No ruling in Justice Louis Butler's tenure on the Wisconsin Supreme Court has generated more debate than one he wrote in 2005 on lead paint.
Butler ruled that a boy who ingested lead-based paint chips at two Milwaukee homes could sue several companies even though he could not prove which one made the product that left him with mental disabilities.
Companies were aware of the dangers of a lead pigment used in paint as far back as 1904 but continued marketing their products through the 1970s, he wrote for a 4-2 majority.
As a result, the entire industry can be sued for their role in polluting millions of U.S. homes with toxic paint. Otherwise, children such as Steven Thomas, now 17, would have no way to seek remedies against the makers of the decades-old paint that gave them lifelong health problems, Butler reasoned.
The ruling, the first of its kind against the industry nationwide, set off a debate that continues to reverberate as Butler seeks a 10-year seat on the high court. He refers tothe case on the campaign trail as he touts his record of holding big businesses accountable for wrongdoing.
But his opponent in the April 1 election, Judge Michael Gableman, calls the case an example of Butler's judicial activism. Angry over that decision and others, Wisconsin Manufacturers and Commerce, the state's business lobby, is expected to spend millions in a bid to oust Butler.
Backlash The backlash started the day of the ruling.
Dissenting Justice Jon Wilcox called the decision "unjustified, unprecedented, and unwise" and warned manufacturers could now be sued when their products aren't at fault for someone's injuries. Justice David Prosser predicted: "Wisconsin will be the mecca for lead paint suits."
WMC said trial lawyers were ready to descend on Wisconsin. "They'll sue cheesemakers, dairy farmers, brewers, sausage makers, auto manufacturers, motorcycle makers - maybe even you," the group said in a 2005 radio ad.
And the Republican-controlled Legislature passed a law essentially nullifying the ruling, which Democratic Gov. Jim Doyle vetoed. (Doyle appointed Butler to the court in 2004.) Nearly three years later, the dire predictions have not come to pass. A jury ruled against Thomas last year. His attorney, Peter Earle, said he is the only lawyer to file a lead paint claim since the ruling.
But WMC spokesman Jim Pugh said the ruling will hurt the state's business climate over time. Lawyers have already raised the theory in cases involving asbestos and gasoline. In the future, they could sue the makers of beer or cheese for selling products that cause health problems, he said.
"It's a very dangerous ruling," Pugh said.
Contribution theory Debate rages over the risk contribution theory, which allows victims to sue manufacturers of similar products even when they cannot pinpoint the one that caused their injuries.
The Wisconsin Supreme Court only previously allowed such lawsuits against the makers of a drug designed to prevent miscarriages that later was linked to a rare cancer in children.
Business lawyers say the extension of the theory to lead paint means it could be applied to other products, ensnaring entire industries in litigation.
In the paint case, it was unclear which products were applied to the homes over a 75-year-span.
Gableman said the court did away with a long-standing requirement that plaintiffs prove who injured them, to create a new social policy that has hurt Wisconsin's business climate. In general, Gableman says he would leave policy matters to lawmakers.
Butler said over-the-top attacks on the ruling by business interests have hurt Wisconsin's economy while the ruling itself has not.
In Butler's view, giving victims the ability to seek remedies is worth the risk that companies not at fault could occasionally be drawn into litigation. Manufacturers are in a better position to absorb those costs than victims because they can insure themselves against liability or raise their prices, he wrote.
"The idea that this young person shouldn't even have a chance to prove how he got sick is a fundamental attack on our centuries-long system of jurisprudence," said his campaign adviser, Sachin Chheda.