Legislature Adopts Budget Provision Retroactively Applying Lead Paint Provisions

In 2011, Gov. Scott Walker introduced and the Legislature passed the omnibus civil liability reform bill (2011 Wisconsin Act 2). One of Act 2’s provisions overturned the Thomas v. Mallet decision, which established the “risk contribution” theory in lead paint cases. The legislature is considering retroactively applying the Act 2 standard to all cases.


Specifically, Act 2 requires the claimant to prove that the manufacturer made the specific product responsible for the injury. Act 2 further provides that if a claimant cannot identify the manufacturer of the specific product, and no other method of recovery is available, the court may apportion the liability to more than one manufacturer of the specific product liable for the injury. Act 2 was originally drafted to apply prospectively only.

The 2013-15 budget would amend Act 2’s language dealing with product liability to retroactively apply to all cases, whenever filed or accrued. The underlined language contains the specific changes to existing law:

SECTION 2318g. 895.046 (2) of the statutes is amended to read:895.046 (2) APPLICABILITY. This section applies to all actions in law or equity, whenever filed or accrued, in which a claimant alleges that the manufacturer, distributor, seller, or promoter of a product is liable for an injury or harm to a person or property, including actions based on allegations that the design, manufacture, distribution, sale, or promotion of, or instructions or warnings about, a product caused or contributed to a personal injury or harm to a person or property, a private nuisance, or a public nuisance, and to all related or independent claims, including unjust enrichment, restitution, or indemnification.

The legislation also includes a “Legislative Findings and Intent” section explaining the purpose of the law change:

895.046 (1g) LEGISLATIVE FINDINGS AND INTENT. The legislature finds that it is in the public interest to clarify product liability law, generally, and the application of the risk contribution theory of liability first announced by the Wisconsin Supreme Court in Collins v. Eli Lilly Company, 116 Wis. 2d 166 (1984), specifically, in order to return tort law to its historical, common law roots. This return both protects the rights of citizens to pursue legitimate and timely claims of injury resulting from defective products, and assures that businesses may conduct activities in this state without fear of being sued for indefinite claims of harm from products which businesses may never have manufactured, distributed, sold, or promoted, or which were made and sold decades ago. The legislature finds that the application of risk contribution to former white lead carbonate manufacturers in Thomas v. Mallet, 285 Wis. 2d 236 (2005), was an improperly expansive application of the risk contribution theory of liability announced in Collins, and that application raised substantial questions of deprivation of due process, equal protection, and right to jury trial under the federal and Wisconsin constitutions. The legislature finds that this section protects the right to a remedy found in article I, section 9, of the Wisconsin Constitution, by preserving the narrow and limited application of the risk contribution theory of liability announced in Collins.