Wisconsin Lead Paint Lawsuits Against Manufacturers Rejected by Court

The Wisconsin Supreme Court has rejected arguments that the dangers of lead in lead paint constitute a defective product design, effectively shutting the door on product liability lawsuits in the state against paint manufacturers by those who suffer from lead poisoning.

The unanimous decision was announced on Tuesday, reasoning that since lead was a primary ingredient in in the paint, the design can not be called defective. The opinion stated that if the lead were removed from the paint it would cease to be the same product, holding that the paint manufacturer could not be held liable for injuries caused by the design.

The case, Godoy v. E.I. du Pont de Nemours and Co., was brought on behalf of a 12-year-old boy who suffered lead poisoning and developmental difficulties allegedly due to the consumption of paint chips in a Milwaukee apartment when he was younger. E.I. du Pont de Nemours and Co., Sherwin-Williams Co., Armstrong Containers Inc. and American Cyanamid Co. were named as defendants. Tuesday’s ruling affirmed decisions by two lower courts.

“By definition, white lead carbonate pigment contains lead. Removing lead from white lead carbonate pigment would transform it into a different product,” Justice Ann Walsh Bradley wrote in the opinion. “Under these circumstances, we conclude that the design of white lead carbonate pigment is not defective.”

Lead paint was banned in 1978 by the U.S. Consumer Product Safety Commission, due to the risk that it can cause severe and permanent brain damage and developmental problems, particularly in children. Lead paint poisoning can result in nervous system injury, brain damage, seizures or convulsions, growth or mental retardation, coma and even death.

Although the toxic paint has not been used in more than 30 years, even today, many older and poorly maintained properties contain lead paint on the walls. If the paint peals or flakes off, children can suffer high levels of lead in their blood if they ingest lead paint chips or inhale the dust.

Lead poisoning lawsuits filed against the manufacturers of the paint have generally not been very successful, as it is nearly impossible to establish who manufactured paint that has been on the wall of a home for decades.

In a rare case decided last month, a Mississippi jury awarded $7 million against Sherwin-Williams in a lead paint lawsuit filed by the family of a boy who suffered from developmental problems caused by the paint. The family was able to establish that Sherwin-Williams made the paint applied to the walls of the boy’s grandmother’s home during the 1970s. The family alleged that they had followed instructions provided by the paint manufacturer to remove the toxic paint and the child still suffered injuries from ingesting paint chips and inhaling lead paint dust.

Most successful lead paint lawsuits involve claims brought against landlords for failing to maintain older rental properties where families with young children reside. Allowing peeling or flaking lead paint to remain on the walls could expose property owners to liability for lead poisoning experienced by children years later.