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U.S. Supreme Court Refuses To Hear Risk-Contribution Constitutionality Case

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on May 18 denied certiorari in a case in which a former maker of lead-based paint had argued that Wisconsin’s risk-contribution theory violates the due process clause of the U.S. Constitution “by eliminating any meaningful causation requirement” (American Cyanamid Company v. Ernest Gibson, No. 14-0849, U.S. Sup. [ subscribers may access Supreme Court briefs for this case]). 


Ernest Gibson sued American Cyanamid Co., Armstrong Containers Inc., E.I. du Pont de Nemours and Co., Millennium Holdings LLC, NL Industries Inc., Atlantic Richfield Co. (ARCO), The Sherwin-Williams Co. and the Milwaukee Department of Health and Services in the Milwaukee County, Wis., Circuit Court, asserting liability against the former makers of lead-based paint under the risk-contribution theory of liability.

The defendants removed the case to the U.S. District Court for the Eastern District of Wisconsin, which ruled in favor of the defendants, finding that the lawsuit violated their constitutional rights.

Gibson appealed to the Seventh Circuit U.S. Court of Appeals, which ruled that under the risk-contribution theory, American Cyanamid was liable for Gibson's injuries.  On Aug. 29, 2014, the Seventh Circuit denied a petition for rehearing en banc of the court's decision that reversed and remanded the case. 

Certiorari Sought

On Jan. 16, American Cyanamid filed a petition for certiorari with the U.S. Supreme Court, arguing that Wisconsin’s risk-contribution theory violates the due process clause of the U.S. Constitution “by eliminating any meaningful causation requirement.”

Gibson contended that American Cyanamid’s petition for review should be denied because, pursuant to Supreme Court Rule 10, a petition for writ of certiorari “will be granted only for compelling reasons.”  The petition at hand contains none of the factors that a petition that is worthy of certiorari is generally thought to contain, Gibson said.

The company had filed a reply brief on April 20 in which it maintained that the Supreme Court needed to grant certiorari because the questions presented in the case “are of critical and recurring importance to U.S. businesses.” 

American Cyanamid argued that the Seventh Circuit’s refusal to apply the ruling in Eastern Enterprises v. Apfel (524 U.S. 498 [1998] [enhanced opinion available to subscribers]) conflicts with precedents of the U.S. Supreme Court.  Moreover, the Seventh Circuit’s action “widens two circuit splits,” and Gibson “effectively concedes” as much, it argued. 

Eastern Enterprises

The company insisted that Gibson alternatively contends that the Eastern Enterprises split is “academic” and “irrelevant” because the Seventh Circuit conducted a due process analysis.  However, American Cyanamid said that Gibson’s argument is “baffling.” 

While it is true that the Seventh Circuit applied the due process clause’s rational basis test, the company contended, the question in this case is whether a heightened due process test applies because Wisconsin’s risk contribution rule imposes severe, retroactive, and disproportionate liability.  “The Seventh Circuit recognized as much, spending 15 pages discussing whether a heightened Eastern Enterprises standard applied,” American Cyanamid said. 

“The court ultimately concluded that rational basis review applied because, in the court’s view, there was no ‘controlling test from Eastern Enterprises,’” it said. 

Gibson is represented by Fidelma Fitzpatrick, Robert J. McConnell and Jonathan Orent of Motley Rice in Providence, R.I., and Peter Earle of Milwaukee.  American Cyanamid is represented by Lisa Blatt of Arnold & Porter in Washington.

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