Regulatory/Legislative Update
Wisconsin Supreme Court Upholds Lower Court
Dismissal of Defective Lead Paint Claim
On July 14, the Wisconsin Supreme
Court issued a unanimous ruling that
affirmed the Court of Appeals’ decision
that the circuit court correctly dismissed
the plaintiff’s claim in Godoy ex rel. v.
E.I. du Pont de Nemours & Co. The state’s
high court concurred with the lower
court’s dismissing of a defective design
claim in strict liability and negligence
against manufacturers of white lead carbonate pigment. This represents a major
victory for the paint company defendants and a setback for plaintiff attorneys pursuing personal injury lawsuits
against them in Wisconsin.
The 6–0 decision limits the potential
liability for the makers of lead paint facing lawsuits in Wisconsin. About 30
pending cases involving Milwaukee
children who ingested paint chips are
expected to go forward but the plaintiffs
will not be able to make a “defective
design” claim against companies, which
is easier to prove.
In its ruling, the Wisconsin Supreme
Court endorsed the inherent logic that:
“A claim for defective design cannot be
maintained here where the presence of
lead is the alleged defect in design, and
its very presence is a characteristic of the
product itself. Without lead there could
be no white lead carbonate pigment.
We therefore conclude that the complaint fails to allege a design feature
that makes the design of white lead carbonate pigment defective. Accordingly,
albeit with some clarification of the
rationale, we affirm the court of
appeals.” [Emphasis added.]
Their ruling also contained a discussion distinguishing the nature of the
Godoy ruling from another high-profile
personal injury case (Thomas), which
came to trial based on the risk-contribu-tion theory espoused by the Wisconsin
Supreme Court. In the Thomas case,
the defendants won a jury verdict based
on evidence which showed that they
held no special knowledge of the risks
associated with lead in paint beyond
what was known by the general public.
The request for a review by the plaintiff
Thomas has been stayed because one of
the defendants—Millennium Holdings
—has a parent company in bankruptcy.
“The Godoy opinion is very encouraging, because common sense and logic
prevails, yet the fight by national plaintiffs attorneys to take advantage of a
conducive state judicial system, which
they have labored for over a decade to
help foster in Wisconsin, is not over,”
said Tom Graves, NPCA/FSCT’s Vice-President and General Counsel.
Bay Area Wood Products Rule
Includes Formaldehyde
Emissions Reporting Rule
The Bay Area Air Quality Management District (BAAQMD) Board on
August 5 approved Rule 32 Wood Products rule, which requires wood coatings
manufacturers to report formaldehyde
emissions by July 1, 2012, for 2011 sales.
NPCA/FSCT was not able to halt the
rulemaking; however, it was able to convince BAAQMD staff to convene a future
meeting with raw material suppliers,
coatings manufacturers, and wood surface coating operations to discuss the
issue and determine how coatings manufacturers are going to meet the reporting requirement.
This meeting will be critical since
coatings manufacturers will likely need
information from their resin suppliers
and surface coating operation information from their customers (cure temperature, humidity, etc.). It is hoped that
the meeting will result in some standard assumptions that will make estimating formaldehyde emissions
relatively straightforward.
The Formaldehyde Emission reporting requirements of Rule 32 Wood
Products states:
“By July 1, 2012, each manufacturer
with at least 1000 gal of wood coatings
sold or distributed into the District
shall submit the following information
for each of the wood coatings based on
2011 sales:
• 408.1 The estimated volumes of
each wood coating sold or distributed
into the Bay Area.
• 408.2 The estimated formaldehyde
emitted during drying or curing (in
grams) from each of the wood coatings
sold or distributed into the Bay Area.”
