A federal district court this week in Milwaukee dismissed claims against defendants named in a lawsuit under the “risk contribution” rule adopted by the Wisconsin Supreme Court in 2005.

In Thomas v. Mallett, 2005 WI 129, 701 N.W.2d 523 (Wis. 2005), the Wisconsin Supreme Court in a 4-2 decision held that the manufacturers of white lead carbonate, which was used as a pigment in paint, were liable for the injuries caused to a child who had ingested paint that contained the white lead carbonate, although the child could not prove that a particular manufacturer produced the white lead carbonate that he ingested.

The plaintiff in the case, Gibson v. American Cyanamid Co. et al., sued a number of paint manufacturers alleging injuries sustained from ingesting white lead carbonate. The plaintiff, however, was unable to prove that any of the defendants manufactured, supplied, or distributed the paint used in his house. Instead, the plaintiff relied on the controversial “risk contribution” theory under the Wisconsin Supreme Court’s Thomas decision.

U.S. District Judge Rudolph T. Randa of the Eastern District of Wisconsin granted summary judgment concluding that applying the risk contribution theory against the defendants would violate substantive due process to impose liability on a manufacturer who never actually manufactured lead paint, but only succeeded to liability through a series of mergers.

Judge Randa wrote:

All of the defendants (or their predecessors-in-interest) stopped manufacturing white lead carbonate pigment years before the risk contribution rule could have been anticipated, if it was even possible to predict such a development prior to the ruling in Thomas. All of the defendants face substantial liability through the cumulative effect of multiple lawsuits, including those are currently pending and those that could potentially be re-filed. And by eliminatiing the traditional causation requirement in tort, the only potential connection between Gibson and the defendants under the risk contribution theory is that the defendants (or their predecessors-in-interest) produced or marketed white lead carbonate for use at some point during the relevant and expansive time period: the duration of the houses’ existence.

The plaintiff’s attorney has indicated that he plans to appeal the judge’s decision.