Gibson v. American Cyanamid Co et al

Filing 111

ORDER signed by Judge Rudolph T Randa on 6/15/10 granting 74 ARCO's motion for summary judgment; denying 90 Gibson's cross-motion for summary judgment. (cc: all counsel)(Randa, Rudolph)(dm)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

E R N E S T GIBSON, Minor, by his g u a r d ia n ad litem, SUSAN M. GRAMLING, P l a in tif f , C a s e No. 07-C-864 -vsA M E R I C A N CYANAMID Co., A R M S T R O N G CONTAINERS, Inc., E .I . Du PONT de NEMOURS and Co., M I L L E N I U M HOLDINGS LLC, N L INDUSTRIES, Inc., A T L A N T I C RICHFIELD Co., T H E SHERWIN WILLIAMS Co., and M I L W A U K E E COUNTY DEPARTMENT OF H E A L T H AND SERVICES, Defendants.

D E C IS IO N AND ORDER

T h i s is a childhood lead poisoning case brought pursuant to what is known as the "risk c o n trib u tio n " rule adopted by the Wisconsin Supreme Court in Thomas ex rel. Gramling v. M a llett, 701 N.W.2d 523 (Wis. 2005). The case is before this Court because of the diversity o f the parties. B y adopting the risk contribution rule in Thomas, the Wisconsin Supreme Court e ss e n tially disregarded the black letter rule of tort law that a party's liability for an injury is a tta c h ed to the causation by that party of that injury. While the court in Collins v. Eli Lilly C o ., 342 N.W.2d 37 (Wis. 1984) changed the concept of causation to a degree that fit the

u n u s u a l facts of that case, Thomas was a dramatic and novel departure from established legal p rin c ip le s. The Wisconsin Supreme Court, as it did in Collins, relied upon Article I, Section 9 of the Wisconsin Constitution, which states, in pertinent part, that every person is "entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, p rop erty, or character . . ." By reading a due process standard into this section, the court f o u n d that the injured Thomas should not be foreclosed from recovery simply because he c o u ld not prove causation. In essence and effect, when the court's view of due process re q u ire s it, every person is "entitled to a certain remedy . . . for all injuries." Wis. Const. art. I, § 9. When an adequate remedy does not exist to "provide due process, the courts, under th e Wisconsin Constitution, can fashion an adequate remedy." Thomas, 701 N.W.2d at 556 (q u o tin g Collins, 342 N.W.2d at 45). T h e court's provision of "due process" to Thomas was, in turn, challenged by the T h o m a s defendants as a violation of their due process rights. These challenges were deemed "n o t ripe" for adjudication, but defendant Atlantic Richfield Co. ("ARCO") raises them here in its motion for summary judgment. Because the Court finds that the imposition of liability under the risk contribution rule established in Thomas would violate ARCO's substantive due p roc ess rights under the U.S. Constitution, amend. XIV, § 1, ARCO's motion for summary ju d g m e n t is granted. I. T h e plaintiff, Ernest Gibson ("Gibson"), alleges that in January 1997 his family m o v e d into a residence located at 2904 West Wisconsin Avenue, Milwaukee, Wisconsin.

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H e contends that he sustained an injury caused by ingesting paint containing white lead ca rbo n ate pigment at that residence. Plaintiff is unable to identify the specific manufacturer, s u p p lie r or distributor of the white lead carbonate he allegedly ingested. He does not allege th a t ARCO itself manufactured, produced or sold white lead carbonate pigment. P lain tiff 's claim against ARCO is based on sales of white lead carbonate by ARCO's a lle g e d predecessors-in-interest, one of which is International Smelting and Refining C o m p a n y ("IS&R"). IS&R manufactured white lead carbonate at a plant in East Chicago, In d ia n a from 1936 until 1946, when it sold the plant. During the time from 1936 to 1946 w h e n IS&R operated the East Chicago plant, IS&R sold white lead carbonate under the " A n a c o n d a" brand name to both paint manufacturers and manufacturers of ceramics and o t h e r non-paint products. IS&R was a wholly-owned subsidiary of the Anaconda Copper M in in g Company (later renamed The Anaconda Company), a publicly traded mining and m e ta ls company. In 1973, The Anaconda Company merged IS&R into itself. In 1977, ARCO acquired 1 0 0 % of the shares of The Anaconda Company. ARCO operated The Anaconda Company a s a wholly-owned subsidiary until 1981, when it merged The Anaconda Company into itse lf . ARCO does not dispute that, as a result of mergers in 1981 and 1973, it succeeded to th e liabilities, if any, of The Anaconda Company and its former subsidiary IS&R.1
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In support of his cross-motion for summary judgment, Gibson asserts that ARCO also succeeded to the lia b ilitie s of Anaconda Lead Products Company, Anaconda Sales Company, and the International Lead Refining C o m p a n y . D. 90-1, Plaintiff's Proposed Findings of Fact, ¶ 1. Plaintiff relies on the disputed allegations of his complaint, w h ile in opposition, ARCO responds with evidence establishing that it did not succeed to the liabilities of these various e n t itie s . D. 98, ARCO's Additional Responsive Proposed Findings of Fact, ¶¶ 1-22. W h e t h e r ARCO succeeded to the lia b ilitie s of these companies, in addition to the liabilities of IS&R and the Anaconda Company, is not relevant to the C o u r t ' s task in determining whether application of the risk contribution rule to ARCO is unconstitutional.

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T h e use of lead pigments in residential paints was banned by federal and state re g u la tio n as early as the 1970s. Wisconsin banned the use of lead paint in 1980. II. A. A s stated, the Wisconsin Supreme Court originally created the risk contribution rule i n Collins v. Eli Lilly Co., 342 N.W.2d 37 (Wis. 1984). In Collins, the plaintiff's in utero e x p o su re to the drug diethylstilbestrol (DES) caused her to develop vaginal cancer. The p la in tif f could not identify "the precise producer or marketer of the DES taken by her mother d u e to the generic status of some DES, the number of producers or marketers or marketer of the DES taken by her mother due to the generic status of some DES, the number of producers o r marketers, the lack of pertinent records, and the passage of time." Collins, 342 N.W.2d a t 43. Stated another way, the plaintiff could not prove "legal causation between a

d e f e n d a n t's conduct and [her] injury," a required tort element at common law. Id. at 45. T h is was an "insurmountable obstacle" for the plaintiff. Id. O n the other hand, the court recognized that injuries caused by DES exposure were a serious societal problem. Id. "By the time that DES was banned for use in pregnancy in 1 9 7 1 , many women already had been exposed to DES during their mothers' pregnancies. . . . Thus, it is quite clear that in this case we are not dealing with an isolated, unique set of c irc u m s ta n c es which will never occur again." Id. Accordingly, the court recognized that it w a s "faced with a choice of either fashioning a method of recovery for the DES case which w ill deviate from traditional notions of tort law, or permitting possibly negligent defendants

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to escape liability to an innocent, injured plaintiff. In the interests of justice and fundamental f a irn e ss , " the court chose "the former alternative." Id. In doing so, the court relied upon A rticle I, Section 9 of the Wisconsin Constitution, which allows courts in Wisconsin to " f a s h io n an adequate remedy" if none otherwise exists. Id.2 T h e court surveyed a variety of different recovery theories, including alternative lia b ility,3 concerted action,4 and enterprise liability.5 Ultimately, the court adopted a

m o d if ie d version of market share liability, originally espoused by the California Supreme C o u rt in a DES case, Sindell v. Abbott Labs., 607 P.2d 924 (Cal. 1980). In Sindell, as in C o llin s , the plaintiff could not identify the DES manufacturer that caused her injury. Instead o f denying recovery, the court acknowledged that "some adaptation of the rules of causation a n d liability may be appropriate in these recurring circumstances." Sindell, 607 P.2d at 936 (c itin g Escola v. Coca Cola Bottling Co., 150 P.2d 436 (Cal. 1944) (Traynor, J., c o n c u rrin g )). As between "an innocent plaintiff and negligent defendants, the latter should b e a r the cost of the injury." Id. The plaintiff "is not at fault in failing to provide evidence of c a u sa tio n , and although the absence of such evidence is not attributable to the defendants eith er, their conduct in marketing a drug the effects of which are delayed for many years p la ye d a significant role in creating the unavailability of proof." Id.

"Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his p e r s o n , property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and w ith o u t denial, promptly and without delay, conformably to the laws." W is . Const. art. I, § 9.
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Summers v. Tice, 199 P.2d 1 (Cal. 1948). Restatement (Second) of Torts § 876 (1979). Hall v. E.I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y. 1972).

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T h e Wisconsin Supreme Court did not "question the fundamental fairness of Sindell's sh ifting the burden of proof to the defendants," but concluded that the market share theory f o r apportioning damages should not be adopted primarily because of the "practical difficulty o f defining and proving market share." Collins at 48.6 Therefore, instead of a pure market s h a re theory, the court adopted what came to be known as the risk contribution rule. "Each d e f en d a n t contributed to the risk of injury to the public and, consequently, the risk of injury to individual plaintiffs. . . . Thus each defendant shares, in some measure, a degree of c u lp a b ility . . ." Id. at 49 (emphasis in original). The "possibly responsible" drug companies w e re in a better position than the injured plaintiff to absorb the cost of the injury, either by in s u rin g against liability or passing the cost along to the public. Id. The court rejected a m o r e expansive version of the risk contribution rule which apportioned damages amongst " a ll defendants that created unreasonable risks according to the magnitude of the risks they c re a te d ." Id. at 50 n.10. "We still require it to be shown that the defendant drug company re a so n a b ly could have contributed in some way to the actual injury." Id. In a DES case under the risk contribution rule, the court emphasized that the plaintiff d id not need to prove that a defendant produced or marketed the precise DES taken by the p la in tif f 's mother. Id. at 50. "Rather, the plaintiff need only establish by a preponderance o f the evidence that a defendant produced or marketed the type (e.g., color, shape, markings, s iz e , or other identifiable characteristics) of DES taken by the plaintiff's mother." Id. at 50

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However, the court still considered market share to be a "relevant factor in apportioning liability among

d e fe n d a n ts . " Collins v. Eli Lilly Co., 342 N.W .2 d 37, 49 (Wis. 1984).

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( e m p h a s is in original). If the plaintiff establishes a prima facie case, the burden of proof s h if ts to the defendant to prove by a preponderance of the evidence that it did not produce o r market the subject DES either during the time period the plaintiff was exposed to DES or in the relevant geographical market area in which the plaintiff's mother acquired the DES. Id . at 52. "We believe that this procedure will result in a pool of defendants which it can re a so n a b ly be assumed could have caused the plaintiff's injuries. . . . This still could mean th a t some of the remaining defendants may be innocent, but we accept this as the price the d e f e n d a n ts, and perhaps ultimately society, must pay to provide the plaintiff an adequate re m e d y under the law." Id.7 B. T w e n ty years later, drawing on Collins' observation that the risk contribution rule " c o u ld apply in situations which are factually similar to the DES cases," Id. at 49, the W isc o n sin Supreme Court applied the risk contribution rule to white lead carbonate pigment. T h o m a s ex rel. Gramling v. Mallett, 701 N.W. 2d 523 (Wis. 2005). Wisconsin is the only s ta te to adopt this theory of recovery for plaintiffs injured by ingesting white lead carbonate.

In addition to W is c o n s in , market share liability (or a version thereof) was adopted for DES cases in New York, W a s h i n g t o n , Florida, and California. See City of Philadelphia v. Lead Indus. Ass., Inc., 994 F.2d 112, 124 n.10 (3d Cir. 1 9 9 3 ) (collecting cases). Market share was explicitly rejected for DES cases by Ohio, Rhode Island, Illinois, Iowa, and M i s s o u r i . Id. at 126 n.12 (collecting cases); Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio 1998). Except in DES c a s e s , market share liability was "met with virtually universal rejection by the courts during the quarter-century following t h e Sindell decision." Donald G. Gifford, The Challenge to the Individual Causation Requirement in Mass Products T o r t s , 62 W a s h . & Lee L. Rev. 873, 903 (2005); see, e.g., Gaulding v. Celotex Corp., 772 S.W .2 d 66 (Tex. 1989) ( a s b e s t o s ) ; Black v. Abex Corp., 603 N.W . 2 d 182 (N.D. 1999) (asbestos); Skipworth v. Lead Indus. Ass'n, 690 A.2d 169 ( P a . 1997) (lead pigment); Hamilton v. Berretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001) (firearms); Bly v. TriC o n tin e n t a l Indus., Inc., 663 A.2d 1232 (D.C. 1995) (benzene).

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In Thomas, the plaintiff alleged that he suffered lead poisoning by ingesting white lead c a rb o n a te pigment contained in paint at homes he lived in as a child. Like the plaintiff in C o llin s , Thomas was "unable to identify the precise producer of the white lead carbonate p ig m e n t he ingested at his prior residences due to the generic nature of the pigment, the n u m b e r of producers, the lack of pertinent records, and the passage of time." 701 N.W.2d a t 532. E v e n though Thomas had a remedy for his injuries against his landlords,8 the court e x te n d e d the risk contribution rule to promote recovery against white lead carbonate pigment m a n u f ac tu re rs (or their successors-in-interest). Along the lines of Collins, the Thomas court re a so n e d that the plaintiff was an "innocent plaintiff who is probably not at fault and will be f o rc e d to bear a significant cost of his injuries if he is not allowed to sue the possibly n e g lig e n t Pigment Manufacturers." Id. at 558. The problem of "lead poisoning from white lea d carbonate is real; it is widespread; and it is a public health catastrophe that is poised to lin g e r for quite some time." Id. Just like in Collins, the defendants contributed to the risk o f injury, but the court went farther, reasoning that many of the defendants (or their p re d e ce ss o rs -in -in te re st) "knew of the harm white lead carbonate pigments caused and c o n tin u e d production and promotion of the pigment notwithstanding that knowledge." Id. T h e court relied upon the plaintiff's historical experts who concluded that "by the 1920s the

This distinguished the case from Collins, but the court held that Article I, Section 9 of the W i s c o n s i n c o n s titu tio n did not bar extension of the risk contribution rule. "The Collins court was concerned with more than just e n s u r in g a plaintiff had a remedy against someone for something. Instead, the Collins court wrote that Article I, Section 9 h a d been interpreted in a manner that allowed the court to fashion an adequate remedy when one did not exist." Thomas e x rel. Gramling v. Mallett, 701 N.W . 2d 523, 552 (Wis. 2005) (emphases in original).

