“With the conventional legal conceptions of injury and causation set aside, a company can be shaken down in the courtroom for almost anything.”
—Corbin K. Barthold, WLF Senior Litigation Counsel

Click here for WLF’s brief.

(Washington, DC)—Washington Legal Foundation today filed an amicus curiae brief urging the Seventh Circuit to overturn trial-court rulings and jury verdicts that impose massive liability in the absence of fundamental tort elements such as injury and causation.

When they came on the market at the turn of the 20th century, paints containing white lead carbonate pigments were not only perfectly legal, but highly valued. Many decades later, however, scientists became increasingly aware of the dangers of exposure even to small quantities of lead dust. Eventually the sale of lead paint for residential use was banned nationwide.

These cases involve three Wisconsin plaintiffs who were found, during childhood medical exams, to have what is today considered an elevated blood-lead level. Each plaintiff’s blood-lead level would have been considered within the bounds of normalcy fifty years ago, and no plaintiff displays any physical symptoms of illness. Yet the district court allowed the plaintiffs to proceed to a consolidated trial, and it relieved the plaintiffs of the duty to prove injury or causation. The jury awarded multi-million-dollar verdicts against former sellers of lead pigments and lead paint.

In place of the traditional proximate-cause standard, Wisconsin has a set of six public-policy factors. WLF’s brief offers a thorough analysis of how the six factors apply in these cases. As WLF explains, in these cases every one of the six factors warrants reversal. The brief discusses intervening events, such as improvements in public health; unforeseeable events, including changes in Wisconsin law; the unbounded logic of the district court’s rulings; and other factors that bar liability.

The root problems, WLF’s brief contends, are that the plaintiffs cannot show that their elevated blood-lead levels injured them; that they cannot show that any injury was caused by the defendants; and, above all, that they cannot show that the defendants are blameworthy, are at fault, for any injury they might have caused selling products that were helpful and safe by the standards of their day.

Celebrating its 43rd year as America’s premier public-interest law firm and policy center, WLF advocates for free-market principles, limited government, individual liberty, and the rule of law.