By Jim Hough

On July 14, the Wisconsin Supreme Court held that the circuit court in Milwaukee correctly concluded that the plaintiff’s complaint failed to state a claim of defective design of white lead carbonate pigment ultimately used in paint and coatings. The ruling upheld the dismissal of design defect claims in a suit alleging that certain manufacturers are liable under theories of strict (product) liability and negligence. Godoy v. E.I. du Pont de Nemours and Co. (2009 WI 78).

The decision includes an overview of product liability law in Wisconsin and a determination of the product at issue in this case and the court concludes that “lead” is an essential element of white “lead” carbonate pigment and without “lead” it would be something else. The Court distinguishes among three categories of product defects: 1) manufacturing defects; 2) design defects; and, 3) defects on a failure to adequately warn.

The Court discusses the “risk contribution” theory applied to white lead carbonate pigment in the Thomas case – but – distinguishes this case from Thomas since this case is about defective design and Thomas was based on failure to warn claims.

There are three concurring opinions that address the “consumer expectation test” followed in Wisconsin and based on the Restatement of Torts (2^nd) and the “alternative design test” based on the Restatement of Torts (3^rd) and followed in the vast majority of states.