Stokes v. Am. Cyanamid Co., Case No. 07–C–0865.

787 F.Supp.2d 836

Brionn STOKES, Plaintiff,

v.AMERICAN CYANAMID CO., et al., Defendants.

Case No. 07–C–0865.

United States District Court, E.D. Wisconsin.

April 5, 2011.

Fidelma L. Fitzpatrick, Jonathan D. Orent, Michael G. Rousseau, Robert J. McConnell, 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, Jonathan J. Strasburg, Nathaniel Cade, Jr., Paul E. Benson, Michael Best & Friedrich LLP, Brian P. Keenan, James R. Clark, Trevor J. Will, Foley & Lardner LLP, J. Ryan Maloney, James T. Murray, Jr., Michael J. Wirth, Peterson Johnson & Murray SC, Christopher G. Meadows, Whyte Hirschboeck Dudek SC, Frank J. Daily, Jeffrey K. Spoerk, Quarles & Brady LLP, Milwaukee, WI, Elyse D. Echtman, Richard W. Mark, Orrick Herrington & Sutcliffe LLP, Bruce R. Kelly, Philip H. Curtis, William H. Voth, Arnold & Porter LLP, New York, NY, Hilary H. Houston, Jeffrey K. Douglass, Robert P. Alpert, Morris Manning & Martin LLP, Atlanta, GA, Jacob A. Sosnay, Timothy A. Bascom, Bascom Budish & Ceman SC, Wauwatosa, WI, Jessica A. Brumberg, Jontille D. Ray, Lisa M. Danish, R. Trent Taylor, Virginia Leigh Hudson, McGuirewoods LLP, Christian E. Henneke, Collin J. Hite, Joy C. Fuhr, Richmond, VA, Cortney G. Sylvester, Courtney E. Ward–Reichard, Dana M. Lenahan, Erik T. Salveson, 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, Anthony S. Baish, Godfrey & Kahn SC, Madison, WI, Aniel T. Flahertym, Godfrey & Kahn SC, Appleton, WI, Charles H. Moellenberg, Jennifer B. Flannery, Jones Day, Pittsburgh, PA, Robert S. Walker, Jones Day, Cleveland, OH, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

Plaintiff, Brionn Stokes, a minor, brought this negligence/strict liability action in state court seeking damages for injuries allegedly incurred when he ingested white lead carbonate pigment contained in the paint coating the walls of his Milwaukee apartment. Defendants, corporations which manufactured white lead carbonate pigment or are the successors of such manufacturers, removed the case based on diversity of citizenship. The parties agree that the case is governed by Wisconsin law. Plaintiff acknowledges that he cannot establish the identity of the particular manufacturer that produced the particular batch of pigment that he believes caused his injuries. Thus, to identify the responsible party or parties he relies on the risk contribution doctrine, which the Wisconsin Supreme Court adopted in Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984) and held was applicable in the lead paint context in Thomas v. Mallett, 285 Wis.2d 236, 701 N.W.2d 523 (2005). Under the risk contribution doctrine, if all products of the type that injured the plaintiff are fungible and present the identical danger, to prove liability the plaintiff need not establish that a particular defendant manufactured the particular item that harmed him but only that the defendant produced the type of product that caused the injury at a time that it could reasonably have caused the injury. Collins, 116 Wis.2d at 195–96, 342 N.W.2d 37. The theory underlying the doctrine is that all the parties that produced the harmful product contributed to the risk that plaintiff would be harmed by it. Defendants contend that to allow plaintiff to use the risk contribution doctrine to prove his case would violate their constitutional rights, and they move for summary judgment. Plaintiff disagrees and cross-moves for partial summary judgment dismissing defendants' affirmative defenses insofar as they are based on defendants' constitutional objections.

The parties have not developed the facts to any appreciable extent. However, for purposes of the pending motions, the facts are not in dispute: plaintiff lived in his Milwaukee apartment from 2001 until 2006, the walls of which were coated with paint containing white lead carbonate pigment, and when the paint deteriorated plaintiff ingested flakes and dust containing such pigment. White lead carbonate pigment is toxic, and as a result of ingesting it plaintiff's cognitive development was adversely affected. White lead carbonate was once the predominant pigment used in residential paint, and defendants or their predecessors manufactured it for varying periods of time. Defendant E.I. Dupont Nemours and Company manufactured it from 1917 to 1924; defendant NL Industries from 1907 to 1976; defendant American Cyanamid Co. from June 1971 to December 1972; and defendant Sherwin–Williams Company from 1910 until 1947; defendant Atlantic Richfield Company's predecessors manufactured it from 1936 to 1946 and defendant Armstrong Container Inc.'s predecessors from 1938 to 1971. No defendant or predecessor of a defendant manufactured white lead carbonate in Wisconsin.

