Gibson v. American Cyanamid Co, Case No. 07-C-864.

719 F.Supp.2d 1031

Ernest GIBSON, Minor, by his guardian ad litem, Susan M. Gramling, Plaintiff,

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

Case No. 07-C-864.

United States District Court,E.D. Wisconsin.

June 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Jonathan D. Orent, Michael G. Rousseau, Motley Rice, LLC, Providence, RI, Peter G. Earle, Law Offices of Peter Earle, LLC, Milwaukee, WI, for Plaintiff.

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, David G. Peterson, Karen A. Waple, Godfrey & Kahn, SC, Jeffrey K. Spoerk, 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, Morris, Manning & Martin, LLP, Altanta, GA, Timothy A. Bascom, 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 L. H. Nesbitt, McGuirewoods, LLP, Richmond, VA, Cortney G. Sylvester, Nilan, Johnson, Lewis, PA, 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, Denver, CO, Charles H. Moellenberg, Jennifer B. Flannery, Jones Day, Pittsburgh, PA, for Defendants.

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

This is a childhood lead poisoning case brought pursuant to what is known as 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). The case is before this Court because of the diversity of the parties.

By adopting the risk contribution rule in Thomas, the Wisconsin Supreme Court essentially disregarded the black letter rule of tort law that a party's liability for an injury is attached to the causation by that party of that injury. While the court in Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984) changed the concept of causation to a degree that fit the unusual facts of that case, Thomas was a dramatic and novel departure from established legal principles. 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, property, or character ...” By reading a due process standard into this section, the court found that the injured Thomas should not be foreclosed from recovery simply because he could not prove causation. In essence and effect, when the court's view of due process requires 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 the Wisconsin Constitution, can fashion an adequate remedy.” Thomas, 701 N.W.2d at 556 (quoting Collins, 342 N.W.2d at 45).

The court's provision of “due process” to Thomas was, in turn, challenged by the Thomas defendants as a violation of their due process rights. These challenges were deemed “not 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 process rights under the U.S. Constitution, amend. XIV, § 1, ARCO's motion for summary judgment is granted.

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. He contends that he sustained an injury caused by ingesting paint containing white lead carbonate pigment at that residence. Plaintiff is unable to identify the specific manufacturer, supplier or distributor of the white lead carbonate he allegedly ingested. He does not allege that ARCO itself manufactured, produced or sold white lead carbonate pigment.

Plaintiff's claim against ARCO is based on sales of white lead carbonate by ARCO's alleged predecessors-in-interest, one of which is International Smelting and Refining Company (“IS & R”). IS & R manufactured white lead carbonate at a plant in East Chicago, Indiana from 1936 until 1946, when it sold the plant. During the time from 1936 to 1946 when IS & R operated the East Chicago plant, IS & R sold white lead carbonate under the “Anaconda” brand name to both paint manufacturers and manufacturers of ceramics and other non-paint products. IS & R was a wholly-owned subsidiary of the Anaconda Copper Mining Company (later renamed The Anaconda Company), a publicly traded mining and metals company.

In 1973, The Anaconda Company merged IS & R into itself. In 1977, ARCO acquired 100% of the shares of The Anaconda Company. ARCO operated The Anaconda Company as a wholly-owned subsidiary until 1981, when it merged The Anaconda Company into itself. ARCO does not dispute that, as a result of mergers in 1981 and 1973, it succeeded to the liabilities, if any, of The Anaconda Company and its former subsidiary IS & R. ¹

The use of lead pigments in residential paints was banned by federal and state regulation as early as the 1970s. Wisconsin banned the use of lead paint in 1980.

II.

A.

As stated, the Wisconsin Supreme Court originally created the risk contribution rule in Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984). In Collins, the plaintiff's in utero exposure to the drug diethylstilbestrol (DES) caused her to develop vaginal cancer. The plaintiff could not identify “the precise producer or marketer of the DES taken by her mother due 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 or marketers, the lack of pertinent records, and the passage of time.” Collins, 342 N.W.2d at 43. Stated another way, the plaintiff could not prove “legal causation between a defendant's conduct and [her] injury,” a required tort element at common law. Id. at 45. This was an “insurmountable obstacle” for the plaintiff. Id.

On 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 1971, 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 circumstances which will never occur again.” Id. Accordingly, the court recognized that it was “faced with a choice of either fashioning a method of recovery for the DES case which will deviate from traditional notions of tort law, or permitting possibly negligent defendants to escape liability to an innocent, injured plaintiff. In the interests of justice and fundamental fairness,” the court chose “the former alternative.” Id. In doing so, the court relied upon Article I, Section 9 of the Wisconsin Constitution, which allows courts in Wisconsin to “fashion an adequate remedy” if none otherwise exists. Id. ²

The court surveyed a variety of different recovery theories, including alternative liability, ³ concerted action, ⁴ and enterprise liability. ⁵ Ultimately, the court adopted a modified version of market share liability, originally espoused by the California Supreme Court in a DES case, Sindell v. Abbott Labs., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980). In Sindell, as in Collins, the plaintiff could not identify the DES manufacturer that caused her injury. Instead of denying recovery, the court acknowledged that “some adaptation of the rules of causation and liability may be appropriate in these recurring circumstances.” Sindell, 163 Cal.Rptr. 132, 607 P.2d at 936 (citing Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 (1944) (Traynor, J., concurring)). As between “an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury.” Id. The plaintiff “is not at fault in failing to provide evidence of causation, and although the absence of such evidence is not attributable to the defendants either, their conduct in marketing a drug the effects of which are delayed for many years played a significant role in creating the unavailability of proof.” Id.

The Wisconsin Supreme Court did not “question the fundamental fairness of Sindell's shifting the burden of proof to the defendants,” but concluded that the market share theory for apportioning damages should not be adopted primarily because of the “practical difficulty of defining and proving market share.” Collins at 48. ⁶ Therefore, instead of a pure market share theory, the court adopted what came to be known as the risk contribution rule. “Each defendant 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 culpability ...” Id. at 49 (emphasis in original). The “possibly responsible” drug companies were in a better position than the injured plaintiff to absorb the cost of the injury, either by insuring...