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Thomas v. Mallett7/15/2005
of a raw material that is later incorporated into a finished product that causes injury. This result is neither just, fair, nor grounded in the law. While it is understandable to feel saddened by the injuries suffered by the plaintiff, what is also tragic is that in its rush to condemn the entire lead paint industry, the majority ignores one of the most basics tenants of our justice system----an individual determination of wrongdoing.
I am authorized to state that Justice DAVID T. PROSSER joins this dissent.
DAVID T. PROSSER, J. (dissenting).
Four years ago the City of Milwaukee filed suit against NL Industries, Inc. of Dallas, Texas, and Mautz Paint Company of Madison, alleging that the companies were responsible for creating a public nuisance in the City's old housing stock by marketing and selling substantial quantities of lead pigments and/or lead-based paint. City of Milwaukee v. NL Indus., Inc., 2005 WI App 7, -4, 278 Wis. 2d 313, 691 N.W.2d 888.
The City asked the two defendants to pay the costs associated with its lead abatement program, which it estimated to be more than one hundred million dollars. Id., , 5. More specifically, the City sought (1) compensatory and equitable relief for abatement of the toxic lead hazards in Milwaukee homes; (2) restitution for amounts expended by the City to abate the toxic lead hazards in Milwaukee homes; and (3) punitive damages.
The circuit court dismissed the City's claim for public nuisance, concluding that the City could not show that these particular defendants caused their lead-based paint to be applied to any of the specific buildings included in the alleged public nuisance. Id., , 14-19. The court of appeals reversed. The matter is now awaiting a decision by this court in the present litigation.
In the meantime, Mautz Paint, a long-time Wisconsin corporation founded in 1892, sold its business to Ohio-based Sherwin-Williams in November 2001. The company cited financial pressure brought on by Milwaukee's lead paint lawsuit. All Madison-based Mautz manufacturing has ceased.
The City of Milwaukee's lead paint lawsuit provides us with a window to the future. When the court issues its decision in this case, every person under the age of 20 who claims a lead paint injury in Wisconsin will have a cause of action in our courts. Every person in the United States who has a lead paint injury that could have come from a Wisconsin-based company and can survive the limitations periods in his own state may have a cause of action. Every municipality in this country that has a lead abatement program and can make a plausible argument that Wisconsin-made lead paint or white lead carbonate injured its residents may follow the City of Milwaukee and seek redress in this state. Wisconsin will be the mecca for lead paint suits. There is no statute of repose on products liability here, and this court has now created a remedy for lead paint poisoning so sweeping and draconian that it will be nearly impossible for paint companies to defend themselves or, frankly, for plaintiffs to lose.
Because the majority opinion creates a cause of action that violates due process of law, equal protection of the law, and nearly every principle of sound public policy in tort cases, I dissent.
FACTUAL BACKGROUND
Steven Thomas, now 15, lived in several houses in Milwaukee during his formative years. These houses include (1) 2652 North 37th Street; (2) 2654 North 25th Street; and (3) 4736 North 37th Street. The first house at 2652 North 37th Street was built in 1905. The second house at 2654 North 25th Street was built in 1900.
Thomas clai
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