Product Liability -- 2021



Burton, et al. v. Armstrong Containers Inc., et al.   (7th Circuit)

Expansion of risk contribution theory

The MCLA filed an amicus brief urging the Seventh Circuit Court of Appeals to reverse the trial court's improper expansion of Wisconsin's risk contribution theory and departure from long-standing tort liability principles for products with inherent risks, which threatens to create open-ended, industry-wide category liability based solely on those inherent risks. The core issue in the case is how to address recent harms allegedly caused by lawful products (here, white lead carbonate pigments used in interior paints) manufactured, marketed and sold at a time when the products were valued despite generally known risks. Rather than pursue the party who created the actual hazardous condition causing the injury, this lawsuit and others like it target the manufacturers merely for having sold the products, often many years ago. The NAM, joined by Wisconsin Manufacturers and Commerce and the Coalition for Litigation Justice, filed an amicus brief arguing that the trial court committed two fatal errors: first, allowing risk contribution theory to apply, thereby spreading liability across multiple companies even if they did not make the product at issue, without following Wisconsin’s requirements for doing so; and, second, relaxing or reversing the burdens of proof for key elements of the underlying causes of action to impose liability solely because the companies were part of an industry that made or sold products that a jury, sitting with decades of hindsight, could find had unacceptable risks. This case is important for all manufacturers because altering causation and other elements of tort and product liability law to create industry-wide category liability undermines the way technology develops and safety measures are undertaken. On April 15, 2021, the 7th Circuit agreed with NAM's position, rejecting the plaintiffs' expansive theory of liability.


Related Documents:
Opinion  (April 15, 2021)
NAM brief  (July 24, 2020)