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e n tire industry knew or should have known of the dangers of its products and should have c e as e d producing the lead pigments, including white lead carbonate." Id. Accordingly, the d e f en d a n ts were culpable for, "at a minimum, contributing to creating a risk of injury to the p u b lic ." Id. Also as in Collins, the defendants were in a better position to absorb the cost o f the injury. Id. It was "better to have the Pigment Manufacturers or consumers share the c o st of the injury rather than place the burden on the innocent plaintiff." Id. T h e defendants (referred to as the Pigment Manufacturers) argued that risk c o n trib u tio n shouldn't apply because Thomas could not identify which of the three types of w h ite lead carbonate he ingested. Unlike DES, white lead carbonate is not "fungible" or m a n u f a c tu r e d from a chemically identical formula. The court rejected this argument because " th e formulas for both DES and the white lead carbonate are in a sense on the same footing a s being inherently hazardous." Id. at 559-60. It would be "imprudent to conclude that c h e m ic a l identity is a touchstone for fungibility and, in turn, for the risk-contribution theory." Id . at 560. "It is the common denominator in the various white lead carbonate formulas that m a tte rs ; namely, lead." Id. at 562. T h e Pigment Manufacturers also argued that the paint allegedly ingested "could have b e e n applied at any time between construction of the two houses [the plaintiff lived in] in 1 9 0 0 and 1905 and the ban on lead paint in 1978." Id. at 562. This "significant time span" g re a tly exceeds the nine-month window during which a plaintiff's mother would have taken D E S . The court rejected this argument because "the window will not always be potentially a s large as appears in this case. Even if it routinely will be, the Pigment Manufacturers'

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a rg u m e n t must be put into perspective: they are essentially arguing that their negligent c o n d u c t should be excused because they got away with it for too long." Id. T h e Pigment Manufacturers continued by arguing that Thomas's lead poisoning could h a v e been caused from many different sources, including "ambient air, many foods, drinking w a te r, soil, and dust." Id. at 563. Further, unlike in DES cases, lead poisoning does not p ro d u c e a "signature injury." The court was unconvinced. "Harm is harm, whether

`s ig n a tu re ' or otherwise." Id. at 563. "While Collins concerned a plaintiff who had injuries o f a `signature' nature, that merely means that Thomas may have a harder case to make to h is jury. Further, while the Pigment Manufacturers are correct to argue that Thomas's lead p o i s o n in g could have come from any number of sources, that is an argument to be made b e f o re the jury." Id. F in a lly, the court rejected the Pigment Manufacturers' argument that they were not in exclusive control of the risk their product created. "First, as doctors were the ones who p re sc rib e d the dosage of DES, so too were the paint manufacturers that mixed the amount o f white lead carbonate in the paint." Id. However, those who mixed paint did not alter the to x ic ity of the white lead carbonate, just like the pharmacist did not alter the toxicity of DES b y filling a prescription. Moreover, the Pigment Manufacturers "actually magnified the risk th ro u g h their aggressive promotion of white lead carbonate, even despite the awareness of th e toxicity of the lead. In either case, whoever had `exclusive' control over the white lead c a rb o n a te is immaterial." Id. at 563-64.

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W ith respect to negligence claims, since the plaintiff "cannot prove the specific type o f white lead carbonate he ingested, he need only prove that the Pigment Manufacturers p ro d u c e d or marketed white lead carbonate for use during the relevant time period: the d u ra tio n of the houses' existence." Id. at 564. As to strict liability claims, the plaintiff need o n ly prove that the "pigment manufacturer engaged in the business of producing or m a rk e tin g white lead carbonate . . ." Id. Once the plaintiff makes a prima facie case, "the b u rd e n of proof shifts to each defendant to prove by a preponderance of the evidence that it d id not produce or market white lead carbonate either during the relevant time period or in th e geographical market where the house is located." Id. If "relevant records do not exist th a t can substantiate either defense, `we believe that the equities of [white lead carbonate] c a s es favor placing the consequences on the [Pigment Manufacturers].'" Id. (quoting C o llin s ). The Pigment Manufactuers argued that use of the risk contribution theory for injuries caused by white lead carbonate pigment violated their procedural and substantive due process rig h ts .9 Instead of addressing these arguments, the court held as previously stated that they w e re not ripe for consideration and remanded the case for trial in light of its extension of the ris k contribution theory. Id. at 565. On remand, ARCO once again moved for summary ju d g m e n t on constitutional grounds. The circuit court denied the motion as premature and w ith o u t prejudice to renewal after trial. At trial, the jury returned a verdict finding that T h o m a s failed to prove that his injuries were caused by the ingestion of white lead carbonate
ARCO, as stated, now brings the same substantive due process challenge. See Enterprises v. Apfel, 524 U.S. 4 9 8 (1998); Thomas at 595 (Prosser, J., dissenting). ARCO does not raise a procedural due process challenge.
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p ig m e n t. Accordingly, the jury did not apply the risk contribution rule formulated by the W isc o n sin Supreme Court. I I I. A. Thomas generated a great deal of commentary and criticism.10 In one of two highly c ritic a l dissents, Justice Prosser predicted that Wisconsin would become "the mecca for lead p a in t suits." Thomas at 590. He was correct. In the wake of Thomas, over thirty cases were f ile d in state court by the same attorneys who represented the plaintiff in Thomas. D. 70, A f f id a v it of Bruce Kelly, ¶ 2; Tom Held and John Diedrich, Lead lawsuits go to U.S. Court, M ilw au k ee Journal Sentinel, May 1, 2007. Some of these cases, including the case at bar, w e re removed to federal court and are currently pending. Burton v. Am. Cyanamid, et al., C a se No. 07-CV-303 (LA) (E.D. Wis.); Owens v. Am. Cyanamid, et al., Case No. 07-CV-441 (L A ) (E.D. Wis.); Stokes v. Am. Cyanamid, et al., Case No. 07-CV-865 (LA) (E.D. Wis.). O n e case was dismissed without prejudice, re-filed in federal court and is currently pending. S ifu e n te s v. American Cyanamid, et al., Case No. 10-CV-75 (LA) (E.D. Wis.). Two cases a re currently pending in state court. Clark v. 3738 Galena LLC, et al., Case No. 06-CV1 2 6 5 3 (Milwaukee County Circuit Court); Godoy v. E.I. Dupont, et al., Case No. 06-CV-277 (M ilw a u k e e County Circuit Court). The remaining cases were dismissed without prejudice.
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See Richard Esenberg, A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court (2007) ( F e d e r a l i s t Society W h i t e Paper); Diane S. Sykes, Hallows Lecture: Reflections on the Wisconsin Supreme Court, 89 M a r q . Law Rev. 723, 728-31 (2006); Donald G. Gifford, The Death of Causation, 41 W a k e Forest L. Rev. 943, 985-88 ( 2 0 0 6 ) ; Laura W o r le y, The Iceberg Emerged: Wisconsin's Extension of Risk Contribution Theory Beyond DES, 90 Marq. L . Rev. 383 (2006); Michael B. Brennan, Are Courts Becoming Too Activist? Wisconsin's Supreme Court Has Shown a W o r r is o m e Turn In That Direction, Milwaukee Journal Sentinel, Oct. 2, 2005; Donald G. Gifford, The Challenge to the I n d i v i d u a l Causation Requirement in Mass Products Torts, 62 W a s h . & Lee L. Rev. 873, 903-08 (2005).

