The U.S. Court of Appeals for the Seventh Circuit recently held unconstitutional a 2013 amendment, that applied retroactively 2011 Wisconsin Act 2’s language overturning the Thomas v. Mallet case involving the risk-contribution theory.
Background
In 2005, the Wisconsin Supreme Court issued a controversial decision, Thomas v. Mallet, 2005 WI 129, where Wisconsin became the first state in the nation to adopt the “risk-contribution” theory for lead pigment claims. In Thomas, the plaintiff argued that he could not identify which manufacturer made the white lead carbonate pigment that caused the injury and therefore sued numerous manufacturers. Under the risk-contribution theory adopted by the Court in Thomas, the plaintiff was relieved of the traditional requirement of having to prove that a specific manufacturer caused the plaintiff’s injury.
In 2011, Gov. Scott Walker called the Wisconsin Legislature into a special session and introduced comprehensive tort reform legislation that eventually became 2011 Wisconsin Act 2. Act 2 included language overturning the Thomas decision and eliminating the risk-contribution theory. (2011 Wisconsin Act 2 was codified as Wis. Stat. § 895.046). The language in Act 2 eliminating the risk-contribution theory applied prospectively and did not apply to cases pending or filed prior to the effective date of Act 2. Click here for more information about Act 2 and the language extinguishing the risk-contribution theory.
In 2013, the Wisconsin Legislature inserted language in the 2013-15 Budget Bill (2013 Wisconsin Act 20) that amended 2011 Wisconsin Act 2 by applying the law retroactively to cases filed prior to enactment of Act 2. That provision became s. 895.046(1g).
Gibson v. Cynamid Co. – 7th Circuit Court of Appeals Decision
On Thursday, July 24, the U.S. Court of Appeals for the Seventh Circuit issued its decision in Gibson v. American Cyanamid Co. (No. 10-3814) in which the defendant-manufacturers challenged the constitutionality of the Wisconsin Supreme Court’s Thomas decision adopting the risk-contribution theory of liability for lead pigment claims.
Similar to the plaintiff in Thomas, the plaintiff in this case brought negligence and strict liability claims against the pigment manufacturers. The plaintiff in Gibson similarly could not identify which manufacturer made the white lead carbonate pigment and therefore relied on the Thomas Court’s adoption of the risk-contribution theory in filing a lawsuit against numerous manufacturers. The lawsuit was filed before Act 2 went into effect. As the case was proceeding, the Wisconsin Legislature enacted 2013 Wisconsin Act 20, which applied the law removing the risk-contribution theory for cases filed on or before that law went into effect.
The manufacturers argued two things in this case: 1) that the Thomas v. Mallet case adopting the risk-contribution theory violated due process under the U.S. Constitution, and 2) that the Wisconsin Legislature amended 2011 Wisconsin Act 2 to apply the law retroactively, thereby extinguishing the risk-contribution theory in this case.
The 7th Circuit disagreed with the manufacturers. First, the Court held that retroactive application of 2011 Wisconsin Act 2 to cases filed before the effective date was unconstitutional. It’s important to note that the Court did not strike down all of the current statute removing the risk contribution theory. Instead, the Court narrowly held that the 2013 amendment to the law applying the language retroactively to cases filed prior to the law’s enactment was unconstitutional. Therefore, s. 895.046 still applies to cases filed on or after enactment of 2011 Wisconsin Act 2. The law does not apply to cases filed before its enactment.
Second, the 7th Circuit held that, for cases filed prior to enactment of 2011 Wisconsin Act 2, the Wisconsin Supreme Court’s decision in Thomas, establishing the risk-contribution theory, does not violate due process, takings, or interstate commerce clauses of the U.S. Constitution.
Conclusion
The Court’s decision does not strike down the language in 2011 Wisconsin Act 2 overturning the Thomas v. Mallet decision for cases filed on or after the effective date of Act 2. Instead, the decision held that the subsequent law enacted by the Wisconsin Legislature retroactively applying Act 2’s language pertaining to risk-contribution to cases filed before the law went into effect was unconstitutional. Therefore, 2011 Wisconsin Act 2’s language extinguishing the risk-contribution theory will continue for cases filed on or after the effective date of 2011 Wisconsin Act 2.