lead dust.
However, the plaintiffs chose not to press this argument, perhaps because they believed
that my more favorable ruling on the duty to warn in the strict-liability context would hold
up on appeal. The plaintiffs’ having made a strategic choice that they wish to change is
not grounds for reconsideration. Again, the Seventh Circuit’s opinion in Caisse Nationale
is controlling:
A party seeking to defeat a motion for summary judgment is required to
“wheel out all its artillery to defeat it.” Belated factual or legal attacks are
viewed with great suspicion, and intentionally withholding essential facts for
later use on reconsideration is flatly prohibited. Reconsideration is not an
appropriate forum for rehashing previously rejected arguments or arguing
matters that could have been heard during the pendency of the previous
motion.
90 F.3d at 1270 (citations omitted). Here, the distinction between consumer knowledge
of the dangers of lead chips and the dangers of lead dust could have been raised and
argued during the pendency of the previous motion. Accordingly, I will not now reconsider
that ruling in light of the plaintiffs’ belated factual and legal attacks.
The Seventh Circuit held that, for purposes of both negligence and strict liability,
the requirement of warnings turns on what the defendants had reason to believe about
the knowledge of consumers in the 1990s and early 2000s. Burton, 994 F.3d at 821–83.
This holding is binding on all plaintiffs as a matter of stare decisis. See Wesbrook v. Ulrich,
840 F.3d 388, 399 (7th Cir. 2016) (Seventh Circuit interpretation of state law has stare
decisis effect unless state courts call the interpretation into question). Because I
17

previously determined that the defendants were not required to warn consumers in that
period about the dangers of white lead carbonate—including the dangers of lead dust—
and because there are no grounds for reconsidering that determination, it follows that all
defendants are entitled to summary judgment on all claims of the second-wave plaintiffs. 7
D.

Remaining Allen and Trammell Plaintiffs: Law of the Case
The next question is whether my decision, rendered at summary judgment during

the second wave, that the defendants did not have a duty to warn consumers in the 1990s
and early 2000s about the dangers of white lead carbonate, applies to the remaining
plaintiffs in Allen and Trammell as law of the case. Again, this question arises because
the second wave included plaintiffs from Allen and Trammell, and thus the decision at
issue was rendered under the caption for each of those cases.
The term “law of the case” expresses the general practice of courts to refuse to
reopen, during later stages of the same case, matters that have already been decided.
See Messenger v. Anderson, 225 U.S. 436, 444 (1912); Avitia v. Metro. Club of Chicago,
Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). The Seventh Circuit has described the doctrine
as a “presumption, one whose strength varies with the circumstances.” Avitia, 49 F.3d at
1227. The doctrine is not a straitjacket. Id. In general, courts recognize three
circumstances that justify departing from the law of the case: (1) discovery of new
evidence that the party could not have obtained through reasonable effort earlier, (2) an
intervening change in the law, and (3) the earlier decision was clearly erroneous. Kathrein

7

All other pending motions relating to the second-wave plaintiffs will be denied as moot.
18

v. City of Evanston, Ill., 752 F.3d 680, 685 (7th Cir. 2014); Vidimos, Inc. v. Wysong Laser
Co., Inc., 179 F.3d 1063, 1065 (7th Cir. 1999).
At the outset, the remaining plaintiffs in Allen and Trammell contend that the
doctrine of law of the case does not apply to their claims because they were not part of
the same “case” as the claims of the second-wave plaintiffs. But this is clearly incorrect.
Although the remaining plaintiffs have their own claims, they chose to bring those claims
within the cases of Allen and Trammell. Specifically, all plaintiffs in Allen and Trammell
elected to take advantage of Federal Rule of Civil Procedure 20(a)(1), which provides
that “[p]ersons may join in one action as plaintiffs” if certain circumstances are satisfied.
(Emphasis added.) In this context, the term “action” is a synonym for “case.” See Case,
Black’s Law Dictionary (11th ed. 2019). Thus, all plaintiffs in Allen are formally parties to
the same case, as are all plaintiffs in Trammell. 8
Beyond the formal meaning of the term “case,” it is also fair to bind the remaining
plaintiffs in Allen and Trammell to the prior rulings I made on common questions of law or
fact. One of the prerequisites to joinder is that a “question of law or fact common to all
plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1). The purpose of permitting joinder
when there are common questions is “to enable economies in litigation.” Elmore v.
To support their argument that they are not subject to law of the case, the plaintiffs cite
Insolia v. Philip Morris Inc., 216 F.3d 596 (7th Cir. 2000), for the proposition that “the
Seventh Circuit has explicitly held that each plaintiff must be afforded an opportunity to
prove his or her own case.” (Pls.’ Br. in Opp. at 26.) However, Insolia does not suggest
that each plaintiff whose claims were joined under Rule 20(a)(1) may separately litigate
common questions of law or fact. The passage the plaintiffs cite was referring to the
possibility of hypothetical future plaintiffs proving matters that the current plaintiffs were
unable to prove. See Insolia, 216 F.3d at 603 (stating that, while current plaintiffs failed
to prove that the ordinary consumer in 1935 and in the early 1950s did not appreciate the
health risks of smoking, “[a]nother record in another case might be different”).

