Three men allegedly injured by lead paint as children urged the full Seventh Circuit to rehear their claims against Sherwin-Williams and other paint makers after an appellate panel reversed their $6 million trial win.
The men — Cesar Sifuentes, Glenn Burton Jr. and Ravon Owens — argued in a petition for an en banc rehearing that a three-judge panel’s verdict reversal “rewrites the script” and “creates new and significant legal hurdles” for not just their risk-contribution case, but also for more than 150 similar cases pending against The Sherwin-Williams Co. and fellow defendants DuPont Co. and Armstrong Containers Inc.
The panel found that a lower court’s improper expansion of Wisconsin liability law allowed the companies to be held liable for their capacity as paint makers despite two of them not making harmful white lead carbonate pigments for decades, thus leaving them “scrambling” to present a proper defense.
The men argue the panel’s decision regarding their negligence claims rests on the incorrect conclusion that Wisconsin law doesn’t recognize such a claim without a product defect. The panel assumed a defect was necessary because otherwise defendants could be found negligent for making and selling potentially dangerous products, and juries could find negligence despite the absence of actual negligence.
The plaintiffs, all adults now, were screened for lead poisoning between ages 2 and 3 and were found to have high levels of it in their blood. The jury’s verdict, which was later reduced to $4.8 million, found that Armstrong, DuPont and Sherwin-Williams sold white lead carbonate pigment that was “defective and unreasonably dangerous due to inadequate warnings,” and that each was a cause of the plaintiffs’ injuries. The jury let a fourth defendant, Atlantic Richfield Co. Inc., off the hook.
Lead paint was not banned for sale in the U.S. until 1978, and to this day it remains on the walls of many houses built before then, according to the U.S. Centers for Disease Control and Prevention. The agency estimates that 4 million children in the nation are currently exposed to high levels of lead, “primarily from leaded paint in the home environment.” Lead poisoning is virtually impossible to identify in a child without a blood screening.