A Wisconsin federal judge has thrown out claims in seven suits by people who allege they were exposed as children to lead in paint made by Sherwin-Williams Co., E.I. Du Pont de Nemours and Co. and others, saying the Seventh Circuit’s ruling in three of the suits dooms the claims of all of the more than 170 plaintiffs.
U.S. District Judge Lynn Adelman said the circuit court’s decision, which overturned a $6 million verdict in favor of three plaintiffs in the case, is now the law of the case and has a preclusive effect on all remaining claims in the consolidated suit, freeing the defendants, which also include Armstrong Containers Inc. and Atlantic Richfield Co.
The cases, five comprising individual claims and two multi-plaintiff suits, were brought by plaintiffs who allege that the paint in their childhood homes contained white lead carbonate, a dry white powder used as pigment in many lead-based paints, and they were exposed to it in various forms, such as the dust as the paint degraded over time.
By the time the first three cases, or the first wave, went to trial, the claims turned on two failure-to-warn theories, for negligence and strict products liability, and on a summary judgment motion in the first three cases, Judge Adelman had ruled that the negligence claims failed, because consumers in the 1990s to early 2000s, when the plaintiffs were allegedly exposed, were generally aware of the risks of lead paint, and thus the paint companies had no duty to warn.
The judge allowed the strict liability claims to go forward, however, on the basis that during the years that Sherwin-Williams made white lead carbonate, from 1910 to 1947, consumers would not have known the risks, and therefore the company had a duty to warn.
After the 2019 verdict in which the three plaintiffs were each awarded $2 million, the paint companies appealed and the Seventh Circuit later reversed, finding that Judge Adelman should have applied the same rule to both negligence and strict liability.
Following that ruling, the remaining defendants in the case moved for summary judgment on all the claims, leading to this order.
In the order, Judge Adelman first formalized the dismissal of the first-wave claims, given the Seventh Circuit’s direction that those claims be granted summary judgment.
While the four second-wave plaintiffs had moved for a reconsideration of Judge Adelman’s decision that the defendants did not have a duty to warn consumers in the ’90s and early 2000s, the judge denied the bid, saying there isn’t new information that would warrant such a move.
The second-wave plaintiffs alleged in the summary judgment filings that they had evidence showing that they couldn’t have been aware of the specific danger of white lead carbonate as dust, but the judge noted that they could have made that argument earlier; instead the plaintiffs in the first-wave, represented by the same attorneys, conceded the point at the time.
“The plaintiffs’ having made a strategic choice that they wish to change is not grounds for reconsideration,” the judge wrote.
Judge Adelman further wrote that his initial summary judgment determination about the negligence claims, and the Seventh Circuit’s findings on the strict liability claims, are now the law of the case, adding all plaintiffs were on notice that his rulings in early portions of the case would be the law of the case for later claims.
The second-wave plaintiffs were four individuals who were in the multi-plaintiff suits led by Dijonae Trammell and Maniya Allen. Judge Adelman had selected them from the group to move to trial.
While the remaining Trammell and Allen plaintiffs argued that they were not part of the same “cases,” Judge Adelman wrote that is incorrect, as their claims were included within the same docket, and they have the same counsel, showing that they had the same strategies and chose to pursue the claims under one banner.
Allowing the remaining plaintiffs to relitigate already-decided issues would undermine the point of joining the claims together in one case, the judge wrote, saying when the defendants tried to break up the case, the plaintiffs cited the judicial efficiency of litigating common questions in a single action as a reason to keep them together.
LAW360: https://www.law360.com/articles/1470506/sherwin-williams-dupont-nab-win-in-lead-paint-suits