Gibson v. Am. Cyanamid Co.

750 F.Supp.2d 998

Ernest GIBSON, Minor, by his guardian ad litem, Susan M. Gramling, and Milwaukee County Department of Health And Human Services, Plaintiffs,

v.AMERICAN CYANAMID CO., Armstrong Containers, Inc., E.I. Du Pont de Nemours and Co., Millenium Holdings LLC, NL Industries, Inc., Atlantic Richfield Co., and The Sherwin Williams Co., Defendants.

Case No. 07–C–864.

United States District Court, E.D. Wisconsin.

Nov. 15, 2010.

Jonathan D. Orent, Michael G. Rousseau, Motley Rice LLC, Providence, RI, Peter G. Earle, Law Offices of Peter Earle LLC, Milwaukee, WI, for Plaintiffs.Beth Ermatinger Hanan, Daniel S. Elger, Ralph A. Weber, Gass Weber Mullins LLC, Chris J. Trebatoski, Weiss Berzowski Brady LLP, Jonathan J. Strasburg, Paul E. Benson, Nathaniel Cade, Jr., Michael Best & Friedrich LLP, Richard H. Porter, Gonzalez Saggio & Harlan LLP, James R. Clark, Trevor J. Will, Brian P. Keenan, Foley & Lardner LLP, James T. Murray, Jr., Michael J. Wirth, J. Ryan Maloney, Peterson Johnson & Murray SC, William H. Levit, Jr., Godfrey & Kahn SC, Jeffrey K. Spoerk, Quarles & Brady LLP, Cheri L. McCourt, Christopher G. Meadows, Quarles & Brady LLP, Milwaukee, WI, Elyse D. Echtman, Richard W. Mark, Orrick Herrington & Sutcliffe LLP, Bruce R. Kelly, Philip H. Curtis, Arnold & Porter LLP, New York, NY, Jeffrey K. Douglass, Robert P. Alpert, Hilary H. Houston, Morris Manning & Martin LLP, Altanta, GA, Timothy A. Bascom, Jacob A. Sosnay, Bascom Budish & Ceman SC, Wauwatosa, WI, Christian E. Henneke, Collin J. Hite, Jessica A. Brumberg, Jontille D. Ray, Lisa M. Danish, R. Trent Taylor, Virginia Leigh Hudson, Joy C. Fuhr, Steven R. Williams, McGuirewoods LLP, Richmond, VA, Cortney G. Sylvester, Courtney E. Ward–Reichard, Dana M. Lenahan, Michael T. Nilan, Nilan Johnson Lewis PA, Minneapolis, MN, Jennifer G. Levy, Karen McCartan Desantis, Michael D. Jones, Kirkland & Ellis LLP, Washington, DC, Timothy S. Hardy, Timothy Hardy PC, Andre M. Pauka, Donald E. Scott, Bartlit Beck Herman Palenchar & Scott, Denver, CO, Anthony S. Baish, Godfrey & Kahn SC, Madison, WI, Daniel T. Flaherty, Godfrey & Kahn SC, Appleton, WI, Charles H. Moellenberg, Jennifer B. Flannery, Jerome J. Kalina, Paul Michael Pohl, Jones Day, Pittsburgh, PA, for Defendants.

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

On June 15, the Court granted summary judgment for one of the defendants, Atlantic Richfield Company (“ARCO”). The Court held that the imposition of liability under the “risk contribution” rule adopted by the Wisconsin Supreme Court in Thomas ex rel. Gramling v. Mallett, 285 Wis.2d 236, 701 N.W.2d 523 (2005) would violate ARCO's substantive due process rights. Gibson v. Am. Cyanamid Co., 719 F.Supp.2d 1031 (E.D.Wis.2010). The remaining defendants now move for summary judgment. As the Court accurately predicted, the logic of the Court's decision applies with equal force to all of the defendants in this case.

I.

The plaintiff, Ernest Gibson (“Gibson”), alleges that in January 1997 his family moved into a residence located at 2904 West Wisconsin Avenue, Milwaukee, Wisconsin. Gibson contends that he sustained an injury caused by ingesting paint containing white lead carbonate pigment at that residence. Gibson's residence was constructed in 1919.

Lead pigments are granular lead compounds that impart color, toughness, and texture to paint. Historically, painters and paint manufacturers prized white lead carbonate pigments for their strength, durability, flexibility, washability, brushability, and bright color. In the early 1900s, some states, including Wisconsin, enacted consumer protection laws requiring paint labels to disclose lead content to prevent consumers from unknowingly buying inferior paint with non-lead pigments. From the early 1900s through the 1960s, federal, state and local governments, including the City of Milwaukee, required the use of lead pigments in their project specifications. Eventually, the residential use of lead paint was banned in various forms by the federal government in 1972 and 1978. Wisconsin banned the use of lead paint in 1980. Thomas, 701 N.W.2d at 530.

