Lawsuit Abuse Fortnightly #5-1

Published January 31, 2006

Special Edition

Wisconsin Mecca for Lawsuit Abuse By Maureen Martin

The following essay was published by the Milwaukee Journal Sentinel on January 2, 2006 and was revised by the author to reflect Gov. Doyle’s veto.

In July 2005, the Wisconsin Supreme Court abolished one of the classic requirements for recovery in lawsuits involving injuries allegedly caused by products. The legislature approved a bill that would fix the damage done by the court, but Democratic Gov. Jim Doyle vetoed it on January 6.

The court’s and governor’s reckless decisions could open the doors to lawsuit abuse, resulting in heavy costs to consumers, workers, and investors in our state.

The court ruling arose from a case called Thomas v. Mallet. The plaintiff, now 15 years old, alleges he ingested lead-based paint and exhibited elevated blood-lead levels in testing done when he was younger than 3. During this time, he lived in rental houses that were built in Milwaukee in 1900 and 1905, when the interior use of paint containing lead carbonate pigment was common. He alleges he will require lifetime medical monitoring for various possible future ailments.

The plaintiff admits he cannot identify the paint product used in the houses in which he lived, nor can he identify whether–or even if–any of the pigments manufactured by the seven manufacturers of lead carbonate pigment he is suing were in the paint applied inside those houses. Nevertheless, he is suing paint pigment manufacturers.

The majority in Thomas v. Mallet found the plaintiff can prevail if he can prove the defendants manufactured and marketed white lead carbonate pigment and that the pigment caused his injury. He will not be required to show that any of the specific pigment manufactured by the seven defendants was present in the paint that caused his injury.

The premise for this liability is that the defendants were participants in the industry that created the risk. One of the dissenting judges observed that none of the defendants manufactured lead pigment when the plaintiff’s houses were built, and almost all of the defendants had ceased manufacturing it by 1950. Second, he observed, the plaintiff cannot prove his elevated blood-lead levels came from lead-based paint. They could come from several possible sources of lead, including water and outdoor air.

Thus, this judge noted, “The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

The Thomas ruling puts at risk every manufacturer in Wisconsin and indeed every manufacturer anywhere. Because liability costs for manufacturers are passed along in the form of higher prices for goods, every consumer has a stake in the outcome of this debate.

The decision came in the wake of another ruling that struck down the state’s medical malpractice award caps and the governor’s veto in November of legislation to restore those caps. Now the state is becoming a mecca for lead-based paint plaintiffs, as well-known plaintiffs’ firms have already filed more cases.

Both houses of the legislature approved a bill, called Senate Bill 402, that would have fixed the damage caused by the Thomas v. Mallet ruling.

Under the bill, a plaintiff unable to prove that a specific product manufactured by a specific defendant caused his injury could nevertheless recover if he proved he has no other source of compensatory damages and that his injury was caused by a product “chemically identical” to the defendant’s product.

Actions would have been limited to products manufactured during the 25-year period before the injury occurred. The law would have applied to any product, not just lead pigment.

“This veto will negate these legislative efforts and will make Wisconsin the litigation capital of America,” said state Sen. Ted Kanavas, who chairs the committee aimed at economic development in Wisconsin.

Maureen Martin is an attorney and a senior fellow for The Heartland Institute.

Farts on Fire?

A Pennsylvania man who wanted to enjoy a smoke in a porta-potty was injured after the toilet exploded when he flicked his cigarette lighter. He has filed suit in Monongalia County Circuit Court in Morgantown, West Virginia against the owner of the property where the explosion took place and a nearby coal company.

Initial speculation was that the cigarette lighter ignited methane gas from decomposing human waste. One pundit sarcastically blamed the incident on Big Tobacco: “Shocked, just utterly shocked, we are that something hasn’t been done long ago to mandate this ‘known health hazard’ out of existence! Big Tobacco has been caught in a lie once again, this time failing to disclose that using the potty can become dangerously addictive!” said Norman E. Kjono on his Forces International Web site.

The suit alleges the methane gas leaked from a pipe below the toilet, part of a system to extract methane gas from nearby abandoned coal mines, and that the pipe leaked when a contractor ran heavy equipment over it.

The suit further alleges defendants failed to post a warning that smoking was forbidden in the porta-potty. From Associated Press, Morgantown Dominion Post,, and

Marry Me, Oprah

A New Mexico woman obtained a temporary restraining order against talk show host David Letterman on the grounds he used code words, gestures, and eye expressions “to convey his desire to marry her and train her as his co-host.”

She further alleges Regis Philbin, Kathie Lee Gifford, and Kelsey Grammer either supported her “relationship” with Letterman or attempted to break it up. She alleges Letterman forced her into bankruptcy, engaged in mental cruelty, and caused her to suffer sleep deprivation. She alleges she sent Letterman “thoughts of love” to which Letterman responded.

“Dave responded to my thoughts of love, and, on his show, in code words & obvious indications through jestures [sic] and eye expressions, he asked me to come east,” she wrote to the court. In 1993, she alleges, Letterman proposed marriage to her when he said, “Marry me Oprah.” She wrote to the court that “Oprah had become my first of many code names.”

The restraining order was later lifted. From USA Today,

Lawsuit Abuse Fortnightly

Published by The Heartland Institute (312/377-4000), a nonprofit 501(c)3 organization founded in 1984.
Phone 312/377-4000, fax 312/377-5000
Back issues are available online at
Publisher: Joseph L. Bast
Editors: Maureen Martin, Diane Carol Bast

Information on lawsuit abuse can be found on these Web sites:

The Heartland Institute
19 South La Salle Street #903
Chicago, Illinois 60603