Cases & Deals

Sherwin-Williams obtains favorable decision from Seventh Circuit in personal injury cases

Clients Sherwin-Williams Company, The

A Jones Day cross-office, cross-practice team obtained a precedential decision from the Seventh Circuit that directed judgment as a matter of law for The Sherwin-Williams Company following a consolidated trial of three personal injury plaintiffs claiming injury from their exposure to white lead carbonate pigments (WLC). The decision will dramatically re-shape another 150 personal injury cases pending in Wisconsin against former WLC manufacturers.

In its 2005 decision in Thomas v. Mallett, the Wisconsin Supreme Court held that former WLC manufacturers could be liable for contributing to the risk of lead exposure in a plaintiff’s neighborhood if the manufacturers made WLC after the plaintiff’s residence was built. Despite a unanimous defense jury verdict in Thomas, plaintiffs’ attorneys filed over 150 product liability lawsuits also alleging “risk contribution” claims in the Eastern District of Wisconsin, all of which were assigned to the same trial judge.

A cross-office team tried the consolidated cases in 2019 on ordinary negligence and strict liability failure to warn claims. Plaintiffs claimed brain damage and lost IQ because of their lead exposure. Sherwin-Williams faced a number of unfavorable pre-trial rulings on the legal standards for risk-contribution, negligence and strict liability. Just weeks before trial, the trial court also expanded the company’s potential liability from its own WLC to paints containing any company’s WLC. After over a month of testimony, a jury found Sherwin-Williams and two co-defendants liable. All appealed.

A three-judge panel of the Seventh Circuit unanimously reversed and directed that the trial court enter judgment as a matter of law in Sherwin-Williams’ favor. In a 62-page decision that adopted many of Sherwin-Williams’ arguments, the Circuit Court held that it was legal error to expand the risk-contribution theory to paints containing WLC that a defendant did not make; Wisconsin law requires a defect for product-based negligence claims; and the warning claims failed because plaintiffs and the public knew the health risks of WLC to children before plaintiffs’ alleged exposure in the 1990s and 2000s. The court also held that the testimony of plaintiffs’ causation expert should have been excluded as unreliable. It also favorably clarifies the legal principles that will govern all other risk-contribution cases still pending in the District Court.

Glenn Burton, Jr. v. Sherwin Williams Company, 20-1781 (7th Cir. 2021); Ravon Owens v. Sherwin Williams Company, 20-1783 (7th Cir. 2021); Cesar Sifuentes v. Sherwin Williams Company, 20-1784 (7th Cir. 2021)