8

19

Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000). Here, the state of consumer knowledge
in the 1990s and early 2000s about the dangers of lead paint is one such common
question, and I answered that question in my summary-judgment order on the claims of
the second-wave plaintiffs. 9 Allowing the remaining 150+ plaintiffs in Allen and Trammell
to separately relitigate this issue as part of their own claims would destroy the efficiency
that provided the justification for joinder in the first place. Indeed, when, earlier in this suit,
the defendants moved to dismiss or sever the claims in Allen as misjoined, the plaintiffs
identified the efficiency of litigating the “numerous” common questions of law or fact in a
single action as a reason to permit joinder. (Pls.’ Br. in Opp. to Misjoinder at 10, ECF No.
100 in No. 11-C-0055; id. at 15 (arguing that “judicial resources will actually be conserved
and not wasted by maintaining the parties to this case as they are at present”)). The
plaintiffs even described “[p]roof of the failure to warn elements” as being “particularly
conducive” to common resolution. (Id. at 14.) Having been permitted to proceed jointly on
this question, the plaintiffs cannot now claim that it is unfair to bind them to the common
answer. Cf. Looper v. Cook Inc., 20 F.4th 387, 397 (7th Cir. 2021) (noting that, in light of
“the common ground among the cases that justifies the use of the MDL [i.e., multidistrict
litigation] process in the first place,” it would be unfair to allow a party to contradict its prior
position on a common issue of law or fact within the MDL).

Technically, I answered that common question in my summary-judgment decision on
the claims of the first-wave plaintiffs and then applied that common answer to the secondwave plaintiffs when those plaintiffs did not argue for a different result. But the important
point is that the common question has been answered for purposes of the Allen and
Trammell cases.
9

20

Having determined that my prior decision regarding the duty to warn consumers in
the 1990s and early 2000s about the dangers of white lead carbonate is law of the case
for purposes of the Allen and Trammell cases, I now examine whether one of the three
general circumstances that justify departing from the law of the case applies. The first
circumstance is discovery of new evidence that the plaintiffs could not have reasonably
produced prior to the decision that is law of the case. See Vidimos, 179 F.3d at 1065.
Here, as I explained in Part II.C, the plaintiffs have not shown that the distinction they now
seek to draw between consumer knowledge of the dangers of lead chips and the dangers
of lead dust is based on evidence they could not have adduced in opposition to the original
motions for summary judgment. Thus, the exception for newly discovered evidence does
not apply.
The second circumstance is an intervening change in the law. Here, the plaintiffs
point to the Seventh Circuit’s decision in the first-wave cases as a potential change in the
law or another “special circumstance” that warrants departure from the law of the case.
(Pls.’ Br. in Opp. at 28–29 & n.11.) But the Seventh Circuit did not change the legal
standards that govern whether a manufacturer has a duty to warn for purposes of a
negligence claim. Instead, the court applied the same law that I applied. See Burton, 994
F.3d at 822 (“In a negligence action, a manufacturer is not liable unless it ‘has no reason
to believe that those for whose use the chattel is supplied will realize its dangerous
condition.’ Strasser v. Transtech Mobile Fleet Serv., Inc., 236 Wis.2d 435 (quoting
Restatement (Second) of Torts § 388 (1965)).”). It is true that the Seventh Circuit
disagreed with my interpretation of Wisconsin law on the issue of which consumers matter
for purposes of determining whether warnings were required in the context of a strict21

