Gibson v. American Cyanamid Co et al

Filing 391

ORDER signed by Judge Lynn Adelman on 11/8/19 granting 355 Motion to Dismiss for Lack of Jurisdiction. (cc: all counsel) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MANIYA ALLEN, et al.,
Plaintiffs,
v.

Case No. 11-CV-0055

AMERICAN CYANAMID CO, et al.,
Defendants;
ERNEST GIBSON,
Plaintiff,
v.

Case No. 07-CV-0864

AMERICAN CYANAMID CO, et al.,
Defendants;
DESIREE VALOE, et al.,
Plaintiffs,
v.

Case No. 11-CV-0425

AMERICAN CYANAMID CO, et al.,
Defendants.
DIJONAE TRAMMELL, et al.,
Plaintiffs,
v.

Case No. 14-CV-1423

AMERICAN CYANAMID CO, et al.,
Defendants.
ORDER
The plaintiffs in the above-captioned cases allege that they were harmed when, as
young children, they ingested paint containing white lead carbonate pigment (“WLC”).
Because they cannot identify the specific entities responsible for manufacturing and
marketing the WLC that harmed them, they proceed under the risk contribution theory of
liability, which was extended to WLC cases by the Wisconsin Supreme Court in Thomas
ex rel. Gramling v. Mallett, 285 Wis.2d 236 (Wis. 2005). Three such WLC risk-contribution
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cases—Burton v. American Cyanamid Co. et al., Case No. 07-CV-0303; Owens v.
American Cyanamid Co., et al., Case No. 07-CV-0441; and Sifuentes v. American
Cyanamid Co., et al., Case No. 10-CV-0075—were tried before me in a consolidated
action earlier this year. At the close of evidence in the Burton-Owens-Sifuentes trial,
defendant American Cyanamid Co. renewed a previously-filed motion for dismissal on
grounds that plaintiffs had not met their burden to establish the court’s personal
jurisdiction over Cyanamid. I granted the motion and dismissed Cyanamid. Cyanamid
now seeks dismissal from the above-captioned cases, also on the basis of a lack of
personal jurisdiction. In support of its motion, Cyanamid invokes the doctrine of issue
preclusion, also known as collateral estoppel. I find that the doctrine applies here such
that my jurisdictional ruling in the Burton action precludes further litigation of the
jurisdictional issue in the present cases. I will grant Cyanamid’s motion to dismiss on that
basis.
Federal common law determines the preclusive effect of a federal court judgment.
Taylor v. Sturgell, 553 U.S. 880, 891 (2008). Where, as here, the federal court sits in
diversity, federal common law “incorporates the rules of preclusion applied by the State
in which the rendering court sits.” Id. at n. 4 (citing Semtek Int’l Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 508 (2001); DeGuelle v. Camilli, 724 F.3d 933, 936-37 (7th Cir.
2013). 1 To determine whether issue preclusion bars a litigant’s claim, Wisconsin courts
apply a two step analysis: (1) they ask whether issue preclusion can, as a matter of law,

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I note that the period within which plaintiffs might appeal the judgment in favor of
Cyanamid has not yet elapsed; however, under Wisconsin law, “the pendency of an
appeal doesn’t suspend the preclusive effect of the judgment being appealed.” DeGuelle,
724 F.3d at 935 (citing Virnich v. Vorwald, 664 F.3d 2016, 216 and n.4 (7th Cir.
2011)(Wisconsin law)).
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be applied and, if so, (2) whether the application of issue preclusion would be
fundamentally fair. Rille v. Physicians Ins. Co., 300 Wis.2d 1, 19 (Wis. 2007).
The first step of this process—i.e., deciding whether issue preclusion can apply as
a matter of law—requires me to determine whether the issue was actually litigated and
determined by a valid and final judgment and whether its determination was essential to
the judgment. Id. at 20. Here, the question of the court’s jurisdiction over Cyanamid was
extensively litigated in the consolidated cases. It was the subject of multiple rounds of
pretrial briefing, deposition testimony, trial testimony, and additional briefing and oral
argument after the close of evidence. And the jurisdictional ruling was essential to—
indeed, the sole basis of—the judgment dismissing the action against Cyanamid.
In addition, because Cyanamid seeks to apply issue preclusion against litigants
who were not parties to the earlier proceeding, step one requires me to determine whether
the plaintiffs to the present proceedings were in privity with or had sufficient identity of
interest with the plaintiffs in the prior proceeding that application of issue preclusion
doctrine comports with due process. Paige K. B. ex rel. Peterson v. Steven G. B., 226
Wis.2d 210, 224 (Wis. 1999); State v. Miller. 274 Wis.2d 471, 486 (Wis.App. 2004). “A
litigant has a sufficient identity of interest with a party to a prior proceeding if the litigant’s
interests in the prior case can be deemed to have been litigated.” Paige K. B., 226 Wis.2d
at 226. As relevant here, the interest of plaintiffs Burton, Owens and Sifuentes in their
cases was to establish that a Wisconsin court could be an appropriate forum for an action
against Cyanamid based on its manufacture of white lead carbonate for use in paint in
the early 1970s. The plaintiffs’ interest in the present cases is exactly the same, at least
with respect to the question of my personal jurisdiction of Cyanamid. Therefore, applying