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D . 70-7, Exhibit 7 (listing cases and status as of September 15, 2009). ARCO is (or was) a d ef en d an t in all but two of the lead paint cases filed after Thomas. Godoy; Hardison v. E.I. D u P o n t De Nemours & Co. et al., 06-CV-606 (Milwaukee County Circuit Court). B. A s noted, the instant lawsuit was originally filed in Milwaukee County Circuit Court. T h e original complaint named the State of Wisconsin, Department of Health and Family S e rv ice s as a defendant. On March 22, 2007, the circuit court endorsed a stipulation that the M ilw a u k e e County Department of Health and Human Services should be substituted for the S tate of Wisconsin as the proper party pursuant to Wis. Stat. § 803.03(2)(a)(any "public a s s is ta n c e recipient . . . asserting a claim against a 3rd party for which the public assistance p ro v id e r has a right of subrogation or assignment . . . shall join the provider as a party to the c la im " ). Defendants removed in April 2007, but Gibson moved for remand. On July 11, 2007, th is Court held that the substitution of Milwaukee County for the State of Wisconsin created c o m p le te diversity because Milwaukee County is a citizen of Wisconsin and should be a lig n e d as a plaintiff, not a defendant. Am. Motorists Ins. Co. v. Trane Co., 657 F.2d 146, 1 4 9 (7th Cir. 1981) (where "jurisdiction is based on diversity of citizenship, the court may a sc e rta in whether the alignment of the parties as plaintiff and defendant conforms with their tru e interests in the litigation"); Moor v. Alameda County, 411 U.S. 693, 717-18 (1973) (m u n icip al corporation is a corporation for diversity purposes). However, the Court

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re m a n d e d for failure to satisfy the amount in controversy requirement. Gibson v. Am. C y a n a m id , et al, No. 07-C-358 (E.D. Wis.) (D. 48). A f te r pursuing damages discovery in state court, the defendants removed again on S e p tem b e r 26, 2007.1 1 The plaintiff and his guardian ad litem are citizens of Wisconsin. All o f the corporate defendants are citizens of states other than Wisconsin. The presence of M ilw a u k e e County, as noted above, does not destroy diversity. The removing defendants a lle g e , and Gibson no longer disputes, that the amount in controversy exceeds $75,000. A c c o rd in g ly, the Court may exercise jurisdiction under the diversity statute. 28 U.S.C. § 1 3 3 2 (a). C. T h e federal cases were stayed for over a year pending a ruling from the Wisconsin S u p r e m e Court in Godoy ex rel. Gramling v. E.I. DuPont de Nemours & Co., 768 N.W.2d 6 7 4 (Wis. 2009).1 2 After the stay was lifted in July 2009, a flurry of motions were filed, in c lu d in g : (1) plaintiffs' motion to consolidate this case (No. 07-CV-864) with Case Nos. 07C V -3 0 3 , 07-CV-441 and 07-CV-865 before Judge Adelman; (2) plaintiffs' motion to strike th e affirmative defenses asserted by ARCO and the Sherwin-Williams Company; (3) A R C O 's motion for summary judgment; (4) plaintiffs' cross-motion for partial summary ju d g m e n t; and (5) the Sherwin-Williams Company's motion for the recusal of Judge

Stokes v. Am. Cyanamid, et al., Case No. 07-CV-865 (LA) (E.D. W i s . ) , followed the same path of removal, r e m a n d , and re-removal. Judge Stadtmueller issued the remand order, but he recused himself when the case was removed th e second time, and the case was eventually assigned to Judge Adelman.
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This ruling has no bearing on the motions now before the Court.

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A d e lm a n .1 3 The motions for summary judgment and the motions to strike were filed in all f o u r cases and they are identical in all material respects. A f te r Judge Adelman denied the motion to consolidate,14 this Court issued an order d e n yin g Gibson's motion to strike. The Court reasoned that the motion "essentially amounts to the argument that the constitutional affirmative defenses are insufficient as a matter of law. T h is may turn out to be the case, but a more appropriate vehicle for deciding the merits of th e se affirmative defenses is in the context of dispositive motions or trial." D. 107, at 3. IV . U n d er Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a m a tte r of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The "plain language of R u le 56(c) mandates the entry of summary judgment, after adequate time for discovery and u p o n motion, against a party who fails to make a showing sufficient to establish the existence o f an element essential to that party's case, and on which that party will bear the burden of p ro o f at trial." Celotex, 477 U.S. at 322. Gibson does not dispute any of the facts that are re lev a n t to ARCO's motion for summary judgment.

Sherwin-W illia m s argued that Judge Adelman should recuse himself based upon the opinions he expressed r e g a r d i n g Thomas in a law review article. Hon. Lynn Adelman, Exercising Judicial Power: A Response to the Wisconsin S u p r e m e Court's Critics, 91 Marq. L. Rev. 425, 446 (2007). Judge Adelman denied this motion on February 16, and the S e v e n t h Circuit affirmed. In re Sherwin-Williams Co., -- F.3d -- , 2010 W L 2244119 (7th Cir. June 7, 2010). Under the local rules of this judicial district, motions to consolidate "must be decided by the judge to whom th e lowest numbered case is assigned." Civil L.R. 42(a) (E.D. W is .) . Accordingly, the Court deferred ruling on any m o tio n s before it until Judge Adelman resolved the consolidation motion. Once Judge Adelman declined to take the case, th e Court addressed the pending motions.
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A. T h e potential imposition of liability under the risk contribution rule violates the c o n stitu tio n a l bar to retroactive liability expressed in Eastern Enterprises v. Apfel, 524 U.S. 4 9 8 (1998); Thomas at 595-96 (Prosser, J., dissenting). In Eastern Enterprises, the U.S. S u p r e m e Court considered a challenge under the Takings Clause and the Due Process Clause to the Coal Industry Retiree Health Benefit Act of 1992 (the Coal Act), 26 U.S.C. §§ 9 7 0 2 (a )(1 ), (2). The Coal Act was enacted in response to the problem created by "orphan re tiree s" in the coal industry who were promised lifetime health benefits under prior benefit p la n s. The Coal Act "merged the 1950 and 1974 Benefit Plans into a new multiemployer p la n " called the Combined Fund. E. Enters., 524 U.S. at 514. The Combined Fund provided s u b s ta n tia lly the same health benefits to retirees and their dependents as they were receiving u n d e r those plans. It was financed by "annual premiums assessed against `signatory coal o p era to rs,' i.e., coal operators that signed any [National Bituminous Coal Wage Agreement] [ N B C W A ] or any other agreement requiring contributions to the 1950 or 1974 Benefit P la n s." Id. Any signatory operator who "`conducts or derives revenue from any business a c tiv ity, whether or not in the coal industry,'" could be liable for those premiums. Id. Where a signatory was no longer involved in any business activity, premiums could be levied a g a in s t "related persons," including successors in interest and businesses or corporations u n d e r common control. Id. E a ste rn Enterprises conducted "extensive coal mining operations" until 1965, when it transferred its coal-related operations to a subsidiary, Eastern Associated Coal Corp.