liability claim—I said that consumers from 1900–1950 mattered, but the Seventh Circuit
held that consumers from the 1990s and early 2000s mattered. Id. at 823. But that change
in the law does not affect the factual question regarding what consumers in the 1990s or
early 2000s knew about the dangers of lead paint. Thus, the intervening decision from
the Seventh Circuit does not warrant a departure from the law of the case.
The final circumstance for setting aside the law of the case is when the court is
convinced that its earlier ruling was erroneous. Avitia, 49 F.3d at 1227 (“A judge may
reexamine his earlier ruling (or the ruling of a judge previously assigned to the case, or of
a previous panel if the doctrine is invoked at the appellate level) if he has a conviction at
once strong and reasonable that the earlier ruling was wrong, and if rescinding it would
not cause undue harm to the party that had benefited from it.”); Philips Med. Sys. Int’l B.V.
v. Bruetman, 8 F.3d 600, 603 (7th Cir. 1993) (doctrine of law of the case does not prevent
court from correcting “demonstrable errors”). However, as I explained in Part II.C, my
decision could not have been erroneous because the plaintiffs conceded that consumers
in the 1990s and early 2000s were aware of the dangers of lead-based paint and therefore
did not require warnings. (Pls.’ Br. in Opp. at 5 n.8, ECF No. 914 in No. 11-C-0055.)
Having conceded this point, the plaintiffs did not point me to evidence suggesting that
modern consumers might have been unaware of the dangers posed by lead dust. Thus,
my original decision, which was based on the record compiled at the time and on the
arguments that the plaintiffs actually made at the time, was undoubtedly correct.
Ultimately, the only reason the plaintiffs can offer for departing from the law of the
case is that, given the Seventh Circuit’s opinion in the first-wave cases, my determination
regarding the knowledge of modern consumers is now dispositive of both the negligence
22

and the strict-liability claims instead of only the negligence claims. But this change in the
significance of the determination is not itself a circumstance that justifies reopening a
settled question. Notably, at the time I made the original determination, the issue was not
insignificant. The plaintiffs’ claims for negligent failure to warn depended on it, and the
plaintiffs were not guaranteed a victory on their other negligence claims or on their strictliability claims. Thus, the plaintiffs had every incentive and opportunity to demonstrate, at
the time of summary judgment in the second-wave cases, that a reasonable jury could
find that the defendants had reason to believe that consumers in the 1990s and early
2000s were unaware of the dangers of lead dust, even if those same consumers were
aware of the dangers of lead paint generally. But instead of developing an argument along
those lines, the plaintiffs conceded the issue and focused on other arguments. Although
I do not criticize the plaintiffs for adopting this strategy—indeed, that strategy might have
given the plaintiffs their best odds of success—a party’s desire to change legal strategy
during a later stage of the case does not justify a departure from the law of the case. See
Burley v. Gagacki, 834 F.3d 606, 619 (6th Cir. 2016).
In short, I conclude that the remaining plaintiffs in Allen and Trammell are bound
by my prior determination that the defendants had no duty to warn children or their
caregivers in the 1990s and later of the dangers of white lead carbonate, including the
dangers of lead dust. See Allen, 527 F. Supp. 3d at 997. In light of that determination, the
defendants are entitled to summary judgment on such plaintiffs’ claims for negligence and
strict liability.

23

E.

