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Wisconsin Supreme Court upholds lower court dismissal of defective lead paint claim.

On July 14, the Wisconsin Supreme Court issued a unanimous ruling that affirmed the Court, of Appeals' decision that the circuit court correctly dismissed the plaintiffs claim in Godoy ex rel. v. E.I. du Pont de Nemours & Co. The state's high court concurred with the lower court's dismissing of a defective design claim in strict liability and negligence against manufacturers of white lead carbonate pigment. This represents a major victory for the paint company defendants and a setback for plaintiff attorneys pursuing personal injury lawsuits against them in Wisconsin.

The 6-0 decision limits the potential liability for the makers of lead paint facing lawsuits in Wisconsin. About 30 pending cases involving Milwaukee children who ingested paint chips are expected to go forward but the plaintiffs will not be able to make a "defective design" claim against companies, which is easier to prove.

In its ruling, the Wisconsin Supreme Court endorsed the inherent logic that: "A claim for defective design cannot be maintained here where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself. Without lead there could be no white lead carbonate pigment. We therefore conclude that the complaint fails to allege a design feature that makes the design of white lead carbonate pigment defective. Accordingly, albeit with some clarification of the rationale, we affirm the court of appeals." [Emphasis added.]

Their ruling also contained a discussion distinguishing the nature of the Godoy ruling from another high-profile personal injury case (Thomas), which came to trial based on the risk-contribution theory espoused by the Wisconsin Supreme Court. In the Thomas case, the defendants won a jury verdict based on evidence which showed that they held no special knowledge of the risks associated with lead in paint beyond what was known by the general public. The request for a review by the plaintiff Thomas has been stayed because one of the defendants--Millennium Holdings--has a parent company in bankruptcy.

"The Godoy opinion is very encouraging, because common sense and logic prevails, yet the fight by national plaintiffs attorneys to take advantage of a conducive state judicial system, which they have labored for over a decade to help foster in Wisconsin, is not over," said Tom Graves, NPCA/FSCTs Vice-President and General Counsel.

Bay Area Wood Products Rule Includes Formaldehyde Emissions Reporting Rule

The Bay Area Air Quality Management District (BAAQMD) Board on August 5 approved Rule 32 Wood Products rule, which requires wood coatings manufacturers to report formaldehyde emissions by July 1, 2012, for 2011 sales. NPCA/FSCT was not able to halt the rulemaking; however, it was able to convince BAAQMD staff to convene a future meeting with raw material suppliers, coatings manufacturers, and wood surface coating operations to discuss the issue and determine how coatings manufacturers are going to meet the reporting requirement.

This meeting will be critical since coatings manufacturers will likely need information from their resin suppliers and surface coating operation information from their customers (cure temperature, humidity, etc.). It is hoped that the meeting will result in some standard assumptions that will make estimating formaldehyde emissions relatively straightforward.

The Formaldehyde Emission repotting requirements of Rule 32 Wood Products states:

"By July 1, 2012, each manufacturer with at least 1000 gal of wood coatings sold or distributed into the District shall submit the following information for each of the wood coatings based on 2011 sales:

* 408.1 The estimated volumes of each wood coating sold or distributed into the Bay Area.

* 408.2 The estimated formaldehyde emitted during drying or curing (in grams) from each of the wood coatings sold or distributed into the Bay Area."
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Title Annotation:Regulatory/Legislative Update
Publication:JCT CoatingsTech
Date:Sep 1, 2009
Previous Article:NPCA/FSCT events.
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