Allen et al v. American Cyanamid Co et al

Filing 183

DECISION AND ORDER signed by Judge Lynn Adelman on 1/26/16 denying 166 Motion For Certification of the Court's Decision on Personal Jurisdiction Under 28 U.S.C. §1292(b). (cc: all counsel) (dm)

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

Case No. 07-cv-0303

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

Case No. 07-cv-0441

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

Case No. 07-cv-0864

AMERICAN CYANAMID, et al.,
Defendants;
BRIONN STOKES,
Plaintiff,
v.

Case No. 07-cv-0865

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

Case No. 10-cv-0075

MANIYA ALLEN, et al.,
Plaintiffs,
v.

Case No. 11-cv-0055

AMERICAN CYANAMID, et al.,
Defendants;
DEZIREE VALOE, et al.,
Plaintiffs,
v.

Case No. 11-cv-0425

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

Case No. 14-cv-1423

AMERICAN CYANAMID, et al.,
Defendants.
_____________________________________________________________________
DECISION AND ORDER
Plaintiffs bring these negligence and failure to warn actions against various lead
paint and paint pigment manufacturers alleging they were harmed by ingesting lead paint
as children. I previously denied defendants’ motions to dismiss for lack of personal
jurisdiction and on other grounds. Defendants now ask me to certify the decision
concerning personal jurisdiction for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Under § 1292(b), I may certify an order for interlocutory appeal if I conclude that the
order “involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation.” In considering defendants’ motion, I consider four
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criteria: “there must be a question of law, it must be controlling, it must be contestable, and
its resolution must promise to speed up the litigation.” Ahrenholz v. Bd. of Trs. of the Univ.
of Ill., 219 F.3d 674, 675 (7th Cir. 2000). Defendants bear the burden of persuading me
that “exceptional circumstances justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.” Fisons Ltd. v. United States, 458
F.2d 1241, 1248 (7th Cir. 1972).
I rejected defendants’ argument that I lacked specific jurisdiction over defendants
because plaintiffs could not link their injuries to the product of an individual defendant. I
conclude, first, that this decision is not contestable. Section 1292(b) requires a “substantial”
ground for a difference of opinion, and I do not believe a substantial ground exists as to
justify immediate appeal. In the decision, I applied settled Supreme Court law on specific
jurisdiction, stating that the exercise of specific jurisdiction required findings that (1)
defendants “purposefully directed [their] activities at residents of” Wisconsin and (2) “the
litigation results from alleged injuries that arise out of or relate to those activities.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472–73 (1985) (internal quotations and citations
omitted). In analyzing the second element,1 I applied Seventh Circuit precedent providing
that whether an injury “arises out of or relates to” a defendant’s Wisconsin conduct is a
“litigation-specific” inquiry requiring plaintiff to show a causal link between the Wisconsin
conduct and “the allegedly tortious activity.” Advanced Tactical Ordinance Sys., LLC v.
Real Action Paintball, Inc., 751 F.3d 796, 801 (7th Cir. 2014). Plaintiffs rely on Wisconsin’s
risk contribution theory of liability which relaxes the causation standard and requires a
1