Valoe and Gibson: Issue Preclusion
The final question is whether my decision in the second-wave cases regarding the

knowledge of modern consumers binds the remaining three plaintiffs: Deziree and
Detareion Valoe and Ernest Gibson. These plaintiffs were not formal parties to Allen or
Trammell or any of the first-wave cases, and thus it is at least arguable that the doctrine
of law of the case does not bind them to the prior ruling made in those cases. However,
the plaintiffs in Valoe and Gibson share the same interests as the plaintiffs in in Allen,
Trammell, and the first-wave cases, and they are represented by the same attorneys, who
have pursued a common strategy across all cases. The defendants argue that, in light of
these facts, the plaintiffs in Valoe and Gibson are bound by my decision in the secondwave cases under the doctrine of issue preclusion.
The doctrine of issue preclusion (formerly known as collateral estoppel), like the
doctrine of claim preclusion (formerly known as res judicata), determines the preclusive
effect of a prior judgment. When the judgment at issue was rendered by a federal court,
its preclusive effect is determined by federal common law. Taylor v. Strugell, 553 U.S.
880, 891 (2008). However, when the federal court rendered the judgment while sitting in
diversity, federal common law incorporates the rules of preclusion that would be applied
by the state courts of the state in which the federal court sits. Id. at 891 n.4; Semtek Int’l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001). Thus, to determine whether the
plaintiffs in Valoe and Gibson are subject to issue preclusion, I apply Wisconsin law.
Issue preclusion “is a doctrine designed to limit the relitigation of issues that have
been contested in a previous action between the same or different parties.” Michelle T.
by Sumpter v. Crozier, 173 Wis. 2d 681, 687 (1993). When applying the doctrine, “courts
24

balance competing goals of judicial efficiency and finality, protection against repetitious
or harassing litigation, and the right to litigate one’s claims before a jury.” Id. at 688. Under
Wisconsin law, a two-step analysis is used to determine whether issue preclusion applies:
first, the court asks whether issue preclusion can, as a matter of law, be applied; if so, the
court then asks whether the application of issue preclusion would be fundamentally fair.
In re Estate of Rille ex rel. Rille, 300 Wis. 2d 1, 19 (2007). In the first step, a court must
determine “whether the issue or fact was actually litigated and determined in the prior
proceeding by a valid judgment in a previous action and whether the determination was
essential to the judgment.” Id. at 20. Where, as here, a party seeks to apply issue
preclusion against a person who was not a formal party to the prior action, the first step
also requires that the court determine whether the person was “in privity with or had
sufficient identity of interest” with a person who was a party to that action such that
applying issue preclusion would comport with due process. Paige K.B. ex rel. Peterson v.
Steven G.B., 226 Wis. 2d 210, 224 (1999). In the second step, a court considers five
factors, “which are not exclusive or dispositive,” in determining whether application of
issue preclusion is fundamentally fair. Rille, 300 Wis. 2d at 20.
Before turning to this two-step analysis, I pause to consider whether any
“judgment” has been entered in the second-wave cases that could have issue preclusive
effect. The plaintiffs do not dispute that such a judgment has been entered, but I raise this
issue on my own because a final judgment under Federal Rules of Civil Procedure 54
and 58 has not been entered in the second-wave cases. Thus, my summary-judgment
decision in the second-wave cases is not final for purposes of appellate review. However,
“it is a mistake to equate the concept of finality for purposes of appellate review with the
25

concept of finality for purposes of issue preclusion.” Haber v. Biomet, Inc., 578 F.3d 553,
557 (7th Cir. 2009). The finality requirement for appellate review ensures that court
resources are used efficiently and that the appellate court sees the entire case. Id. The
finality requirement in issue preclusion also serves efficiency, but in a different way: “by
ensuring that parties who have fully and fairly litigated a particular issue (which is
expressly resolved and necessary to the outcome) do not receive more than one bite at
the apple.” Id. Courts generally follow the Restatement of Judgments when determining
finality for purposes of issue preclusion, which states that “‘final judgment’ includes any
prior adjudication of an issue in another action that is determined to be sufficiently firm to
be accorded conclusive effect.” Restatement (Second) of Judgments § 13 (Am. Law Inst.
1982); see Coleman v. Comm’r, 16 F.3d 821, 830 (7th Cir. 1994) (following this section
of the Restatement); Rille, 300 Wis. 2d at 24 n.24 (“Wisconsin courts have consistently
relied on the Restatement (Second) Judgments for guidance when deciding questions
related to issue preclusion.”).
Here, I conclude that my determination at summary judgment in the second wave
on the issue of modern consumer knowledge of the dangers of white lead carbonate was
sufficiently firm to be accorded preclusive effect. That decision was not in any way
tentative or uncertain; rather, I rendered it after the parties were fully heard, and I
supported the decision with a reasoned opinion. Moreover, the Wisconsin Supreme Court
has held that “[a] summary judgment in favor of the defendant is sufficient to meet the
requirement of a conclusive and final judgment.” Rille, 300 Wis. 2d at 24 (quoting DePratt
v. West Bend Mut. Ins. Co., 113 Wis.2d 306, 310–11, (1983)). This holding appeared in
a case in which the summary judgment was given issue preclusive effect within “the four
26