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(E A C C ). Eastern retained its stock interest in EACC through a subsidiary corporation, Coal P r o p e rtie s Corp. (CPC), until 1987, when Eastern sold its interest in CPC to Peabody H o ld in g Company. When the Coal Act was enacted, Eastern was no longer involved in the c o a l industry, but it was "in business" within the meaning of the Coal Act. P u r s u a n t to the Coal Act, the Commissioner of Social Security assigned to Eastern the o b lig a tio n for Combined Fund premiums for over 1,000 retired miners who had worked for th e company before 1966, based on Eastern's status as the pre-1978 signatory operator for w h o m the miners had worked for the longest period of time. 26 U.S.C. § 9706(a)(3) (eligible b e n e fic ia ry assigned to signatory operator which employed the coal industry retiree in the c o a l industry for a longer period of time than any other signatory operator prior to the ef fe ctiv e date of the 1978 coal wage agreement). Eastern's premium for a 12-month period w a s $5 million. 1. A plurality of the Supreme Court, led by Justice O'Connor,15 held that the Coal Act v io la te d the Takings Clause as applied to Eastern. After surveying previous decisions that c o n sid e re d "constitutionality of somewhat similar legislative schemes," see Usery v. Turner E lk h o rn Mining Co., 428 U.S. 1 (1976), Pension Benefit Guar. Corp. v. R.A. Gray & Co., 4 6 7 U.S. 717 (1984), Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211 (1986), and C o n c re te Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 6 0 2 (1993), Justice O'Connor noted that those decisions "left open the possibility that

15

The plurality opinion was joined by Rehnquist, C.J., Scalia, J., and Thomas, J..

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le g is la tio n might be unconstitutional if it imposes severe retroactive liability on a limited c las s of parties that could not have anticipated the liability, and the extent of that liability is s u b s ta n tia lly disproportionate to the parties' experience." Id. at 524, 528-29. T h e plurality opinion proceeded to analyze the case as a regulatory taking. First, the p lu ra lity concluded that the economic impact of the regulation was substantial. Eastern's c u m u la tiv e payments under the Act were estimated between $50 and $100 million. Id. at 5 2 9 . Next, the plurality reasoned that this liability was not "proportional" to Eastern's e x p e r ie n c e with the plans. While Eastern "contributed to the 1947 and 1950 W&R Funds, it ceased its coal mining operations in 1965 and neither participated in negotiations nor a g re e d to make contributions in connection with the Benefit Plans under the 1974, 1978, or s u b s e q u e n t NBCWA's." Id. at 530. It was only the "latter agreements" that first suggested th e industry commitment to the funding of lifetime health benefits for retirees and their fa m ily members. Even though EACC continued coal mining through 1987 as a subsidiary o f Eastern, Eastern's liability under the Act bore "no relationship to its ownership of EACC; th e Act assign[ed] Eastern responsibility for benefits relating to miners that Eastern itself, not E A C C , employed. . . ." Id. "Although Eastern at one time employed the Combined Fund b e n e f icia rie s" assigned under the Coal Act, the "correlation between Eastern and its liability to the Combined Fund" was tenuous, and the amount assessed against Eastern resembled a c a l c u l a tio n "made in a vacuum." Id. at 531 (citing Connolly, 475 U.S. at 225). Eastern's o b lig atio n s under the Act depended "solely on its roster of employees some 30 to 50 years

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b e f o re the statute's enactment, without regard to any responsibilities that Eastern accepted u n d e r any benefit plan the company itself adopted." Id. A c c o rd in g ly, the Coal Act "substantially interfere[d] with Eastern's reasonable in v e s tm e n t-b a c k e d expectations" by reaching back "30 to 50 years to impose liability . . . b a se d on the company's activities between 1946 and 1965." Id. at 532. The Coal Act o p e ra ted "retroactively, divesting Eastern of property long after the company believed its lia b iliti e s . . . to have been settled." Id. at 534. When a remedy "singles out certain e m p lo ye rs to bear a burden that is substantial in amount, based on the employers' conduct fa r in the past, and unrelated to any commitment that the employers made or to any injury th e y caused, the governmental action implicates fundamental fairness principles underlying th e Takings Clause." Id. at 537. Therefore, the plurality concluded that the Coal Act's a p p lic a tio n to Eastern effected an unconstitutional taking. 2. In a concurring opinion, Justice Kennedy found that the Coal Act should be in v a lid a te d under the Due Process Clause, not the Takings Clause. "The law simply imposes a n obligation to perform an act, the payment of benefits. . . . To call this sort of governmental a c tio n a taking as a matter of constitutional interpretation is both imprecise and, with all due re sp e c t, unwise." Id. at 540 (Kennedy, J., concurring). The injury suffered by Eastern was " so unlike the act of taking specific property that it is incongruous to call the Coal Act a ta k in g , even as that concept has been expanded by the regulatory takings principle." Id. at 5 4 2 . Justice Kennedy chided the plurality for its failed attempt to "avoid making a normative

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ju d g m e n t about the Coal Act. . . . The imprecision of our regulatory takings doctrine does o p e n the door to normative considerations about the wisdom of government decisions." Id. a t 544-45. "This sort of analysis is in uneasy tension with our basic understanding of the T a k in g s Clause, which has not been understood to be a substantive or absolute limit on the g o v e rn m e n t's power to act." Id. at 545. The Takings Clause is a "conditional limitation, p e r m ittin g the government to do what it wants so long as it pays the charge. The Clause p re su p p o s e s what the government intends to do is constitutional." Id. J u s tic e Kennedy's analysis proceeded under the Due Process Clause, which "requires an inquiry into whether in enacting the retroactive law the legislature acted in an arbitrary a n d irrational way." Id. at 547. If retroactive laws "change the legal consequences of tra n sa c tio n s long closed, the change can destroy the reasonable certainty and security which a re the very objects of property ownership." Id. at 548. Justice Kennedy concluded that "the re m e d y created by the Coal Act bears no legitimate relation to the interest which the G o v e rn m e n t asserts in support of the statute. . . . As the plurality explains today, in creating lia b ility for events which occurred 35 years ago the Coal Act has a retroactive effect of u n p re c ed e n te d scope." Id. at 549. Retroactivity was unjustified because the Coal Act was n o t designed to impose an "actual, measurable cost" of business which was avoided in the p a s t. Id. "As the plurality opinion discusses in detail, the expectation was created by p ro m is e s and agreements made long after Eastern left the coal business. Eastern was not re sp o n s ib le for the resulting chaos in the funding mechanism caused by other coal companies le a v in g the framework of the [NBCWA]." Id. at 550. Accordingly, the Coal Act's

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a p p lic a tio n to Eastern was "far outside the bounds of retroactivity permissible under our la w ," representing "one of the rare instances" where the permissive standard of due process w a s violated. Id. at 550. 3. In dissent, Justice Breyer16 agreed with Justice Kennedy that the appropriate c o n stitu tio n a l analysis was under the Due Process Clause, not the Takings Clause. A p p lic a tio n of the Takings Clause "bristles with conceptual difficulties," but the Court "need n o t face these difficulties . . . for there is no need to torture the Takings Clause to fit this case. T h e question involved ­ the potential unfairness of retroactive liability ­ finds a natural home in the Due Process Clause . . ." Id. at 556 (Breyer, J., dissenting). Due process "can offer p r o te c tio n against legislation that is unfairly retroactive at least as readily as the Takings C lau se might, for as courts have sometimes suggested, a law that is fundamentally unfair b e c au s e of its retroactivity is a law that is basically arbitrary." Id. at 557. Justice Breyer d is m is s e d the plurality's "fear of resurrecting" the substantive due process era of Lochner v . New York, 198 U.S. 45 (1905) as "misplaced." Id. T o find that the Due Process Clause protects against this kind of f u n d a m e n tal unfairness ­ that it protects against an unfair a llo c a tio n of public burdens through this kind of specially a rb itra ry retroactive means ­ is to read the Clause in light of a b a s ic purpose: the fair application of law, which purpose h e a rk e n s back to the Magna Carta. It is not to resurrect longd is c re d ite d substantive notions of `freedom of contract.'

16

Justice Breyer was joined by Stevens, J., Souter, J., and Ginsburg, J..

