From Scoop #25 October 11, 2005
 

Supreme Court’s Summer of Discontent
by Carl Soderberg

The summer of 2005 was a terrible season for justice in Wisconsin.  A new liberal and activist majority evolved out of a previously split to conservative Supreme Court, and this activist majority rewrote Wisconsin law to suit its own needs.  It handed down four highly activist decisions on July 14th alone, overturning decades-old precedent-setting cases, inventing entirely new standards and criteria for evaluating and analyzing legal arguments, and turning previous traditions totally on their head.

In the case of Thomas v. Mallet et al, the Supreme Court allowed a Milwaukee teen to sue paint makers, even though he doesn’t know whose paint injured him.  In Matthew Ferdon v. Wisconsin Patients Compensation Fund, the Supreme Court threw out the cap limiting non-economic damages to $350,000 in medical malpractice lawsuits.  In Wisconsin v. Knapp, the court did an end run around the US Supreme Court's limitations on the “Miranda Warning,” giving Wisconsin criminals more protection than afforded by the US Supreme Court.  In Wisconsin v. Tyrone L. Dubose, the Court accepted disputed social science research to prohibit the use of “show-up” identifications.

In the first two cases, the Court has single-handedly reversed twenty years of hard work to improve the business climate in Wisconsin and add badly needed jobs to Wisconsin’s economy.  Previous legislative efforts to reduce both individual and corporate taxes, reform the regulatory environment, reduce bureaucratic paperwork, and speed up permit  approval, have all been rendered irrelevant as the Supreme Court leads the state into a new war on business.

In the later two cases, the Court is showing its blatant, bald-faced activist turn, trying to revive the good old days when liberalism ruled the nation, embracing the pro-criminal “defendant's rights” movement of the 1960’s and 1970’s that led to sky-rocketing crime rates across the country.

Suing Lead Paint Makers

In the most shocking decision of the summer of 2005, the Wisconsin Supreme Court overturned US Circuit Court and unanimous Court of Appeals decisions, allowing a Milwaukee teenager’s trial against manufacturers of a lead paint ingredient to proceed.  Steven Thomas is a mildly retarded, neurologically damaged teen claiming that paint containing “white lead carbonate” coloring pigment, which he ate as a child, caused his mental ailments.  (Eating flaked-off paint chips and inhaling eroded paint dust is a common way children are poisoned by lead.)   In the 1990’s, Thomas lived in two Milwaukee houses, built in 1900 and 1905 which contained numerous layers of paint, some of which contained lead and some of which did not.

As a result, Thomas could not identify which paint layer or layers, in which house or houses, caused his neurological damage.  His experts could not identify which variety of white lead carbonate he ate, which exact product he ate, or which company manufactured the paint and/or pigment in the paint.  And, his experts can't prove his injuries were caused by ingesting paint -- the defense filings point out at least six other possible causes of his injuries.  All he can definitely prove is that he is injured, and that he lived in houses with lead paint.

Wisconsin Supreme Court to the Rescue

The Wisconsin Supreme Court wasn’t deterred by all this lack of evidence.  In their decision announced July 14th, the Court’s response was to haul out of cold storage a “novel and innovative” (translation:  hotly contested and highly disputed) legal theory called “Risk-Contribution Theory” (RCT).  This theory, only used once before, holds that if you can’t prove which manufacturer made a product that caused injury, everyone and anyone who manufactured that same product can be collectively held responsible for the injuries claimed.  RCT was invented by another activist Wisconsin Supreme Court in 1984, to hold all makers of a cancer-causing medicine responsible when the plaintiff suing couldn’t determine which company made the drug she received.  Several different companies manufactured the exact same version of the drug taken.

Although several states’ Supreme Courts have rejected using RCT as a framework for suing the paint industry, Wisconsin’s Supreme Court had no such qualms.

Using this theory, the plaintiff only has to prove which companies made and sold the injury-causing product.  Then the burden of proof shifts from the plaintiff to the defendants, who must prove they didn't make the product during the time it was used, or in the location it was acquired.  Defendants who can't prove their non-involvement become a “pool” of defendants collectively responsible for the injury, and the jury apportions blame among them, assigning a percentage of blame to each individual defendant based on their share of the market at the time (or times) of the injury.

The truly frightening aspect of this case is that it turns the entire notion of tort law upside down.  Traditionally, tort law is the method used to punish wrong-doers for their acts or products that harm someone, and provide a remedy (in the form of money) to the person harmed.  But using RCT violates two principles which our justice system has held sacred for centuries.

First, plaintiffs no longer have to prove “causation”-  that is, prove that the defendant’s act or product caused the injury claimed. This is an essential burden plaintiffs have previously always had to prove to win their case.  Now all plaintiffs have to show is that a defendant may have, or could have, caused their claimed injury.  A plaintiff can now be punished for injuries they may or may not have caused, or injuries caused by someone else.  Second, the Supreme Court is reversing the centuries-old legal principle of guilty until proven innocent.  Just manufacturing paint or lead pigment proves one’s guilt.

