Burton v. E.I. DuPont de Nemours and Co., Inc., No. 20-1774 (7th Cir. 2021)Annotate this Case
Plaintiffs, who grew up in Milwaukee homes that had lead-based wall paint, were diagnosed with lead poisoning as children in the 1990s or early 2000s. Years later, they sued manufacturers of white lead carbonate; they identified the paint pigment in their childhood homes as white lead carbonate, but could not identify the specific company responsible for manufacturing the white lead carbonate that they ingested. They relied on “Thomas,” in which the Wisconsin Supreme Court adopted a “risk-contribution” theory of liability for plaintiffs suing manufacturers of white lead carbonate. That theory modifies the ordinary rule in tort law that a plaintiff must prove that a specific defendant’s conduct caused his injury and instead apportions liability among the “pool of defendants” who could have caused the injury. A jury found three manufacturers liable and awarded the plaintiffs $2 million each.
The Seventh Circuit reversed, holding that the district court committed three significant errors about the scope of Wisconsin products liability law, impermissibly expanding the defendants’ potential liability and a separate error in the admission of expert testimony. The court improperly extended Thomas, allowing jurors to find the defendants liable in their capacity as paint manufacturers, rather than white lead carbonate manufacturers, erroneously allowed jurors to find Sherwin-Williams liable on negligence claims without proof of a product defect, and erroneously allowed jurors to find two defendants liable on strict liability claims in the absence of a duty to warn or any proof that the lack of a warning caused the plaintiffs’ injuries.