Most defendants did not contest the first element, purposeful availment, and
the present motion focuses on the second.
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plaintiff to prove only that defendants “contributed to the risk of injury to the public, and,
consequently, . . . to the individual plaintiffs.” Thomas ex rel. Gramling v. Mallett, 285 Wis.
2d 236, 289 (2005). Thus, I concluded that to establish that the suit arises out of or relates
to a defendant’s Wisconsin conduct, plaintiffs’ complaint needed only to plausibly allege
that defendants’ Wisconsin-directed activities contributed to the risk of injury. Plaintiffs
alleged that defendants directed activities at Wisconsin, that such activities contributed to
plaintiffs’ risk of lead poisoning in Wisconsin, and that plaintiffs’ injuries arose out of or
related to that conduct. Thus, plaintiffs pleaded what was required to establish specific
jurisdiction, and because this conclusion is supported by Supreme Court and Seventh
Circuit case law, I do not see a “substantial” ground for a difference of opinion on the issue.
Defendants make several opposing arguments. First, they contend that I should not
have distinguished the present case from various intentional tort cases they cited.
However, defendants misunderstand the reasoning underlying the distinction. The basis
for the distinction was not intentional versus non-intentional but rather the causation
requirement of the present case. Unlike intentional tort claims, plaintiffs need not establish
a cause-in-fact connection between an individual defendant’s conduct and their injuries but
only that a defendant contributed to the risk of injury. Nor does my ruling conflict with the
negligence and wrongful death claims defendants cite which, like intentional tort claims but
unlike risk contribution claims, require a cause-in-fact connection. See Myers v. Casino
Queen, Inc., 689 F.3d 904 (8th Cir. 2012) (negligence claim); Oldfield v. Pueblo De Bahia
Lora, S.A., 558 F.3d 1210 (11th Cir. 2009) (same); Negron-Torres v. Verizon Commc’ns,
Inc., 478 F.3d 19 (1st Cir. 2007) (wrongful death claim); O’Connor v. Sandy Lane Hotel

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Co., Ltd., 496 F.3d 312 (3d Cir. 2007) (negligence claims); Brunner v. Hampson, 441 F.3d
457 (6th Cir. 2006) (negligence, loss of consortium, and wrongful death claims); Terracom
v. Valley Nat’l Bank, 49 F.3d 555 (9th Cir. 1995) (negligent investigation claim under the
Miller Act); Prejean v. Sonatrach, Inc., 652 F.2d 1260 (5th Cir. 1981) (wrongful death
claim); Arocho v. Nafziger, 367 Fed. Appx. 942 (10th Cir. 2010) (Bivens claim for negligent
medical treatment); Yates v. Motivation Indus. Equip. Ltd., 38 Fed. Appx. 174 (4th Cir.
2002) (wrongful death claim).2
Second, defendants argue that my conclusion that Wisconsin’s risk contribution
theory of liability relaxes the causation standard is contestable. This is so, according to
defendants, because it eliminates a causation requirement altogether. However, this
conclusion is also not contestable because the Seventh Circuit has already concluded that
the Wisconsin Supreme Court in Thomas “did not entirely eliminate causation,” that instead
it merely “relax[ed] the traditional cause-in-fact requirement,” and that this relaxed
causation standard “comports with due process.” Gibson v. Am. Cyanamid Co., 760 F.3d
600, 614 (7th Cir. 2014). This argument appears to attempt to re-litigate the causation
standard required for liability, an argument which failed in the first appeal in this case.
Allowing the immediate appeal of an issue already addressed by the Seventh Circuit would
not serve the purpose of § 1292(b).
Third, defendants argue that my conclusion that “it would make no sense to require
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In fact, some of the cases defendants cite support my conclusion that the
analysis of whether the litigation arises out of a defendant’s forum-directed activities
depends on the nature of the underlying cause of action. See, e.g., Myers, 689 F.3d at
913 (noting that courts should “adopt a flexible approach when construing the ‘relate to’
aspect of the Supreme Court’s standard” because “relatedness cannot merely be
reduced to one tort concept for all circumstances”).
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plaintiffs to allege more in the way of causation to establish specific jurisdiction than they
must to establish liability” is contestable. See, e.g., Burton v. Am. Cyanamid Co., No. 07cv-0303, Decision & Order at 6–7 (ECF No. 327). They argue that this conclusion is at
odds with the premise that “a state or federal statute cannot transmogrify insufficient
minimum contacts into a basis for personal jurisdiction by making these contacts elements
of a cause of action, since this would violate due process.” Cent. States, Se. & Sw. Areas
Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 944 (7th Cir. 2000). However,
my decision does not violate this premise. The Central States court was analyzing the
sufficiency of plaintiffs’ allegations regarding minimum contacts, i.e. whether defendants
had purposefully directed activities at the forum, not whether the litigation arose out of or
related to such contacts. What Central States means is that just because an action is
sufficient to establish liability does not mean it is sufficient, in and of itself, to establish
minimum contacts. However, after minimum contacts have been established, then a court
must “determine whether the sufficient minimum contacts . . . arise out of or are related to
the causes of action involved in the suit,” and for this analysis the court must “examin[e]
the plaintiff’s causes of action.” Id. at 944. Thus, my consideration of the nature of the
underlying cause of action in determining whether that cause of action arose from
defendant’s Wisconsin-directed conduct was appropriate and not contestable.
I also conclude that immediate appeal is not likely to speed up litigation in this case.
The only scenario under which an immediate appeal will materially advance the litigation
is if the Seventh Circuit reverses my decision, which, as I have explained, I do not believe
is likely. The interlocutory appeal will take a considerable amount of time; by comparison,