Not only does the Court’s analysis switch the burden of proof to the defense, it makes it much harder to meet that burden.  Because the plaintiff can’t prove which layer of paint caused his harm, the defendants have no way to prove they didn’t cause the harm.  Instead, they must prove that there is no possible way they could have caused the harm -- a much higher burden of proof than simply proving they didn’t cause the harm.

In this case, to prove its innocence, a paint company would have provide records, going back to 1900, showing that every can of paint they made was not sold in Wisconsin.  Pigment companies would have to show records proving that every gram of pigment they produced was put in paint not sold in Wisconsin since 1900.  And prove that none of the pigment they sold was ever resold to a third party making and selling paint in Wisconsin.  Does any company keep these kinds of records?  Even after nine decades of paint companies closing and opening, not to mention buying, selling, and merging with each other and other non-paint companies?

Usurping the Legislature -Making Social Policy

Justice Wilcox expressed in his dissent that allowing this case to proceed is textbook example of extreme judicial activism at its worst.  The Court usurped the role of the State Legislature to make social policy, instead of applying the law.

The four-member liberal activist bloc on the Court decided in their minds what social policy should be paint and pigment makers are responsible for lead poisoning, and therefore must pay, and then changed the law to “require” their preferred solution.  That Wisconsin’s laws and Constitution don’t say so is irrelevant.  Instead, they change the rules of law to reverse the burden of proof, so that their chosen “solution” can’t lose, regardless of its non-Constitutionality.

Justice Louis Butler admits as much in his written decision.  He writes that the Court is obligated to provide remedy for Steven Thomas.  Even if this means that innocent defendants will be punished, that is less worse than not providing Thomas a remedy.  He admits “the procedure is not perfect and could result in drawing in some defendants who are actually innocent.”  “We accept this as the price the defendants, and perhaps society, must pay to provide the plaintiff an adequate remedy under the law.”  After all, the paint and pigment companies have deep pockets, can insure against such losses, and can pass the cost on to the consumer.  Why should the consumers have to pay?  What wrong did they commit?  What harm to Steven Thomas did they cause?

There is one fatal flaw in this line of reasoning.  Thomas has already received a remedy.  He won settlements of $325,000 from the landlords of the two houses involved.  So what Butler is really arguing is:  The Court must grant Thomas multiple remedies.  Why stop at two remedies?  Why not sue the transport firms that delivered the paint?  Or the painters who applied the paint?  How about the house builders?  (If there was no house, there wouldn't be any lead paint injury.)  Why not the city that allowed lead paint to be used?  If two remedies are better than one, than six remedies must be even better.  Clearly the Court is looking for multiple remedies because it even allowed Thomas to sue the paint industry’s trade association.

This reminds me of the “Salvation Fuzz” sketch from Monty Python’s Flying Circus.  After the killer confesses to murdering the Bishop of Leicester, the Church Police, in their compassion, agree that “society is to blame,” and arrest everyone within reach.

Imagine a locked room with five people in it.  The lights go out.  When the lights come back on after a moment, one of the five is dead.  But forensics can’t tell which of the four survivors committed the murder.

One of them must have done it.  Why not just prosecute all four survivors?  After their conviction, all four could be given one-quarter of a life term in jail.  Simple justice, Wisconsin style.

Why is it that when liberal activist judges change the law’s legal procedures and practices, they always raise the burden of proof and make it

harder to convict criminals, and always lower the burden of proof and make it easier to sue corporations?  And why does the public always end up paying the price of their legal maneuvering?

Conclusion

Apparently, Butler thinks there is no problem that someone else can’t be blamed for.  But wait a minute - the landlords owning the paint-containing houses already lost settlements to Thomas amounting to $325,000.  Aren’t the landlords really the ones responsible for Thomas’ injuries?  If they had maintained their properties properly, there would have been no flakes and chips to eat, and no dust to inhale.  Isn’t that why they were punished?  If lead-pigmented paint is used as it is intended (properly maintained so it doesn't decay into chips and dust), it is perfectly safe.  Let's face it:  the landlords were improperly using the product.

Why is it that our lawsuit-happy legal system can’t understand the simple fact that manufacturers aren’t responsible for people using their product improperly?  Is there no room for simple common sense in law?  Until our lawsuit-happy legal system recognizes this simple fact, it will never regain the respect of the public it claims to protect.  No one will ever respect a legal system that holds third parties responsible for damage they did not cause.  Justice can only result from a fair application of the written law to all parties.  Changing the law to help the Court’s preferred “victims” can only result in injustice.