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issue preclusion doctrine to the issue of personal jurisdiction comports with due process
and is appropriate as a matter of law.
Having determined that the issue preclusion can be applied as a matter of law, I
proceed to the second step of the issue preclusion analysis and ask whether applying
issue preclusion would be “fundamentally fair.” Rille, 300 Wis.2d at 19. Wisconsin courts
generally consider the following five non-exclusive, non-dispositive factors in reaching
this determination:
(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?
Rille, 300 Wis. at 29. Cyanamid concedes that the first factor weighs in plaintiffs’ favor,
as the plaintiffs in the present cases cannot appeal the ruling against the plaintiffs in the
prior cases. Plaintiffs concede that the fourth factor weighs in favor of Cyanamid, as the
burdens of persuasion have not shifted. The parties dispute how to weigh the remaining
factors. I find that they weigh in favor of Cyanamid.

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Regarding the second factor, plaintiffs argue that the Supreme Court’s decisions
in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Bristol-Myers Squibb Co. v.
Superior Court of California, 137 S.Ct. 1773 (2017), shifted the law of personal jurisdiction
to focus more on a defendant’s contacts with a forum and the relationship between those
contacts and the claim at issue. Plaintiffs argue that their jurisdictional discovery was
conducted mostly in 2004-05, before the Supreme Court reached those decisions, and
they need an opportunity to conduct new discovery now that the standards have changed.
This argument is not persuasive. First, my jurisdictional ruling was based on principles
announced in Burger King Corp. v. Rudziewicz, 471 U.S. 462 (1985), and I specified that
the Supreme Court’s decision in Bristol-Myers Squibb did not change the analysis I
applied. See my discussion at No. 07-CV-0303, ECF # 1052 at 2-3. Second, when I
deferred ruling on jurisdiction in the Burton-Owens-Sifuentes cases until trial, I made clear
what standard I would apply; those plaintiffs then had another year before trial in which
they might have sought leave to take additional discovery on the issue of jurisdiction.
Given that the same counsel represents the plaintiffs in the present actions and those in
the previous actions and that historical discovery materials are shared among the
plaintiffs, I do not find that the shifts in law that the plaintiffs have identified render it unfair
for me to give preclusive effect to the jurisdictional ruling from the prior cases.
Regarding the third factor, plaintiffs argue that the quality of litigation of the
jurisdiction issue would be better in a new proceeding, because plaintiffs now understand
that the evidence proffered in the earlier case was not adequate, and they will take new
discovery and present new witnesses. But, again, their counsel had ample notice of the
jurisdictional standard to be applied in the Burton-Owens-Sifuentes action, and might

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have requested leave to take additional discovery if necessary. Again, given the shared
counsel, the tightly coordinated litigation strategy between the present and prior plaintiffs,
and the extensive opportunities given to the plaintiffs in the prior action to make their
jurisdictional case, fairness simply doesn’t require that this new set of plaintiffs be given
a fresh opportunity to establish jurisdiction.
Finally, regarding the fifth factor, the plaintiffs argue that it would be unfair to apply
issue preclusion because the plaintiffs in the Burton-Owens-Sifuentes action did not
understand that they were representing any other plaintiffs, and the court did not institute
any special procedures to protect the interests of non-parties. These arguments are
drawn, inappropriately, from federal common law; the Wisconsin law of preclusion
applicable here imposes no such requirements. Applying factor five as directed by
Wisconsin courts, I find that the plaintiffs in the Burton-Owens-Sifuentes action had an
adequate opportunity and a strong incentive to establish my jurisdiction over Cyanamid
in that initial action. It is not unfair to the present plaintiffs to give that jurisdictional ruling
preclusive effect. And, indeed, I find that public policy weighs against requiring Cyanamid
to keep litigating this issue, given the rigor with which the issue was litigated in advance
of the first-round trial.

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For the foregoing reasons, IT IS ORDERED that American Cyanamid Co.’s
motions for dismissal for lack of jurisdiction (No. 11-CV-0055, ECF # 327; No. 07-CV0864, ECF # 355; No. 11-CV-0425, ECF # 129; No. 14-CV-1423, ECF # 203) are
GRANTED.
Dated at Milwaukee, Wisconsin this 8th day of November, 2019.
s/Lynn Adelman_____
LYNN ADELMAN
U.S. District Judge

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