Cannon v. Armstrong Containers Inc.

92 F.4th 688

Latonya CANNON, et al., Plaintiffs-Appellants, v. ARMSTRONG CONTAINERS INC., et al., Defendants-Appellees.

No. 22-2636

No. 22-2630

No. 22-2632

No. 22-2633

No. 22-2634

No. 22-2635

No. 22-2637

United States Court of Appeals, Seventh Circuit

Argued September 26, 2023

Decided February 9, 2024

Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 07-c-0864, 11-c-0055, 11-c-0425, 14-c-1423 — Lynn Adelman, Judge.

Peter G. Earle, Attorney, Law Office of Peter Earle, LLC, Milwaukee, WI, Fidelma L. Fitzpatrick, Attorney, Robert McConnell, Motley Rice LLC, Providence, RI, Louis M. Bograd, Attorney, Motley Rice LLC, Washington, DC, Victor C. Harding, Attorney, Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, Milwaukee, WI, Mark R. Miller, Attorney, Wallace Miller, Chicago, IL, for Plaintiff-Appellant Latonya Cannon.

Peter G. Earle, Attorney, Law Office of Peter Earle, LLC, Milwaukee, WI, Fidelma L. Fitzpatrick, Attorney, Robert McConnell, Motley Rice LLC, Providence, RI, Louis M. Bograd, Attorney, Motley Rice LLC, Washington, DC, Victor C. Harding, Attorney, Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, Milwaukee, WI, for Plaintiffs-Appellants Tyann McHenry, D'Angelo Thompson, Dijonae Trammell.

Paul E. Benson, Attorney, Michael Best & Friedrich LLP, Milwaukee, WI, Brian David Schmalzbach, Eric Samuel Fleming, Joy C. Fuhr, Attorneys, McGuirewoods LLP, Richmond, VA, for Defendant-Appellee EIDP, Inc.

Anthony S. Baish, Attorney, Godfrey & Kahn S.C., Milwaukee, WI, Sean Morris, Attorney, Arnold & Porter Kaye Scholer LLP, Los Angeles, CA, for Defendant-Appellee Atlantic Richfield Company.

Anderson Bailey, Attorney, Jones Day, Pittsburgh, PA, Leon F. DeJulius, Jr., Esq., Attorney, Jones Day, New York, NY, Jeffrey K. Spoerk, Evan Thomsen, Attorneys, Quarles & Brady LLP, Milwaukee, WI, for Defendant-Appellee Sherwin-Williams Company.

Robert P. Alpert, Jeffrey K. Douglass, Eric Larson, Attorneys, Morris, Manning & Martin LLP, Atlanta, GA, Timothy A. Bascom, Attorney, Bascom, Budish & Ceman, S.C., Germantown, WI, for Defendant-Appellee Armstrong Containers Inc.

Fidelma L. Fitzpatrick, Attorney, Robert McConnell, Motley Rice LLC, Providence, RI, Victor C. Harding, Attorney, Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, Milwaukee, WI, Louis M. Bograd, Attorney, Motley Rice LLC, Washington, DC, Peter G. Earle, Attorney, Law Office of Peter Earle, LLC, Milwaukee, WI, Mark R. Miller, Attorney, Wallace Miller, Chicago, IL, for Plaintiffs-Appellants Ernest Gibson, Deziree Valoe, Detareion Valoe.

Fidelma L. Fitzpatrick, Attorney, Robert McConnell, Motley Rice LLC, Providence, RI, Victor C. Harding, Attorney, Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, Milwaukee, WI, Mark R. Miller, Attorney, Wallace Miller, Chicago, IL, Louis M. Bograd, Attorney, Motley Rice LLC, Washington, DC, Peter G. Earle, Attorney, Law Office of Peter Earle, LLC, Milwaukee, WI, for Plaintiffs-Appellants Anthony Thompson, Leah Davis.

Fidelma L. Fitzpatrick, Attorney, Robert McConnell, Motley Rice LLC, Providence, RI, Victor C. Harding, Attorney, Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, Milwaukee, WI, Mark R. Miller, Attorney, Wallace Miller, Chicago, IL, Louis M. Bograd, Attorney, Motley Rice LLC, Washington, DC, for Plaintiff-Appellant Maniya Allen.

Fidelma L. Fitzpatrick, Attorney, Robert McConnell, Motley Rice LLC, Providence, RI, Victor C. Harding, Attorney, Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, Milwaukee, WI, Mark R. Miller, Attorney, Wallace Miller, Chicago, IL, Louis M. Bograd, Attorney, Motley Rice LLC, Washington, DC, for Plaintiffs-Appellants Letriysa Alexis, Daveon Archibold, Damian Arias, Kennedy Bland.

Before Wood, Scudder, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

This is a successive appeal of a series of toxic tort cases brought by individuals allegedly harmed by lead paint pigment. The cases include the claims of approximately 170 different plaintiffs, most of whom are joined together in a single complaint. All the plaintiffs and all the cases proceeded together in the same court, in front of the same judge, and against the same lead paint manufacturers. The same counsel represented each plaintiff.

