Our Boston personal injury attorneys know significant investigation may be required before filing a lawsuit related to injuries sustained to lead exposure. It is important to find out as much as possible about what type of lead carbonate pigment paint contributed to the plaintiff’s illness, when the paint was applied, and who manufactured that type of paint.
Gibson v. Am. Cyanamid Co., a case from the U.S. Court of Appeals for the Seventh Circuit, involved a plaintiff who said he was injured as a result of eating lead paint as child in the late 1990s. Lead was added to paint to speed drying time, increase durability, and improve the overall look of the paint. If the paint is ingested, it can lead to kidney problems, liver disease, developmental disorders, and other health concerns. The fact that lead paint has a distinctly sweet taste is the reason that children often ate it after it flaked off a wall.
According to court records, the plaintiff and his family moved to a house that was alleged to contain lead carbonate pigment. The plaintiff was unable to determine what brand of white lead carbonate paint was used in his home, so the suit was brought against a variety of companies that were responsible for the production and distribution of the paint during the 1970s, when the paint was thought to be applied.
The plaintiff used what is referred to as the risk contribution rule. This rule allows the companies that created or contributed to the risk to be named as defendants in cases where it is impossible to determine which company was actually responsible for the harm caused to the plaintiff. This is similar to asbestos cases, where it is impossible to distinguish one company’s asbestos from the other. The court will simply look to what percentage of the market share each company had at a given time and assign liability accordingly.
While the trial court in Gibson agreed with the plaintiff, the court of appeals ultimately reversed this ruling on grounds that it violated the defendant’s due process rights. The issue was that the plaintiff could not determine with certainty when the paint was applied. The defendants asserted that the lead-based paint could have been applied anytime between 1905 and 1980.
Another issue was that the plaintiff could not determine which type of lead carbonate paint caused his injuries. There were three different formulations of white paint containing lead carbonate pigment that were manufactured and sold to the market in which his family lived.
Due to this inability to show that one particular manufacturer had actually contributed in any way to the risk of harm to the plaintiff, the appellate court affirmed the trial court’s ruling.
The court noted that the plaintiff is not, however, without a remedy. The plaintiff still has a case against his landlords for his exposure to the lead-based paint in the late 1990s. The law requires that specific disclosures be made to people leasing a house or apartment that may contain lead paint.
If you are the victim of injury resulting from exposure to lead, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment: 1-888-367-2900.
Gibson v. Am. Cyanamid Co., July 24, 2014, U.S. Court of Appeals for the Seventh Circuit
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