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Id . at 558 (emphasis in original). Accordingly, like the plurality, Justice Breyer would " in q u ire if the law before us is fundamentally unfair or unjust," but he would "ask this q u e stio n because, like Justice Kennedy," he believed that "if so, the Coal Act would `d e p riv e ' Eastern of `property, without due process of law.'" Id. (emphasis in original). U n lik e Justice Kennedy and the plurality, Justice Breyer concluded that the Coal Act w a s not "fundamentally unfair or unjust" as applied to Eastern. "The substantive question b e f o re us is whether or not it is fundamentally unfair to require Eastern to make future p aym en ts for health care costs of retired miners and their families, on the basis of Eastern's p a s t association with these miners." Id. at 558-59 (emphases in original). Justice Breyer re lied on the fact that the liability was only for miners that Eastern employed in the past. " I n s o f a r as working conditions created a risk of future health problems for those miners, E a ste rn created those conditions." Id. at 560. Justice Breyer also disagreed with the h is to ric a l analysis of the plurality and Justice Kennedy regarding the "promise" to coal w o rk e rs before Eastern withdrew from the industry in 1965. "That `promise,' even if not c o n tra c tu a lly enforceable, led the miners to `develo[p]' a reasonable `expectation' that they w o u ld continue to receive `[retiree] medical benefits.'" Id. at 560-61. Finally, Justice Breyer n o te d that Eastern continued to receive profits from the coal mining industry after 1965 th ro u g h its subsidiary. Id. at 565. Therefore, according to Justice Breyer, Eastern could not sh o w a "sufficiently reasonable expectation that it would remain free of future health care c o s t liability for the workers whom it employed. Eastern has therefore failed to show that th e law unfairly upset its legitimately settled expectations." Id. at 567-68.

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B. E v e n though Eastern Enterprises invalidated a legislative imposition of retroactive lia b ility, the constitutional principles expressed therein apply with equal force to the p ro s p e c tiv e application of a common law rule in a civil lawsuit. "The federal guaranty of d u e process extends to state action through its judicial as well as through its legislative, e x e cu tiv e , or administrative branch of government." Shelley v. Kramer, 334 U.S. 1, 15 (1 9 4 8 ); Ownbey v. Morgan, 256 U.S. 94, 111 (1921); BMW of North Am., Inc. v. Gore, 517 U .S . 559, 573 n.17 (1996) ("State power may be exercised as much by a jury's application o f a state rule of law in a civil lawsuit as by a statute"); New York Times Co. v. Sullivan, 376 U .S . 254, 265 (1964) (it is not "the form in which state power has been applied" that matters " b u t, whatever the form, whether such power has in fact been exercised"). The exercise of ju d ic ia l power to apply a state rule of law is subject to constitutional restraints.17 G ib s o n argues that Eastern Enterprises cannot be used to invalidate Thomas' re tro a c tiv e effect because the development of the common law is presumptively retroactive. " T h e principle that statutes operate only prospectively, while judicial decisions operate re tro s p e c tiv e ly, is familiar to every law student." United States v. Sec. Indus. Bank, 459 U.S. 7 0 , 79 (1982). Gibson relies on Harper v. Va. Dep't of Taxation, 509 U.S. 86 (1993), which

The Court presumes that its application of judicial power is subject to the Fourteenth Amendment rather than t h e Fifth Amendment. Cf. Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 664-65 (7th Cir. 1986) (federal court sitting in diversity must ask if exercise of jurisdiction would violate due process under the Fourteenth Amendment). The a n a l y s i s is the same under either provision. See Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137 (7th Cir. 1975) ( "w e can perceive no operative difference between the concept of due process as applied to the states and as applied to the f e d e r a l government"); Hampton v. Dillard Dept. Stores, Inc., 18 F. Supp. 2d 1256, 1276 n.14 (D. Kan. 1998) ("Federal c o u r ts have suggested that the Fifth Amendment due process protection would apply `equally to the review of punitive d a m a g e s awarded in federal court'") (quoting Lee v. Edwards, 101 F.3d 805, 809 n.2 (2d Cir. 1996)).

17

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h e ld : "When this Court applies a rule of federal law to the parties before it, that rule is the c o n tro llin g interpretation of federal law and must be given full retroactive effect in all cases s till open on direct review and as to all events, regardless of whether such events predate or p o s td a te our announcement of the rule." 509 U.S. at 97. Harper does not apply because the U n ited States Supreme Court's interpretation of federal law is not at issue. Moreover, with re g a rd to its own decisions, the Wisconsin Supreme Court does not even follow the Harper s ta n d a rd . Trinity Petroleum, Inc. v. Scott Oil Co., Inc., 735 N.W.2d 1, 17 (Wis. 2007). Even if the Wisconsin Supreme Court did apply Harper to determine the retroactive impact of its o w n judicial rulings, indeed no matter what standard the Wisconsin Supreme Court applies, th e retroactive application of rulings made by the state judiciary is a matter of state law. The p re su m e d retroactive application of a common law judicial decision cannot circumvent c o n s titu tio n a l implications when the rule expressed by that decision is applied. Accordingly, it is not surprising that the United States Supreme Court considers due p ro c e ss principles in the context of the retroactive application of common law judicial rulings w ith o u t regard to the presumptive retroactive effect of those rulings. For example, in Bouie v . City of Columbia, 378 U.S. 347 (1964), the Supreme Court considered the judicial e x p a n sio n of a trespass statute. As written, the statute made it a crime to enter onto property a f te r receiving notice that entry was prohibited, but the state court expanded it to encompass situ atio n s where an individual remains on the property after being asked to leave. The Court h e ld that the retroactive application of the state court's decision violated due process. "If a ju d ic ia l construction of a criminal statute is `unexpected and indefensible by reference to the

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la w which had been expressed prior to the conduct in issue,' it must not be given retroactive e f f e c t." Bouie, 378 U.S. at 354. Similarly, in Rogers v. Tennessee, 532 U.S. 451 (2001), the C o u rt considered the judicial abrogation of the "year and a day" rule, which provided that n o defendant could be convicted of murder unless his victim had died by the defendant's act w ith in a year and a day of the act. Distinguishing Bouie, the court held that due process p rin c ip les were not violated by the retroactive abolition of the rule. "There is, in short, n o th i n g to indicate that the Tennessee court's abolition of the rule in petitioner's case r e p re s e n te d the sort of unfair and arbitrary judicial action against which the Due Process C la u s e aims to protect." Rogers, 532 U.S. at 466-67. The due process principles applied in cases like Rogers and Bouie are in many ways distinct from the due process principles that w e re at issue in Eastern Enterprises. However, Rogers and Bouie illustrate that the

r e tr o a c tiv e application of judicial rulings cannot trump due process concerns. C. E a s te rn Enterprises was of course a fragmented decision, meaning that five Justices c o n c u rre d in the judgment but did not agree upon a single rationale for the result. "When a f r a g m e n te d Court decides a case and no single rationale explaining the result enjoys the a ss e n t of five Justices, `the holding of the Court may be viewed as that position taken by th o s e Members who concurred in the judgments on the narrowest grounds.'" Marks v. U n ite d States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1 9 7 6 )). Courts continue to follow the Marks approach, but the Supreme Court signaled that it should not be applied in every case involving a fragmented opinion. "We think it not