corners of the same lawsuit.” Id. at 21. Thus, the Wisconsin Supreme Court would give
preclusive effect to my summary-judgment decision in the second-wave cases even
though I have yet to enter final judgment under Rules 54 and 58 on the claims of the
second-wave plaintiffs. 10
Having determined that my decision at summary judgment is final for purposes of
issue preclusion, I return to the two-step analysis governing whether that doctrine should
be applied. First, I examine whether issue preclusion may be applied as a matter of law.
Here, there is no dispute that the issue of whether a jury could reasonably find that
consumers in the 1990s and early 2000s were unaware of the dangers of white lead
carbonate, such that the defendants were required to issue warnings, was actually
litigated and determined at summary judgment in the second-wave cases. There is also
no dispute that the determination of this issue was essential to the judgment. Thus, these
elements of issue preclusion are satisfied. See Rille, 300 Wis. 2d at 20.
The plaintiffs contend that the judgment in the second-wave cases cannot be
applied to them because they were not formal parties to those cases. As noted, however,
Wisconsin does not require formal identity of parties. Rather, even if the person sought
to be precluded was not a party to the prior action, issue preclusion may apply if the
person was “in privity with or had sufficient identity of interest” with a person who was a
party to that action such that applying issue preclusion would comport with due process.
Paige K.B., 226 Wis. 2d at 224. Wisconsin courts have applied this rule to sequential
Even if a final judgment under Rules 54 and 58 were required, it will be entered
immediately after this order is docketed, in accordance with my decision regarding law of
the case. This underscores that my summary-judgment decision on the duty to warn is
sufficiently firm to be accorded preclusive effect.
10

27

litigation by related plaintiffs in personal-injury suits. Specifically, in Jensen v. Milwaukee
County Mutual Insurance Co., 204 Wis. 2d 231 (Ct. App. 1996), the Wisconsin Court of
Appeals held that a husband’s litigation of issues arising out of a car accident against the
driver of another vehicle and his liability insurer had preclusive effect in a subsequent suit
brought by his wife, who was a passenger in the vehicle driven by the husband, against
the same driver’s insurer. The court noted that the wife had an “obvious interest in the
prior proceeding,” and it emphasized that her choice of the same counsel who
represented her husband showed that she “approve[d] of the tactics and strategy
employed in [the prior] action.” Id. at 239–40. 11
In the present case, the plaintiffs in Valoe and Gibson are in a similar position as
was the wife in Jensen. They had an “obvious interest” in the first- and second-wave
cases, in that the plaintiffs were prosecuting claims against the same defendants under
identical legal theories in front of the same court and the same judge, who had been
managing all cases jointly. Further, the plaintiffs in Valoe and Gibson are represented by
the same counsel as were the first- and second-wave plaintiffs, which shows that they
approved of the tactics and strategy employed in the prior action. Indeed, in a prior order,
I determined that, due to the identity of interests among all plaintiffs in these related
actions, the plaintiffs in Valoe and Gibson (among others) were bound by issue preclusion

In the absence of guiding decisions by the state’s highest court, federal courts sitting
in diversity consult and follow the decisions of intermediate appellate courts unless there
is a convincing reason to predict the state’s highest court would disagree. Smith v.
RecordQuest, LLC, 989 F.3d 513, 517 (7th Cir. 2021). Here, I see no convincing reason
to predict that the Wisconsin Supreme Court would disagree with Jensen. To the contrary,
the Wisconsin Supreme Court has discussed the holding of Jensen and did not suggest
that it was wrongly decided. See Paige K.B., 226 Wis. 2d at 228.
11

