- Associated Press - Friday, April 15, 2016

MADISON, Wis. (AP) - Wisconsin’s Supreme Court justices said Friday that they are deadlocked on whether lawmakers improperly barred attorneys from using a legal theory supporting dozens of lead paint poisoning lawsuits and have asked a lower court to make a decision.

The high court said it came to a 3-3 impasse on whether the Legislature acted properly in banning lawyers in 2013 from using the risk contribution theory as the basis for all pending lead paint poisoning lawsuits. The court kicked the case back to the 1st District Court of Appeals. That court hasn’t given any indication of how it might rule.

The risk contribution theory apportions liability based on a paint manufacturer’s market share, enabling lawsuits to proceed even if the plaintiffs aren’t sure which specific manufacturer’s paint poisoned them. The state Supreme Court validated the theory in 2005, leading to nearly 175 lawsuits, according to court documents.

Republican lawmakers in 2011 passed a law preventing attorneys from using the theory as the basis for lawsuits going forward. Two years later, they amended the law to invalidate the theory in all pending lawsuits, effectively quashing them.

Peter Earle is an attorney who filed a lawsuit in 2006 on behalf of Yasmine Clark, who alleges she was poisoned by lead paint at Milwaukee rental properties in 2003 and 2004 when she was two to three years old. He asked Milwaukee County Circuit Judge David Hansher to declare that such a retroactive prohibition on the theory amounted to an unconstitutional violation of due process. The judge agreed in March 2014. Several months later, the 7th U.S. Circuit Court of Appeals allowed another case based on the risk-contribution theory to continue, saying the Legislature couldn’t apply the prohibition retroactively.

A group of paint makers, including The Sherwin-Williams Company, asked the 1st District Court of Appeals to overturn Hansher. The appellate court sent the case directly to the state Supreme Court in September 2015, citing a pressing need for a final resolution and noting that a finding supporting the Legislature would conflict with the 7th Circuit. The state Supreme Court accepted the case in December.

The state Supreme Court held oral arguments in Clark’s case on April 5. The justices said in a two-page decision Friday - less than two weeks after the arguments - that justices Patience Roggensack, Shirley Abrahamson and Ann Walsh Bradley would affirm Hansher but justices David Prosser, Annette Ziegler and Michael Gableman would reverse him. Justice Rebecca Bradley didn’t participate in the case.

Republican Gov. Scott Walker appointed Bradley to the court in October to fill the late Justice Patrick Crooks’ seat. She won election to the seat on April 5, the same day as oral arguments in the Clark case. Supreme Court spokesman Tom Sheehan said she chose not to participate when the case arrived at the high court in December.

Bradley served as a judge in Milwaukee County and on the 1st District Court of Appeals before joining the Supreme Court.

Earle didn’t immediately respond to an email seeking comment on the deadlock. Tony Dias, an attorney for Sherwin-Williams, said in a statement that his team looks forward to arguing the case before the appeals court and continues to believe the law should be upheld.


Follow Todd Richmond on Twitter at https://twitter.com/trichmond1

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