Wisconsin Court of Appeals denies lead paint claims.

Byline: David Ziemer

Manufacturers of lead pigment can't be sued under strict liability or negligent defective design theories, the Wisconsin Court of Appeals held on Oct. 16. Ruben Baez Godoy, a minor, by his guardian ad litem, Susan M. Gramling, brought suit against manufacturers of white-lead-carbonate pigment: E.I. du Pont de Nemours and Com-pany, The Sherwin-Williams Company, Arm-strong Containers; American Cyanamid Company, BWAY Corporation, and Cytec Industries, Inc. The complaint alleged that Godoy suffered lead poisoning by ingesting white lead carbonate from paint in an apartment his family rented. The defendants made the lead carbonate that paint manufacturers used to make the paint that allegedly injured him. Milwaukee County Circuit Court Judge Francis T. Wasielewski dismissed the strict liability and defective-design claims, although the failure to warn claim survives. The court of appeals granted leave to appeal the non-final order, but affirmed, in a decision by Judge Ralph Adam Fine. The court agreed with the circuit court that lead is an inherent characteristic of white lead carbonate, and that white-lead carbonate could not be designed as white-lead carbonate without using lead. Because a product cannot be defectively designed when that design is inherent in the nature of the product, the court affirmed; even if white paint containing lead is defectively designed, because white paint can be made without white-lead carbonate, the supplier of the carbonate cannot be liable for defective design. The court analogized the case to Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis.2d 772, 629 N.W.2d 727. In Green, the Wisconsin Supreme Court upheld a defective design verdict against the manufacturer of latex gloves, because 5-17 percent of the population is allergic to latex. The court concluded that the jury could find that the gloves were defective and unreasonably dangerous. However, the defendant in Green was the manufacturer of the gloves, not the supplier of the latex. The court observed, "white-lead carbonate was the raw material for the paint that is alleged to have caused his injuries, just as natural rubber-tree-derived latex was the raw material used to make the surgical gloves in Green." The court continued, "the integration of one product, whether 'manufactured' or not, into another product that is thereby made dangerously defective, does not, by that fact alone, impose liability on the maker of the integrated...