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u s e f u l to pursue the Marks inquiry to the utmost logical possibility when it has so obviously b a f fle d and divided the lower courts that have considered it." Nichols v. United States, 511 U .S . 738, 745-46 (1994). A p p e lla te courts have applied Marks to Eastern Enterprises with varying results. The D .C . Circuit rejected an attempt to "cobble together a due process holding from Eastern E n te rp r is e s' fragmented parts." Ass'n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1 2 4 6 , 1254 (D.C. Cir. 1998). "We have previously held that the rule of Marks . . . does not a p p l y unless the narrowest opinion represents a `common denominator of the Court's re a so n in g ' and `embod[ies] a position implicitly approved by at least five Justices who s u p p o rt the judgment.'" Id. (internal citations omitted). The court found that Justice K e n n e d y's due process analysis "clearly does not meet this standard because he alone was w illin g to invalidate economic legislation on the ground that it violated the Due Process C la u s e . And, as should be obvious, Justice Kennedy's due process reasoning can in no sense b e thought a logical subset of the plurality's takings analysis." Id. at 1254-55. See also U n ite d States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003); Anker Energy C o r p . v. Consolidation Coal Co., 177 F.3d 161 (3d Cir. 1999). Other courts observe that the T a k in g s Clause analysis is inapplicable because a majority of justices "concluded that a T a k in g s Clause issue can arise only after a plaintiff's property right has been independently e sta b lis h e d ." Parella v. Ret. Bd. of Rhode Island Employees' Ret. Sys., 173 F.3d 46, 58 (1st C ir. 1999) (citing E. Enters., Kennedy, J., concurrence and Breyer, J., dissent); see also C o m m o n w e a lth Edison Co. v. United States, 271 F.3d 1327, 1340 (Fed. Cir. 2001) (en banc)

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(" T h u s five justices of the Supreme Court in Eastern Enterprises agreed that regulatory a c tio n s requiring the payment of money are not takings"); Unity Real Estate Co. v. Hudson, 1 7 8 F.3d 649, 659 (3d Cir.) ("[W]e are bound to follow the five-four vote against the takings c la im in Eastern"), cert. denied, 528 U.S. 963 (1999); Holland v. Big River Minerals Corp., 1 8 1 F.3d 597, 606 (4th Cir. 1999), cert. denied, 528 U.S. 1117 (2000). S h ed d in g more light on the subject is the First Circuit's observation that after Marks, " se v e ra l members of the Court have indicated that whenever a decision is fragmented such th a t no single opinion has the support of five Justices, lower courts should examine the p lu ra lity, concurring and dissenting opinions to extract the principles that a majority has e m b r a c e d ." United States v. Johnson, 467 F.3d 56, 65 (1st Cir. 2006). The Seventh Circuit a p p e are d to endorse such an approach in United States v. Gerke Excavating, Inc., 464 F.3d 7 2 3 (7th Cir. 2006) (analyzing the plurality, concurring, and dissenting opinions in Rapanos v . United States, 547 U.S. 715 (2006)). Using this approach, the Court agrees that a case in v o l v in g the imposition of retroactive liability should not be analyzed as a taking because o f the five to four alignment of the justices in Eastern. See Parella; Commonwealth Edison C o .; Unity Real Estate. The obvious corollary is that five of the justices perceived the p ro b le m of retroactive liability as a substantive due process issue. Note, Substantive Due P r o c e s s Since Eastern Enterprises, With New Defenses Based on Lack of Causative Nexus: T h e Superfund Example, 32 B.C. Envtl. Aff. L. Rev. 395, 415-16 (2005) ("If one counts the v o te s, however, a majority opinion ­ composed of Justice Breyer's dissent and Justice

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K e n n e d y's concurrence ­ held that substantive due process, and not takings, is the ap p rop riate analysis for government actions against a private party"). G o i n g further, even though the plurality labeled their analysis as a takings analysis, " th e rationale employed in the [plurality and in Justice Kennedy's concurrence] is strikingly s im ila r." Swisher Int'l, Inc. v. Schafer, 550 F.3d 1046, 1059 n.12 (11th Cir. 2008); see also U n ite d States Fid. & Guar. Co. v. McKeithen, 226 F.3d 412, 420 (5th Cir. 2000) ("Justice K e n n e d y's due process analysis focuses on retroactivity and is essentially harmonious with th e reasoning of the other four justices"). Indeed, the Justices recognized as much in their o p in io n s . E. Enters. at 537 ("Our analysis of legislation under the Takings and Due Process C la u se s is correlated to some extent, and there is a question whether the Coal Act violates d u e process in light of the Act's severely retroactive impact") (internal citation omitted); Id. at 548 ("Indeed, it is no accident that the primary retroactivity precedents upon which today's p lu ra lity opinion relies in its takings analysis were grounded in due process") (citing Turner E lk h o r n , R.A. Gray and Concrete Pipe) (Kennedy, J., concurring). The bottom line is that f iv e of the justices (indeed, all nine of the justices) generally agreed upon a substantive s ta n d a rd that should apply to retroactive liability, and five of the justices agreed that the liab ility imposed by the Coal Act upon Eastern violated that standard. Even if the Court is in c o rre c t in applying the First Circuit's approach to fragmented opinions, the "common view o f five Justices obviously carries persuasive authorities." Swisher, 550 F.3d at 1057 n.8. F o r the foregoing reasons, this Court will apply the following framework to analyze w h e th e r ARCO's potential liability under the risk contribution rule is unconstitutional. After

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s u rv e yi n g a series of opinions that were "grounded in due process," E. Enters. at 548 (K e n n e d y, J., concurring), the plurality observed that a liability "might be unconstitutional if it imposes (1) severe (2) retroactive liability on a (3) limited class of parties that (4) could n o t have anticipated the liability, and the extent of that liability is (5) substantially d is p ro p o rtio n a te to the parties' experience." Id. at 528-29; see also Maine Yankee Atomic P o w e r Co. v. United States, 44 Fed. Cl. 372, 378 (1999) (if Eastern Enterprises "does not s ta n d for a single, distinct approach to the problem before it, it nonetheless stands for a clear p rin c ip le: a liability that is severely retroactive, disruptive of settled expectations and wholly d iv o rc e d from a party's experience may not be constitutionally imposed"). This is simply a more specific way of saying what Justice Kennedy couched in due process terms: the im p o sitio n of retroactive liability is "arbitrary and irrational" if it bears "no legitimate re la ti o n to the interest which the Government asserts in support of the statute." E. Enters. at 547, 549 (Kennedy, J., concurring). T h e Court analyzes these factors in the framework it has adopted as follows: S e v e r ity . In Eastern Enterprises, the plaintiff faced potential liability "on the order o f $50 to $100 million" for retiree benefit contributions under the Coal Act. E. Enters. at 5 2 9 . Gibson requests an unspecified amount of damages in this case, but by way of c o m p a r is o n , the plaintiff in Thomas asked for damages in excess of $2 million dollars when th e case reached the jury. As it currently stands, ARCO is a defendant in seven cases that a re currently pending and a potential defendant in many more cases, including those that w e r e previously filed and then dismissed without prejudice. Accordingly, ARCO faces a

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se v e re financial burden in this lawsuit, and also through the cumulative impact of multiple la w s u its brought pursuant to the risk contribution rule. R e tr o a c tiv e liability. "Retroactivity is not favored in the law." Bowen v.