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the last appeal in this case took four years and included a petition for certiorari to the
United States Supreme Court. See Am. Cyanamid Co. v. Gibson, 135 S. Ct. 2311 (2015)
(denying defendants’ petition for writ of certiorari in May 2015 when the district court’s
decision was issued in November 2010). Given the number of years this litigation has been
pending and, in my opinion, defendants’ chance of success on appeal, I believe the best
way to materially advance this litigation is to deny immediate appeal and proceed to
discovery. See Ryan v. C.I.R., 517 F.2d 13, 19 (7th Cir. 1975) (“[The] risk [of harm to a
party requesting interlocutory appeal] must be balanced against the need for efficient
federal judicial administration, the need for the appellate courts to be free from the
harassment of fragmentary and piecemeal review of cases otherwise resulting from a
succession of appeals from the various rulings which might arise during the course of
litigation.”).
Finally, I address a separate argument for interlocutory appeal made by Atlantic
Richfield and American Cyanamid. At the motion to dismiss stage, Atlantic Richfield and
American Cyanamid joined the other defendants in arguing that plaintiffs could not show
that their injuries arose out of or related to defendant’s Wisconsin-directed conduct, but
they also separately argued that plaintiffs had not pled sufficient facts to support the
assertion that they had purposefully directed activities at Wisconsin. During briefing on the
interlocutory appeal issue, they filed separate reply briefs, seeming to argue that in addition
to certifying the issue discussed above, I should also certify my decision that plaintiffs had
adequately pled that Atlantic Richfield and American Cyanamid purposefully directed their
activities at Wisconsin sufficient that they could expect to be haled into court here. See
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Because Atlantic
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Richfield and American Cyanamid first raise this argument in their reply briefs, I will not
consider it. See Sharpe v. Glob. Sec. Int’l, 766 F. Supp. 2d 1272, 1294 n.26 (S.D. Ala.
2011) (citing Nelson v. La Crosse Cty. Dist. Attorney, 301 F.3d 820, 836 (7th Cir. 2002)).
I also note that even if I were to consider certifying this issue for immediate appeal, it is
unlikely that I would grant the request because the purposeful availment inquiry requires
the application of facts to a legal standard and thus is not a pure question of law.
Ahrenholz, 219 F.3d at 677 (defining “pure question of law” as “something the court of
appeals could decide quickly and cleanly without having to study the record”).
THEREFORE, IT IS ORDERED that defendants’ motions for certification of my
personal jurisdiction decision (No. 07-cv-0303, ECF No. 328; No. 07-cv-0441, ECF No.
292; No. 07-cv-0864, ECF No. 286; No. 07-cv-0865, ECF No. 267; No. 10-cv-0075, ECF
No. 193; No. 11-cv-0055, ECF No. 166; No. 11-cv-0425, ECF No. 118; No. 14-cv-1423,
ECF No. 80) are DENIED.
Dated at Milwaukee, Wisconsin, this 26th day of January, 2016.
s/ Lynn Adelman
_____________________
LYNN ADELMAN
District Judge

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