The U.S. Supreme Court declined May 18 to review a lower court ruling that a Milwaukee teen can sue lead paint manufacturers based on their various contributions to the risk of lead poisoning, even without proof a particular company's product caused his illness, the Milwaukee Journal-Sentinel reported today.

The refusal to grant a writ of certiorari in the case of Gibson v. American Cyanamid in effect supports a key decision made in the case last year by the U.S. 7th Circuit Court of Appeals. The case achieved noteriety at the state court level in 2005 when the Wisconsin Supreme Court issued a rule in the case that so outraged business interests they backed a challenger who beat the decision's author in a subsequent election.

At issue was the question of whether plaintiff Ernest Gibson could sue former manufacturers of white lead carbonate pigments, a component used in paint prior to it being outlawed in 1987. Because he didn't know which company's white lead contributed to his health condition, Gibson sued under the "risk contribution" theory of tort liability. The Wisconsin Supreme Court backed Gibson, so the manufacturers appealed to a U.S. District Court, which held that the risk-contribution theory violated the due process clause of the Constitution and thus ruled for the manufacturers. The federal appeals court then reversed that district court judgment and reinstated Gibson's case.
The Journal-Sentinel added:

"Lead carbonate makers say risk contribution theory is arbitrary and irrational because it eliminates the traditional tort requirement that a plaintiff prove a defendant caused the injury and second, that the theory changes the rule of liability after the conduct at issue. Gibson's case, along with 173 others, can now start moving forward. [Attorney Peter Earle, who represents the defendant] said while Monday's U.S. Supreme Court action might lead to settlements among some defendants, we think some will never settle.'"