As stated, the principal effect of the risk contribution doctrine is to modify the plaintiff's burden of proving liability. To establish liability in the present case, instead of 2 having to prove that a particular defendant produced the particular batch of pigment that harmed him, plaintiff may establish a prima facie case by showing that the defendant manufactured or marketed pigment at a time such that it could reasonably have produced the pigment that harmed him. Thomas, 285 Wis.2d at 320, 701 N.W.2d 523. If plaintiff is able to establish a prima facie case against a defendant, the risk contribution doctrine creates a rebuttable presumption that the defendant produced the pigment that plaintiff alleges harmed him. Id. at 321, 701 N.W.2d 523.

Defendants first contend that the modification of the burden of proof effected by the risk contribution doctrine violates due process. However, outside of the criminal law area, the locus of the burden of proof is not usually an area of constitutional concern. Lavine v. Milne, 424 U.S. 577, 585, 96 S.Ct. 1010, 47 L.Ed.2d 249 (1976). And, in the civil law context, a presumption will be upheld against a due process challenge unless it is arbitrary, i.e., there is no rational connection between the facts to be proved and the fact to be inferred, or if it denies a party a fair opportunity for rebuttal. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28–29, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976); Western & Atl. R. Co. v. Henderson, 279 U.S. 639, 642, 49 S.Ct. 445, 73 L.Ed. 884 (1929).

Under the foregoing standard, allowing plaintiff to use the risk contribution doctrine in the present case would clearly not offend due process. There is nothing arbitrary or irrational either about the risk contribution doctrine or about applying it in the lead paint context. In Thomas, the Wisconsin Supreme Court explained at great length why this was so. The court first pointed out that a plaintiff who has been severely harmed by ingesting white lead carbonate pigment may be entirely innocent and will likely also be unable to prove which manufacturer produced the particular batch of pigment that injured him. Thomas, 285 Wis.2d at 306, 701 N.W.2d 523. The court then noted that all white lead carbonate pigment was functionally interchangeable and that by the 1920s the pigment manufacturers knew or should have known of the harm that their product caused but nevertheless continued to manufacture and promote it. Id. at 307–308, 701 N.W.2d 523. The court went on to explain that as participants in the lead pigment market the manufacturers likely had more information or access to information than the plaintiff and concluded that it was fair and reasonable to modify the burden of proof accordingly. Id. at 308, 309 n. 46, 701 N.W.2d 523.

In addition to not being arbitrary or irrational, the risk contribution doctrine affords a lead paint defendant an opportunity to contest the prima facie case as well as the opportunity to rebut the presumption that flows from a prima facie case. For example, a defendant can eviscerate a plaintiff's prima facie case by showing that the plaintiff could have been harmed by lead from a source other than paint. This is apparently what happened in Thomas after the Wisconsin Supreme Court remanded the case. In addition, a defendant can rebut the presumption created by a prima facie case by showing that it did not produce white lead carbonate pigment during the relevant time period or in the relevant geographical market. Defendants argue that in the present case they will not have an opportunity to rebut because of the long time span during which the pigment that caused plaintiff's injuries could have been manufactured and because they lack records of transactions occurring years ago. However, as the Thomas court explained, a lead paint defendant is in a better position than an injured plaintiff to present evidence relating to its own past operations. Moreover, as between an innocent plaintiff and a defendant who reasonably could have contributed to the plaintiff's injury, it is fairer to place such burden on the defendant. In addition, the risk contribution doctrine gives a lead paint defendant the opportunity to show that even though it may have contributed to the risk that the plaintiff would be injured, for any number of reasons as, for example, that it was less culpable than other defendants or that it had a smaller market share, it did so to a lesser extent than others and thus should be held responsible for a lesser portion of the damages.

Insofar as it modifies the traditional burden of proof, the risk contribution doctrine is not unique. Common law courts have long encountered fact situations where innocent plaintiffs who deserve to be compensated for injuries resulting from the tortious conduct of others face difficult problems of proof. Over time, such courts have balanced the rights of the parties and developed and...