To bring order to this sprawling array of litigants, the parties and the district court devised a case management plan under which groups of plaintiffs would try their claims in a series of waves. The plaintiffs in the first two waves, however, met a concatenation of defeats here and in the district court, resulting in the district court granting summary judgment for the defendants on all claims. The court then extended those rulings to the remaining 150 + plaintiffs on law of the case and issue preclusion grounds.

After careful review, we see no error in much of the court's reasoning. Most of these plaintiffs opted to proceed under a single complaint, within a single case, which is now sunk after summary judgment. But a small group of plaintiffs filed their own cases, and due process protects their right to try them. For the reasons that follow, we affirm the decision of the district court in large part and reverse in small part.

I. Background

This mass tort case involves approximately 170 plaintiffs, spread over several actions, all alleging injuries stemming from their exposure to white lead carbonate ("WLC"), a lead-paint pigment. Each plaintiff contends he was exposed to WLC as a child during the 1990s and early 2000s, while growing up in Milwaukee homes that had lead-based paint on the walls. Each seeks to hold several manufacturers of WLC (and their successors) liable under state-law negligence and strict liability theories.

A. Legal Background

We begin with a brief overview of the legal framework that supports the plaintiffs' claims, which we addressed in detail in our prior opinion. See Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791 (7th Cir. 2021) ("Burton II"). In short, this case is a kind of anachronism. For a brief moment, Wisconsin law recognized a cause of action for WLC injuries based on a "risk-contribution" theory. See Thomas ex rel. Gramling v. Mallett, 285 Wis.2d 236, 701 N.W.2d 523 (2005). That theory, blessed for purposes of WLC litigation by the Wisconsin Supreme Court in 2005, essentially permitted plaintiffs to bring injury claims even if they could not prove exactly who manufactured the WLC that injured them. Id.; see also Burton II, 994 F.3d at 804-05. As we explained in Burton II: risk contribution "modifies the ordinary rule in tort law that a plaintiff must prove that a specific defendant's conduct caused his injury . . . by apportion[ing] liability among the 'pool of defendants' who could have caused the injury." 994 F.3d at 802. Wisconsin recognized such claims until 2011, when the Wisconsin legislature effectively overruled Thomas. See id. at 806; Wis. Stat. § 895.046. The Wisconsin legislature also attempted to make its statute retroactive, but we rejected that effort after finding that retroactivity would violate the state's due process guarantees. See Gibson v. Am. Cyanamid Co., 760 F.3d 600 (7th Cir. 2014). The result? From 2005 to 2011, WLC claims based on a risk-contribution theory were viable, and approximately 170 plaintiffs entered the courthouse door. Burton II, 994 F.3d at 807.

B. Procedural Background

1. The Cases

These cases began in 2007, after Glenn Burton, Jr., filed a complaint in Wisconsin state court against eight manufacturers of WLC. The defendants removed the case to federal court. Meanwhile, two more lawsuits, filed by Ravon Owens and Ernest Gibson, were similarly removed to federal court.

More cases followed. In early 2010, Cesar Sifuentes filed a case directly in federal court. A year later, over 160 different individuals filed a single complaint under Federal Rule of Civil Procedure 20(a)(1), with Maniya Allen as the first-named plaintiff. Not long after, Deziree and Detareion Valoe jointly filed suit. Finally, three plaintiffs from the Allen action—Dijonae, Ty'Jai, and Jaquan Trammell—agreed to sever their claims into a separate suit to cure a diversity problem. Those plaintiffs also proceeded under a single complaint.

The cases eventually proceeded against American Cyanamid Co.; E.I. du Pont de Nemours and Company, Inc.¹; NL Industries, Inc.; the Sherwin Williams Company; Armstrong Containers, Inc.; and the Atlantic Richfield Company. Judge Adelman ultimately presided over each case, and the same counsel represented each plaintiff. These separate cases, however, were never formally consolidated under Federal Rule of Civil Procedure 42(a).²

Early on, the defendants jointly moved to dismiss or sever all but the named plaintiff in the Allen case (which, recall, included approximately 160 individuals). The defendants argued that the Allen action improperly joined those plaintiffs because they lived in separate cities and alleged separate injuries incurred at separate times—all of which required individualized discovery and separate trials. The plaintiffs countered that joinder was proper because the claims involved "numerous" common questions of law or fact. Specifically, the plaintiffs argued that discovery on general causation would be "similar, if not identical" for every plaintiff, and that common issues included whether the defendants "knew of the hazards inherent in the white lead paint products at issue when they marketed them to the general public in Wisconsin." "Proof of the failure to warn elements," according to the plaintiffs, was "particularly conducive to this common discovery."

The district court agreed and denied the defendants' motion to sever. The court reasoned that the Allen plaintiffs' claims were sufficiently connected because their injuries stemmed from a common source—the defendants' manufacturing of lead-based paint—and because their claims presented common questions of liability under a common theory—risk contribution. While the court recognized that ...