28

to my determination in the first-wave cases that defendant American Cyanamid was not
subject to personal jurisdiction in Wisconsin. See Allen v. Am. Cyanamid Co., No.11-C0055, 2019 WL 5863979 (E.D. Wis. Nov. 8, 2019). In that order, I identified the “shared
counsel” and “tightly coordinated litigation strategy between the present and prior
plaintiffs” as reasons to find that the plaintiffs in later waves were bound by a first-wave
decision on a common question. Id. at *3. As I did in that order, I now conclude that the
plaintiffs in Valoe and Gibson had a “sufficient identity of interest” with the plaintiffs in the
earlier waves such that, as a matter of Wisconsin law and due process, issue preclusion
can be applied. Paige K.B., 226 Wis. 2d at 226. 12
Having found that issue preclusion can be applied as a matter of law, I turn to the
second step and ask whether applying issue preclusion would be “fundamentally fair.”
Rille, 300 Wis. 2d at 19. When making this fairness determination, Wisconsin courts
generally consider the following five non-exclusive and non-dispositive factors:

I note that the Supreme Court of the United States has disapproved of the doctrine of
“virtual representation,” which has been used to bind nonparties to a judgment rendered
in a prior action. Taylor, 553 U.S. at 885. However, the holding of Taylor applies only to
“a federal-question case decided by a federal court.” Id.at 904. As noted, this case is
based on diversity and therefore is governed by Wisconsin’s preclusion principles. The
plaintiffs have not cited, and I have not found, any Wisconsin cases indicating that the
Wisconsin Supreme Court would abandon the “sufficient identity of interest” test in light
of Taylor. Moreover, this case presents a stronger case for nonparty preclusion than does
the usual case involving virtual representation. Here, the plaintiffs essentially agreed to
litigate their claims as part of a conglomeration of related cases being prosecuted by the
same counsel in front of the same court and judge in a tightly coordinated manner. In
contrast, virtual representation usually involves entirely separate litigation by parties with
nothing more than similar litigation objectives and a loose relationship. See id. at 885–91.
Thus, even if the Wisconsin Supreme Court would disapprove of the doctrine of virtual
representation, I do not believe that it would hold that, as a matter of law, issue preclusion
cannot apply to the Valoe and Gibson plaintiffs.
12

29

(1)

Could the party against whom preclusion is sought have
obtained review of the judgment as a matter of law;

(2)

Is the question one of law that involves two distinct claims or
intervening contextual shifts in the law;

(3)

Do significant differences in the quality or extensiveness of
proceedings between the two courts warrant relitigation of the
issue;

(4)

Have the burdens of persuasion shifted such that the party
seeking preclusion had a lower burden of persuasion in the
first trial than in the second; and

(5)

Are matters of public policy and individual circumstances
involved that would render the application of collateral
estoppel to be fundamentally unfair, including inadequate
opportunity or incentive to obtain a full and fair adjudication in
the initial action?

Id. at 20, 29.
Here, the first factor nominally favors the Valoe and Gibson plaintiffs, as they
cannot force the second-wave plaintiffs to appeal my prior summary-judgment ruling.
However, because all plaintiffs are represented by the same counsel and have been
engaged in coordinated litigation, I have no doubt that, if any plaintiff in any wave saw
grounds for appealing my prior ruling, then the second-wave plaintiffs would file an
appeal.
Regarding the second factor, as I explained in the context of law of the case, there
has not been a material change in the law since the time I decided the prior motions for
summary judgment in the second wave. Although the Seventh Circuit’s intervening
decision in the first-wave cases altered some of my prior rulings, that decision did not
disturb the legal principles that caused me to determine that the defendants had reason

30

to believe that modern consumers were fully aware of the dangers of white lead
carbonate. Thus, the second factor favors the defendants.
Regarding the third factor, I see nothing in the quality or extensiveness of
proceedings between “the two courts” that would warrant relitigation of the issue. Indeed,
both cases were litigated before the same judge of the same court by the same counsel.
And the proceedings in the first and second waves were extensive and of high quality. As
noted, by the time I decided the duty-to-warn issue in the second wave, I had already
considered it in the first wave. In both the first and the second waves, the plaintiffs were
represented by highly qualified counsel who had ample time to research and investigate
this issue and take whatever discovery they thought relevant to the issue. 13 Thus, the
third factor favors the defendants.
Regarding the fourth factor, it clearly favors the defendants, as the burdens of
persuasion have not shifted between the earlier waves and now.
Finally, as to the fifth factor, I see no matters of public policy or individual
circumstances that would render the application of issue preclusion fundamentally unfair,
such as an inadequate opportunity or incentive to obtain a full and fair adjudication in the
prior proceeding. As I discussed in the context of law of the case, the second-wave

