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Wisconsin Supreme Court gives victory to lead paint makers

July 15, 2009
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The Wisconsin Supreme Court ruled that children poisoned by lead paint cannot allege that manufacturers defectively designed the product since the dangerous lead was a key ingredient. According to the Associated Press, the 6-0 decision limits the potential liability of companies that made components of lead paint for decades and are now facing dozens of lawsuits by Milwaukee children who ingested paint chips. The lawsuits, including about 30 that are pending, will still move forward claiming the companies failed to warn consumers of the risks and created a market for a dangerous product, said Milwaukee attorney Peter Earle, who represents the children. But the plaintiffs now cannot add claims of defective product design, which could have been easier to prove. The case at issue involved a boy who sustained lead poisoning after ingesting paint chips while living in a Milwaukee apartment in 1998, when he was 1. The boy, now 12, suffered learning disabilities as a result, Earle said. Writing for the majority, Justice Ann Walsh Bradley said the boy and other plaintiffs cannot claim manufacturers of white lead carbonate products used as a pigment in residential paints were responsible for a design defect. "Removing lead from white lead carbonate pigment would transform it into a different product," she wrote. "Under these circumstances, we conclude that the design of white lead carbonate pigment is not defective." The defendants in the case included E.I. du Pont de Nemours & Co., Armstrong Containers, the Sherwin-Williams Co. and American Cyanamid. The federal government banned lead paint in 1978 because it can cause severe injuries such as learning disabilities and neurological damage. The court found companies were aware of the dangers of lead pigment as far back as 1904 but continued marketing their products through the 1970s. In other words, the entire industry contributed to the risk. That ruling was the first of its kind and set off a backlash against the court by business interests who claimed that companies could now be sued when their products weren''t at fault for a person''s injuries. Business groups poured millions into helping elect two new justices that they saw as friendly, and defeated Justice Louis Butler, who wrote the 2005 decision. The latest ruling leaves that decision intact, which allows the pending cases to move forward. The plaintiffs will have to prove the industry was aware of the potential risks and failed to warn consumers about them. Under a design defect claim, they would have only had to prove the product was unreasonably dangerous when it left the manufacturer.
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