MILWAUKEE - A federal
appeals court has revived a lead paint lawsuit in Wisconsin, which
could also reactivate more than 170 other lead poisoning cases that
have been on hold pending the outcome of court's decision.
The 7th U.S.
Circuit Court of Appeals reversed a 2010 ruling Thursday by a
federal judge in Wisconsin's Eastern District.
Judge Rudolph Randa
threw out a case involving Ernest Gibson, now 17, who suffered lead
poisoning and sued a half dozen paint manufacturers. At the time,
Randa said the "risk contribution theory" used in the case
violated the due process rights of the defendants, which made the
lead carbonate pigment.
contribution theory" was approved by the Wisconsin Supreme
Court in another lead poisoning case in 2005. The theory uses state
law to apportion liability based on the proportion of the market a
manufacturer held when the plaintiff was injured.
Peter Earle, said the appeals court ruling is "a complete
vindication" of the 2005 decision, according to a news outlet.
The state Supreme
Court in 2005 ruled Steven Thomas, a Milwaukee teenager who said he
was poisoned from lead paint chips, could sue paint manufacturers,
even if he did not know which one had made the product that caused
Supporters of the
ruling said it would ensure injured children could get justice from
an industry when there was evidence it knew its paint was toxic.
But, opponents said it created a system in which manufacturers were
guilty until proven innocent.
Gov. Scott Walker
and the GOP-majority Legislature approved a law in 2011 that undid
the Supreme Court decision for future cases. The state budget last
year included a provision aimed at blocking lead paint lawsuits that
had already been filed involving 171 children, including Gibson.
Weber, who represents defendant American Cyanmid, says the counsel
for all the companies had no comment on the ruling.
returns to federal court in Milwaukee for further proceedings.