I note that, during briefing on the current motions for summary judgment, I granted the
plaintiffs leave to take additional discovery on the duty-to-warn issue. In my order granting
such leave, I stated that “the remaining plaintiffs have not had an opportunity to conduct
discovery into this issue.” (ECF No. 1103 at 4.) However, the first- and second-wave
plaintiffs did have an opportunity to take discovery on this issue, which is the important
point for purposes of the third factor. Moreover, I issued the order for additional discovery
before I had fully evaluated the defendants’ positions on law of the case and issue
preclusion. Now that I have done so, I believe that the remaining plaintiffs were not entitled
to a separate round of discovery on this issue.
13

31

plaintiffs had every opportunity and incentive to show that a reasonable jury could find
that the defendants had reason to believe that consumers in the 1990s and early 2000s
were unaware of the dangers of lead dust, even if those same consumers were aware of
the dangers of lead paint generally. That was so because their claims for negligent failure
to warn depended on it and the plaintiffs were not guaranteed a victory on their other
negligence claims or on their strict-liability claims. Thus, the adjudication in the prior
proceeding was full and fair.
Perhaps most importantly, by the time the second-wave plaintiffs filed their brief in
opposition to the defendants’ motions for summary judgment on the duty-to-warn issue, I
had already put all plaintiffs on notice that my decisions on common questions of law or
fact would have issue preclusive effect across all the lead-paint claims in the related
actions pending before me. That notice was my decision on American Cyanamid’s motion
to dismiss for lack of personal jurisdiction, which I issued in November 2019. As I
discussed above, in that decision, I determined that all plaintiffs in the related cases were
bound by the first-wave plaintiffs’ litigation of the personal-jurisdiction issue, which was a
common issue among all cases. In opposing the application of issue preclusion at that
time, the plaintiffs (including those in Valoe and Gibson) claimed that it would be
fundamentally unfair to apply issue preclusion against them because the plaintiffs in the
first wave “did not understand that they were representing any other plaintiffs.” Allen, 2019
WL 5863979, at *3. I rejected that argument and stated that it was not unfair to the other
plaintiffs to give the jurisdictional ruling preclusive effect. Thus, by November 2019, all
plaintiffs should have understood that the plaintiffs in the earlier proceedings were
representing the plaintiffs in the later proceedings as to common questions of law or fact.
32

The plaintiffs filed their response to the defendants’ motions for summary judgment on
the second-wave claims on June 29, 2020. (ECF No. 914 in 11-C-155 and ECF No. 670
in 14-C-1423.) By that time, the plaintiffs in Valoe and Gibson should have known that
their interests were at stake in the second-wave proceedings. Accordingly, it would not
be fundamentally unfair to bind them to a decision on a common issue rendered in those
proceedings.
Because issue preclusion applies to the plaintiffs in Valoe and Gibson, the
defendants are entitled to summary judgment on their claims for negligent failure to warn
and strict-liability failure to warn. Moreover, as a matter of stare decisis, the defendants
are entitled to summary judgment on the plaintiffs’ other negligence claims. See Burton,
994 F.3d at 817–20.
III. CONCLUSION
Before concluding, I recognize that ending the claims of 150+ injured plaintiffs
under the doctrines of law of the case and issue preclusion may seem harsh. But our
system of litigation is built on the principle that parties are entitled one full and fair round
of litigation on an issue. Further, when multiple plaintiffs join together and bring a series
of related claims before the same court using the same counsel and legal strategies,
principles of efficiency and fairness require that the plaintiffs receive only one opportunity
to litigate common questions of law or fact. Allowing the plaintiffs to use the nature of a
complex lawsuit to litigate common questions serially would give them an unfair
advantage. The earliest plaintiffs could test a legal strategy and, if it fails, request
reconsideration during further proceedings. Later plaintiffs, if not bound by the result of
earlier proceedings, could repeatedly try out new approaches to common questions in
33

