SUPREME COURT AFFIRMS APPEALS COURT IN LEAD PAINT CASE

By Michael Horne

The Supreme Court of Wisconsin affirmed the Appeals Court ruling in the "Lead Paint" case today, Tuesday, July 14th 2009. Here is a link [http://bit.ly/Jufbz] to the PDF of the decision in Godoy v. E. I. du Pont de Nemours & Co. et al, 2006AP2670.

The court decision limits the exposure of paint manufacturers to defective product claims made by plaintiffs. This will make it more difficult for plaintiffs (children who have ingested lead paint chips) to succeed against the manufacturers.

The Appeals Court ruled, and the justices concurred (with the exception of Roggensack, who did not participate) that lead paint was not an intrinsically defective product.
The Supreme Court reasoned that lead carbonate is an essential ingredient in lead paint, and therefore the product could not be deemed defective merely due to its presence, as was alleged.
Likewise, the absence of lead carbonate would have rendered the paint a different product.

According to the decision:

"A claim for defective design cannot be maintained where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself. Without lead, there can be no white lead carbonate pigment. We therefore conclude that the complaint fails to allege a design feature that makes the design of white lead carbonate pigment defective."

This is not the first Supreme Court ruling on the case. In 2005, then-Justice Louis B. Butler issued a 161-page opinion [DECISION-%20Supreme%20Court%282%29.pdf] allowing the original suit against the manufacturers to proceed.
Butler's ruling infuriated the paint manufacturers who in turn spent millions behind the scene working successfully to unseat him. Butler, now on the short list to replace John Shabaz or Barbara Crabb in the Western District of Wisconsin, was defeated by Justice Michael Gabelman, who was among the justices issuing the opinion today. Justice Roggensack likewise did not participate in that decision.



"http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=37673"DECISION-%20Supreme%20Court%282%29.pdf