Sherwin-Williams wins appellate decision from Seventh Circuit affirming defense judgments in more than 150 coordinated lead-pigment cases
Client(s) Sherwin-Williams Company, The
Jones Day client The Sherwin-Williams Company recently won a decision from the Seventh Circuit affirming final judgments in several coordinated cases against approximately 150 personal injury plaintiffs. This is Sherwin-Williams' second major appellate win in the Seventh Circuit since 2021 in coordinated lead-pigment litigation in Wisconsin federal court, and it eliminates 98% of the active claims against the company.
Under Wisconsin's unique alternative-liability regime known as the "risk contribution theory," Sherwin-Williams and other former lead pigment manufacturers were sued by over 150 plaintiffs in the late 2000s and early 2010s. All of the plaintiffs were represented by the same counsel, asserted identical negligence and strict-liability failure-to-warn claims, and waged a "coordinated campaign" among seven cases before the same federal trial judge. The District Court held in two waves of summary judgment decisions that, under Wisconsin's objective legal standard, the defendants had no duty to warn about the risks of lead-based pigments by the time of the alleged injuries in the 1990s and 2000s, but still permitted the plaintiffs' claims to go forward. In an initial appeal from three first-wave jury verdicts, the Seventh Circuit in 2021 directed judgment as a matter of law for Sherwin-Williams on all claims based on the undisputed lack of any duty to warn. Then, on remand, Sherwin-Williams persuaded the District Court to grant summary judgment against 150 plaintiffs—composing five of the seven coordinated cases—based on its prior no-duty-to-warn orders and law-of-the-case principles.
The Seventh Circuit recently affirmed those final judgments in full. Because the 150 plaintiffs had all "intentionally decided to join together under Rule 20 and proceed within [the same] complaints," they were all equally bound under law of the case by the District Court's no-duty-to-warn decisions issued against just four of them who had been selected for a second-wave trial. The Court held that the District Court's case-management use of "waves" of plaintiffs did not impliedly sever those plaintiffs' claims, so all of their co-plaintiffs were thus bound by rulings on common issues. The Seventh Circuit also emphatically affirmed its 2021 decision in the coordinated litigation, as well as the proper objective legal standard under Wisconsin law, which should compel dismissal of all claims in the few remaining cases.
Cannon v. Armstrong Containers Inc., 92 F.4th 688 (7th Cir. 2024)