each wave of the proceedings. At the same time, the defendants, as formal parties to
each case, would be forced to relitigate the same questions over and over. Indeed, there
is no doubt that, had the plaintiffs prevailed on the duty-to-warn issue during the first and
second waves, the defendants would be bound by that ruling in all waves. The fact that
the earlier plaintiffs did not prevail does not justify giving the later plaintiffs a second bite
at the apple when, all along, the plaintiffs have been aligned in interest and pursuing a
common legal strategy through the same counsel. Moreover, permitting repetitive
litigation on common questions would unnecessarily strain judicial resources and destroy
the efficiencies that justified use of the common procedure in the first place. In short,
principles of fairness, efficiency, and finality dictate that all plaintiffs and all defendants in
these related actions be bound by the court’s rulings on common questions of fact or law.
Because the key common rulings have gone against the plaintiffs, the defendants are
entitled to summary judgment.
For the reasons stated, IT IS ORDERED that defendant Sherwin-Williams’ motion
for leave to file its renewed motion for summary judgment at 11-cv-0055 at ECF No. 1085
and 14-cv-1423 ECF No. 759 is GRANTED.
IT IS FURTHER ORDERED that defendant Armstrong’s motion for leave to file
notice of joinder in Du Pont’s renewed motion for summary judgment at 07-cv-0303 ECF
No. 1830 is GRANTED.
IT IS FURTHER ORDERED that defendant Armstrong’s motion for joinder at 11CV-0055 ECF No. 1089 and 11-cv-0425 ECF No. 280 is GRANTED.
IT IS FURTHER ORDERED that defendant Du Pont’s renewed motion for
summary judgment at 07-cv-0303 ECF No. 1853 is GRANTED.
34

IT IS FURTHER ORDERED that defendant Atlantic Richfield’s motion for summary
judgment at 07-cv-0864 ECF No. 427, 11-cv-0425 ECF No. 270, and 14-cv-1423 ECF
No. 755 is GRANTED.
IT IS FURTHER ORDERED that defendant Sherwin-Williams’ motion for summary
judgment at 07-cv-0864 ECF No. 431, 11-cv-0055 at ECF No. 1082, 11-cv-0425 ECF No.
274, and 14-cv-1423 ECF No. 760 is GRANTED.
IT IS FURTHER ORDERED that defendant Du Pont’s motion for joinder at 07-cv0864 ECF No. 434, 11-cv-0055 at ECF No. 1086, 11-cv-0425 ECF No. 277, and 14-cv1423 ECF No. 763 is GRANTED.
IT IS FURTHER ORDERED that defendant Armstrong’s motion for joinder at 07cv-0864 ECF No. 437 is GRANTED.
IT IS FURTHER ORDERED that plaintiffs’ motion to strike Sherwin-Williams’
supplemental reports in the Second Wave cases at 11-cv-0055 ECF No. 1071 and 14cv-1423 ECF No. 748 is DENIED AS MOOT.
IT IS FURTHER ORDERED that defendant Sherwin-Williams’ motion for
reconsideration of the court’s exclusion of defense expert John Goldberg at 11-cv-0055
ECF No. 1075 and 14-cv-1423 ECF No. 753 is DENIED AS MOOT.
IT IS FURTHER ORDERED that defendant Atlantic Richfield’s motion for summary
judgment at 11-cv-0055 ECF No. 1078 is GRANTED.
IT IS FURTHER ORDERED that defendant Sherman-Williams’ motion for judicial
notice at 07-cv-864 ECF No. 459, 11-cv-0055 ECF No. 1112, 11-cv-0425 ECF No. 303,
and 14-cv-1423 ECF No. 786 is DENIED AS MOOT.

35

The Clerk of Court is directed to enter judgment in favor of the defendants in all
cases.
Dated at Milwaukee, Wisconsin, this 2nd day of March, 2022.

s/Lynn Adelman_______
LYNN ADELMAN
United States District Judge

36