Apr 13, 2016

Wisconsin Attorney General Submits Brief in Support of State Legislature’s Overruling of Thomas

Last month, Wisconsin State Attorney General Brad Schimel submitted a brief supporting defendants/appellants, Milwaukee County Department of Health and Human Services and NL Industries, Inc., in a case before the Wisconsin Supreme Court. In the case, Yasmine Clark, a minor, by her guardian Ad Litem, Susan M. Gramling v. American Cyanamid Company, et al., the plaintiff is challenging the 2013 Wisconsin law that retroactively undid a legal decision, Thomas, which briefly allowed a "risk contribution" theory of liability.

Oral arguments in the case are scheduled for April 5.
In 2005, in the case of Thomas v. Mallett, the Wisconsin Supreme Court said that a plaintiff does not have to prove who actually made the product alleged to have harmed him. Under Thomas, a plaintiff can sue all the manufacturers who were in the market at the relevant time and, if the case is successful, each will share liability for the "risk" to which they have "contributed." However, in 2011, the Wisconsin legislature modified this "risk contribution" theory in a way that makes it inapplicable to lead-based paint cases; as such, cases cannot be brought today using the risk contribution theory.

In the statement of interest of his brief, the attorney general states that "when a law's constitutionality is at stake, the Wisconsin Attorney General is 'entitled to be heard.'" He argues that the Thomas case was wrongly decided, and the legislature was right to overrule it. In that case, Steven Thomas ingested lead paint as a child in the early 1990s, but because the two houses he lived in were built in early 1900s, he could not identify the manufacturer of the paint. The brief posits that the court decision in Thomas wrongly eliminated the standard causation requirement, and that by overruling the Thomas decision in 2011, the legislature restored a hundred years of established expectations that the Thomas six-year tenure had unsettled. In fact, the brief says that the legislature advanced the public interest and restored private settled expectations by overruling Thomas in all of its applications.

In the case, Clark also argues that the legislature violated separation of powers principles by overruling Thomas, suggesting that Thomas's rule was constitutionally required. But the attorney general cited case law that the legislature can "repeal the common law, as long as the change does not conflict with the constitution," and that the legislature has the authority and duty to overturn wrongly decided, common-law cases. As such, he said that Clark's separation of powers and arguments are entirely meritless, and the legislature exercised this authority wisely when it completely overturned Thomas, protecting businesses in Wisconsin from being subject to this unfair and arguably unconstitutional decision.

According to the attorney general's brief, "the law does not violate due process or any other constitutional provision. Rather, it advances core interests grounded in due process and basic fairness by restoring expectations that had been settled for a century before Thomas."

In 2011, ACA supported civil justice fairness for conducting business in Wisconsin and to help the state's economic recovery. Wisconsin was the lone state to permit a "risk contribution" theory of liability, whereby even companies selling legal, necessary products in Wisconsin can be held liable, long after the fact, despite the acknowledgement that these products may have had nothing to do with the alleged damages claimed by the plaintiff. ACA, on behalf of its paint manufacturers in the state and throughout the United States, had successfully urged passage of the Special Legislative Session package of legal reforms by the Wisconsin state legislature to restore fairness and balance.

ACA believes that those civil justice reforms now help expedite legitimate claims, while preserving legitimate, necessary commerce against trial attorney litigation based on novel theories of liability unfounded by proper evidence and proof of actual causation.

Read More By Tom Graves