172 plaintiffs in Wisconsin sued a variety of companies that at one time or another produced while lead carbonate pigments for paint. The plaintiffs cannot prove which company produced the pigments that are alleged to have injured them, but a federal appeals court allowed them to use a novel tort theory called "risk contribution," which holds a manufacturer liable if it "may have provided the product which caused the injury" and therefore "contributed to the risk of injury." The lower court's decision makes companies subject to severe, retroactive, unanticipated and disproportionate liability. For one defendant, liability may reach back to its activities between 1917 and 1924.
The NAM filed an amicus brief 2/13/15 supporting Supreme Court review of this ruling. We argued to keep in place fundamental liberty and property rights, along with the due process guarantee encompassed by the bedrock principle that proof of causation is required for tort liability. We emphasized that the collective liability theory endorsed in this case is only one example of a broader attack against the requirement of proving causation. These theories include market share liability, alternative liability, enterprise liability, commingled product liability, and risk contribution, all holding a defendant individually liable for injuries that may have been caused by other defendants who sold similar products or engaged in similar operations. Public nuisance claims have also been raised to avoid traditional product liability proof.
We urged the Court to review and overturn the Seventh Circuit's decision, which is a stark example of how far the courts can depart from settled causation requirements.
On May 18, 2015, the Court declined to review this appeal, so the Seventh Circuit's decision stands.