G e o rg e to w n Univ. Hospital, 488 U.S. 204, 208 (1988). It presents "problems of unfairness th a t are more serious than those posed by prospective legislation, because it can deprive c itiz e n s of legitimate expectations and upset settled transactions." General Motors Corp. v. R o m e in , 503 U.S. 181, 191 (1992). The risk contribution rule threatens to impose liability b a se d upon the operations of ARCO's predecessor-in-interest, IS&R, which stopped m a n u f a c tu rin g white lead carbonate pigment in 1946. Now, unlike then, ARCO (via IS&R) f a c e s liability for all of the injuries caused by white lead carbonate pigment in Wisconsin sim p ly by selling its products in Wisconsin. Accordingly, the risk contribution rule is re tro a c tiv e because it "attaches new legal consequences" to IS&R's manufacturing o p e ra tio n s that occurred between 1936 and 1946. Landgraf v. USI Film Products, 511 U.S. 2 4 4 , 270 (1994). If IS&R knew that it faced this expansive liability, it would have ensured th a t its products did not reach Wisconsin in the first instance and would have kept records to prove as much. Thomas at 564 (after plaintiff makes a prima facie case, defendant has b u rd e n of proof that it "did not produce or market white lead carbonate either during the re le v a n t time period or in the geographical market where the house is located"). Limited class of parties. The Coal Act "singles out certain employers to bear a

b u rd e n that is substantial in amount. . . ." E. Enters. at 537. Similarly, a small number of m a n u f ac tu re rs were responsible for the manufacture of white lead carbonate pigment in the

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U n ited States. D. 77, Kelly Aff. ¶ 33, Ex. 19 (Markowitz and Rosner Decl. ¶ 8). ARCO is th e successor to the liabilities of one of those companies. Thomas' "intricate tapestry of m a lf e as a n c e and culpability on the part of the lead paint industry as a whole," Thomas at 569 ( W ilc o x , J., dissenting), highlights Justice Kennedy's warning about the temptation to use re tro a c tiv e liability "as a means of retribution against unpopular groups or individuals." E. E n t e rs . at 548 (quoting Landgraf at 266) (Kennedy, J., concurring). U n a b le to anticipate/settled expectations. ARCO executed a series of transactions in 1973, 1977 and 1981 whereby it assumed the outstanding liabilities of the Anaconda C o m p a n y (and, by extension, IS&R). ARCO likely would not have completed these tran sac tio n s if it knew that it was assuming liability for injuries caused not just by IS&R's p r o d u c ts , but for harm caused by other white lead carbonate pigment manufacturers whose p ro d u c ts reached Wisconsin. The liability imposed by the risk contribution rule is disruptive o f ARCO's settled expectations. It was impossible for ARCO to anticipate the eventual a p p lic a tio n of the risk contribution rule to white lead carbonate pigment in Wisconsin. D is p r o p o r tio n a t e to experience. The risk contribution rule threatens liability that is completely unrelated and disproportionate to ARCO's experience. Under the risk

c o n trib u tio n rule, ARCO can be held liable for a product it "may or may not have produced, w h ic h may or may not have caused the plaintiff's injuries, based on conduct that may have o c c u rre d [when ARCO was] not even part of the relevant market." Thomas at 568 (Wilcox, J ., dissenting). ARCO faces this expansive liability not because of its own conduct, but s im p ly because of its legal status as successor to the liabilities of IS&R, which participated

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in the industry between 1936 and 1946 and may or may not have been responsible for p ro d u c ts that entered Wisconsin. A r b itr a r y and irrational. If it is a legitimate governmental objective to compensate c h ild h o o d victims of lead poisoning and fund health care benefits for retired coal miners, the g o v e rn m e n t cannot achieve those objectives through means that are arbitrary and irrational. E . Enters. at 547 (Kennedy, J., concurring). Use of the risk contribution rule to compensate G ib s o n for lead poisoning injuries does just that because it is arbitrary and irrational as a p p lie d to ARCO. In Turner Elkhorn, the Supreme Court rejected a due process challenge to the Black L u n g Benefits Act. The legitimate purpose of the Act was to "satisfy a specific need created b y the dangerous conditions under which the former employee labored to allocate to the mine o p e ra to r an actual, measurable cost of his business." Turner Elkhorn, 428 U.S. at 19. The " im p o s itio n of liability for the effects of disabilities bred in the past" was justified "as a ra tio n a l measure to spread the costs of the employees' disabilities to those who have profited f ro m the fruits of their labor ­ the operators and the coal consumers." Id. at 18.

A c c o rd in g ly, in Turner Elkhorn, there was a specific connection between coal operators and th e ir former employees ­ an employment relationship ­ which justified the imposition of re tro a c tiv e liability. Even in Eastern Enterprises, the proposed liability was limited to health c a re benefits for former employees. E. Enters. at 559 (Breyer, J., dissent). By contrast, under the risk contribution theory, the only potential connection between A R C O and Gibson is that ARCO's predecessor-in-interest IS&R "produced or marketed

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w h ite lead carbonate for use" at some point "during the relevant time period: the duration of th e houses' existence." Thomas at 564. Gibson does not allege when his home was built, b u t the Court can assume that it was built sometime before 1946, the year that IS&R stopped p ro d u c in g white lead carbonate pigment.18 The white lead carbonate that allegedly injured G ib s o n could have been applied at any time during that expansive time period, even when A R C O was no longer producing or marketing white lead carbonate. This raises a substantial p o ss ib ility that defendants "not only could be held liable for more harm than they actually c a u se d , but also could be held liable when they did not, in fact, cause any harm to plaintiff a t all." Santiago v. Sherwin Williams Co., 3 F.3d 546, 551 (1st Cir. 1993); Skipworth v. Lead In d u s . Ass., Inc., 690 A.2d 169, 173 (Penn. 1997) ("application of the market share theory to this situation would virtually ensure that certain pigment manufacturers would be held lia b le where they could not possibly have been a potential tortfeasor"). The risk contribution ru le imposes and apportions liability among the pigment manufacturers in a manner that is a rb itrar y and irrational. "Application of market share liability to lead paint cases such as this o n e would lead to a distortion of liability which would be so gross as to make determinations o f culpability arbitrary and unfair." Skipworth, 690 A.2d at 172. B e c a u se it is impossible to identify the manufacturer of the white lead carbonate p ig m e n t that caused a particular injury, it is also impossible to know whether ARCO or any o th e r defendant avoided liability for injuries caused by its own products. E. Enters. at 549

If the house was built after 1946, ARCO could evade liability under the risk contribution rule because it w o u ld not have been producing or marketing white lead carbonate pigment at any time during the relevant time period ( th e duration of the houses' existence).

18

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(K e n n e d y, J., concurring) (citing Turner Elkhorn at 19). Under the inherent logic of the risk c o n trib u tio n rule, the amount of actual harm caused by a particular defendant's products (if a n y) is speculative and immeasurable. Indeed, if the amount of liability avoided in the past c o u ld be measured, there would be no need for the risk contribution rule in the first instance. A c c o rd in g ly, the risk contribution rule does not impose an actual or measurable cost of b u s in e ss that was heretofore avoided. U ltim a te ly, while IS&R's involvement in the lead pigment industry may have in c re a se d the risk that Gibson would be exposed to a dangerous substance, the extent to w h ic h that risk was increased is unknowable, rendering the connection between Gibson and A R C O completely nonexistent. Simply put, by eliminating the traditional causation

r e q u ir e m e n t in tort for those who were injured by white lead carbonate pigment, the risk c o n tr ib u t io n rule imposes a burden that is unrelated to any injury that was actually caused b y ARCO and bears no legitimate relationship to the government's interest in compensating the victims of lead poisoning for their injuries. See Connolly, 475 U.S. at 229 ("the im p o sitio n of retroactive liability on employers for the benefit of employees may be arbitrary a n d irrational in the