Gibson brought this action against seven “Industry Defendants:” ARCO, E.I. du Pont de Nemours and Company (“DuPont”), NL Industries, Inc. (“NL”), Armstrong Containers, Inc. (“Armstrong”), American Cyanamid Company (“Cyanamid”), The Sherwin–Williams Company (“Sherwin–Williams”), and Millenium Holdings LLC (“Millenium”).¹ Plaintiff is unable to identify the specific manufacturer, supplier or distributor of the white lead carbonate he allegedly ingested. Moreover, Gibson did not sue every company that manufactured white lead carbonate pigments and sold them in Milwaukee or Wisconsin. Some of the companies that manufactured white lead carbonate pigments are no longer in existence.

DuPont began the manufacture of white lead carbonate pigment in 1917 when it acquired the Harrison Works, a plant located in Philadelphia, Pennsylvania. The Harrison Works plant was the only place that DuPont ever manufactured white lead carbonate pigment. By December 31, 1924, DuPont had discontinued the manufacture of white lead carbonate pigment. DuPont announced that it ceased the manufacture of white lead carbonate pigment in two separate trade journals on three separate occasions in December 1924 and January 1925.

The National Lead Company was organized in a consolidation of various white lead carbonate pigment manufacturers in 1891. National Lead created the Dutch Boy trademark in 1907, and made and sold white lead carbonate pigment for use in paint through its Dutch Boy division. National Lead was a major manufacturer of white lead carbonate for many years, but it was only one of several major manufacturers. In 1971, National Lead changed its name to NL Industries, Inc. (“NL”). NL sold its Dutch Boy division in December 1976. Of NL's 48.63 million outstanding shares, almost none are held by shareholders who date back to 1976 when NL sold its Dutch Boy business. Today, NL is a holding company with ownership interests in business that had nothing to do with NL's former lead pigment business.

Armstrong is an entity that allegedly succeeded to the liabilities of the John R. MacGregor Lead Co. and the MacGregor Lead Co. (“MacGregor”). MacGregor manufactured white lead carbonate at a single plant in Chicago, Illinois from 1938 to mid–1971, when it sold the plant. Until mid–1971, MacGregor manufactured and sold lead-based paint for exterior use under the brand name “Scotch Laddie.” MacGregor's paint business was limited to the manufacture and sale of “Scotch Laddie” paint for exterior use. White lead carbonate manufactured at MacGregor's Chicago plant was used as lead pigment in MacGregor's Scotch Laddie brand exterior paint.

Cyanamid first manufactured white lead carbonate starting in June 1971 when it purchased white lead manufacturing assets from MacGregor, including MacGregor's manufacturing plant in Chicago. Cyanamid acquired the MacGregor assets to expand its plastics additives business, specifically, to sell lead products to other companies that used the product as a heat stabilizer in making plastics. Cyanamid had no interest in MacGregor's “Scotch Laddie” exterior paint manufacturing business; that business line was excluded from Cyanamid's asset purchase and continued in existence and operation. The asset purchase, however, included Cyanamid's agreement to a “requirements” contract under which Cyanamid would supply to MacGregor white lead carbonate at a specified grade at a specified price. The requirements contract set a maximum quantity that MacGregor might purchase during each year, but it did not obligate MacGregor to purchase any minimum. Less than two months after MacGregor sold its lead chemicals business to Cyanamid, MacGregor sold its paint business to another Chicago paint company, Elliot Paint & Varnish. The time period in which Scotch Laddie paint might possibly have contained white lead carbonate made by Cyanamid is limited to approximately eighteen months—from the June 1971 asset purchase date until December 1972.

Sherwin–Williams was founded in 1870. Sherwin–Williams focused on selling high-quality “ready-mixed” or “prepared” paint. Sherwin–Williams began manufacturing white lead carbonate pigment in 1910 as part of its vertical integration strategy. Sherwin–Williams used almost all of the white lead carbonate it produced in its own paints. Sherwin–Williams confined its entire white lead carbonate production to a single facility in Chicago, which operated from 1910 until 1947. None of Sherwin–Williams' interior-use wall paint contained white lead carbonate.

II.

Under 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 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The “plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Gibson does not dispute any of the facts that are relevant to the defendants' motions for summary judgment.

The Court presumes familiarity with its previous orders in this case. Gibson, 719 F.Supp.2d 1031 (E.D.Wis.2010) (granting ARCO's motion for summary judgment); Gibson v. Am. Cyanamid, No. 07–C–864, 2010 WL 3062145 (E.D.Wis. Aug. 2, 2010) (denying ARCO's motion for entry of judgment and denying Gibson's motion for reconsideration). As relevant here, ARCO succeeded to the liabilities of a company that manufactured white lead carbonate pigment at a plant in East...