Insights & Events

In February 2015, Hollingsworth LLP filed an industry coalition amicus brief urging the U.S. Supreme Court to grant certiorari in Gibson v. American Cyanamid.

Gibson arises out of a Wisconsin Supreme Court ruling in 2005 whereby historical manufacturers of lead pigment could be held liable, without proof that a plaintiff was exposed to any defendant’s particular product, on the basis of collective liability.  (Thomas v. Mallet, 285 Wis.2d 236 (2005).)  The federal district court in Gibson held that the collective liability theory violated the defendants’ constitutional right to due process and dismissed the case.  On appeal, however, the Seventh Circuit reversed, concluding that “risk contribution theory is not arbitrary and irrational, nor is it unexpected and indefensible.”  Gibson v. American Cyanamid Co., 760 F.3d 600, 623 (7th Cir. 2014).  The court continued:  “the Wisconsin Supreme Court rationally concluded that, under the state’s common law, ‘it is better to have the Pigment Manufacturers or consumers share the cost of injury rather than place the burden on the innocent plaintiff.’  Id.  There is nothing irrational about developing the state’s common law to prevent the manufacturers from avoiding liability for injuries caused by risks to which they contributed.”  Id. at 624.

Although the Wisconsin legislature has now statutorily rejected this risk contribution theory for claims that accrued after the statute’s enactment in 2011, the Seventh Circuit also struck a separate provision of that statute that would bar the risk contribution theory for claims that had already accrued as of that date.  This holding, in combination with the tolling of the statute of limitations for minors, raises the potential for lead pigment risk contribution claims stretching out for many years in the future.

The cert petition in Gibson seeks the Supreme Court’s review (and ultimate) reversal of the Seventh Circuit ruling and a holding that the risk contribution theory violates their rights to due process because it is impermissibly retroactive and because it deprives defendants of their constitutional right to defend against plaintiffs’ personal injury claims based upon a lack of causation.  The Hollingsworth amicus brief focuses particularly on the latter argument, by tracing the tort law causation requirement back to pre-Revolutionary times and explaining how the principles underlying the causation requirement are embedded in the Constitution itself.  As the amicus brief explains:

“The decision below strikes at the heart of a well-settled principle of American jurisprudence: That an individual will not be held liable for injuries to another unless a causal relationship between that individual and the injuries is demonstrated.  This principle is founded in the core concepts of individual liberty and natural law that shape our legal system and in the social contract embodied in the Constitution’s protection against deprivation of life, liberty and property without due process of law.  The Seventh Circuit’s disregard of this principle and its extraordinary retroactive imposition of liability without proof of causation for lawful conduct dating back to the first half of the 1900s cannot survive constitutional scrutiny.”

The amicus brief goes on to explain that, “[w]hile particularly extreme in its application, the risk contribution rule endorsed by the Seventh Circuit is illustrative of a broader trend in which courts are applying novel tort theories by which individuals are forced to pay damages for injuries without proof of causation.  These theories of liability without causation ignore traditional practice dating back to pre-Revolutionary times and pose a direct threat to the fabric of our constitutional system.”