How a Wisconsin law created a hidden deadline for lead poisoning lawsuits

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In Brief:

• Wisconsin Act 2 signed by Gov. Scott Walker in 2011
• Risk contribution theory eliminated for cases after February 1, 2011
• Wisconsin Supreme Court allowed risk contribution theory in 2005
• Only one ongoing lead paint lawsuit in Milwaukee County as of 2021

Thousands of children have been poisoned by lead paint found in older homes across Milwaukee and Wisconsin.

Their chance to sue the companies responsible is vanishing.

In 2011, Wisconsin lawmakers approved Act 2, which severely limited the ability of lead-poisoned children to sue paint companies after that year.

But it left open the ability of children poisoned before 2011 to sue without proving which exact company made the toxic paint that harmed them.

Now, because of the state’s existing statute of limitations law, the window is closing for those children, too.

By 2031, it will be functionally impossible for anyone poisoned by lead in Wisconsin to sue a paint company and win, according to attorneys who have brought such cases.

“All lead cases are dead in the water,” said Victor Harding, an attorney who represents lead-poisoned children and their families.

Here’s what to know about lead paint lawsuits, Act 2 and the high burden of proof facing those who have been poisoned by lead:

Why have families sued paint companies over lead poisoning?

Lead is a highly toxic metal that can cause behavioral and cognitive disorders, particularly in children.

The federal government banned lead paint for residential use in 1978, but many homes in Milwaukee were built before then.

In suing lead paint companies, families have sought monetary damages, in part to help pay for health expenses, housing improvements and compensation for cognitive disabilities caused by the lead paint.

What have paint companies argued in the lawsuits against them?

In legal filings, paint companies have argued the plaintiffs’ injuries were caused by a source other than the paint companies’ products or by others’ actions or inactions.

In the companies’ favor: It is extremely difficult to prove when and how someone was poisoned by lead.

Have Wisconsin families been successful in suing paint companies?

Rarely.

In 2005, the Wisconsin Supreme Court ruled in favor of a child, Steven Thomas, who sued in 1999 after he was poisoned in his Milwaukee home and suffered cognitive damage as a result.

In a 4-2 ruling, the justices found that Thomas could sue paint manufacturers, even if he did not know which company had made the paint that poisoned him, using a concept known as “risk contribution theory.”

This decision prompted other people to bring cases forward, but since then, there have been legislative setbacks and few legal victories for those plaintiffs.

What does ‘risk contribution theory’ mean?

In the Thomas case, the state Supreme Court found that paint companies could be liable if they manufactured or marketed lead paint when the child was poisoned.

It was the first case applying “risk contribution theory” to lead poisoning. The concept allows plaintiffs to file a personal injury case without knowing which company produced the harm-causing product.

Each company’s liability was determined by its share of the local market.

What was 2011 Act 2, and who signed it?

In 2011, Gov. Scott Walker signed Act 2 into law.

Act 2 eliminated the use of risk contribution theory in lead poisoning cases after Feb.1, 2011.

At the time, Walker said the law, one of five pieces of legislation he championed immediately after taking office, would “create a more stable tax and regulatory environment, so business owners can focus on growing jobs.”

Recent efforts to reach Walker were not successful.

The law did not affect those with pending lawsuits.

Later legislation tried to block those pending lawsuits, but a federal appeals court found one case could proceed.

Walker and other Republican lawmakers faced criticism for these legislative moves, especially after it became public that the owner of NL Industries, a producer of the lead formerly used in paint, had donated $750,000 to a political group supporting Republicans between 2011 and 2012.

Peter Earle, an attorney who filed lawsuits on behalf of lead-poisoned children, has criticized Act 2 since its passage. Now, he still finds fault with the law and continues to consider challenging its constitutionality — a legal battle he knows would be difficult.

“Children poisoned before that date, it’s the same wrongful act as children poisoned after that date, and they are treated differently under Wisconsin law,” he said.

Why are people running out of time to sue paint companies over lead poisoning?

A combination of Act 2 and the state’s existing statute of limitations has created a closing window for lead paint lawsuits.

Under Wisconsin’s statute of limitations, children cannot file a civil lawsuit themselves until they reach 18. From there, they have two years to sue for injuries suffered as a child.

So if a child was poisoned before 2011, they have until age 21 — or until 2031 — to sue a lead paint company for their injuries under risk contribution theory.

Why is it so hard for families to win these lawsuits without ‘risk contribution theory’?

In the last century, multiple companies were mass-producing and distributing lead paint.

That means it’s very difficult to identify who is at fault for a child ingesting the paint, Earle said.

Those who bring the lawsuits must prove there was white lead carbonate on walls, he said, adding that the walls can contain more than 40 layers of paint and other forms of lead.

Paint companies know plaintiffs’ chances of winning are slim, said Harding, another attorney who takes such cases.

“They know we can’t prove … who was the manufacturer of the paint that poisoned the kids,” he said.

And if they can’t prove the specific manufacturer, then there’s no chance of winning the lawsuit, he said.

How many lead-related lawsuits against paint companies are underway in Milwaukee County?

In Milwaukee County, there’s only one ongoing lead paint lawsuit against a manufacturer — and it shows how fiercely companies fight these legal claims.

Arrieona Beal’s case, filed in 2021, does use “risk contribution theory” and names several companies as defendants.

During a December hearing, more than a dozen lawyers appeared by Zoom or in person.

Attorneys for the companies asked Beal’s sisters to provide their own psychological records. In dispositions, they were questioned about other relatives’ mental health histories that even the sisters had been unaware of.

The companies were trying to find other explanations for Beal’s health problems besides lead paint, said Nick Harris, an attorney who represents Beal.

Harris criticized the defense tactics.

“They’re going to blow up your family even more by exploiting the deep and darkest, most private things about your family and personal life,” he said.

Lawyers representing Sherwin-Williams and Atlantic Richfield, companies named in Beal’s lawsuit, declined to comment for this article.