Sherwin-Williams, DuPont, Armstrong Topple Lead Paint Verdict

April 16, 2021, 4:28 PM

A $6 million jury verdict against paint manufacturers E.I. du Pont de Nemours and Co., Sherwin-Williams Co., and Armstrong Containers Inc. in a bellwether Wisconsin lead paint exposure suit was nixed after the Seventh Circuit found the trial court made multiple errors.

The court granted Sherwin-Williams’ motion for judgment as a matter of law on both counts—negligence and strict liability failure to warn—and granted Armstrong’s JMOL motion on the strict liability count.

The lower court erred in finding that a jury could find negligence in the absence of a product defect, the U.S. Court of Appeals for the Seventh Circuit said Thursday. The trial court also erred in finding the companies had a duty to warn for purposes of strict liability after ruling they had no duty to warn the plaintiffs on the negligence claims, the court said.

Armstrong is entitled to a new trial on the negligence claims, and DuPont is entitled to a new trial on both counts, the court ruled. A new trial is warranted because the court improperly extended the risk contribution theory by allowing the jury to find the companies liable as paint manufacturers rather than white lead carbonate manufacturers, the court said.

The risk-contribution theory modifies the ordinary rule in tort law that a plaintiff must prove that a specific defendant’s conduct caused his injury. It instead seeks to apportion liability among the pool of defendants who could have caused the injury.

The Wisconsin Supreme Court has held that the risk-contribution theory extends to white lead carbonate manufacturers. But the trial court based its “expansive reading” of the Wisconsin Supreme Court’s ruling based on its use of the word “marketed,” allowing the jury to find a paint manufacturer liable for selling paint containing another company’s white lead carbonate, the court said.

The plaintiffs, Glenn Burton Jr., Ravon Owens, and Cesar Sifuentes lived in Milwaukee homes as young children in the 1990s or early 2000s that had paint containing white lead carbonate, which caused them to develop elevated blood lead levels.

The plaintiffs identified the paint pigment in their childhood homes as white lead carbonate, but they couldn’t identify the specific company responsible for manufacturing the white lead carbonate that they ingested.

Judge Amy J. St. Eve wrote the opinion, joined by Judges Diane P. Wood and Michael Y. Scudder Jr.

Motley Rice LLC and Wexler Wallace LLP represent the plaintiffs.

Jones Day represents Sherwin-Williams. Morris, Manning & Martin LLP and Bascom, Budish & Ceman SC represent Armstrong. Michael Best & Friedrich LLP and McGuireWoods LLP represent DuPont.

The case is Burton v. E.I. DuPont de Nemours & Co., 7th Cir., No. 20-01774, 4/15/21.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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