On March 2, 2022, a Wisconsin federal judge dismissed Burton v. Am. Cyanamid Co., No. 07-C-0303, 2022 WL 623895 (E.D. Wis. Mar. 2, 2022), a lingering fifteen-year personal injury litigation against lead-based paint manufacturers The Sherwin-Williams Co., E.I. DuPont de Nemours & Co., and Armstrong Containers Inc. In granting the manufacturers’ summary judgment motions, District Judge Lynn Adelman relied upon the procedural issues that arose throughout the lawsuit and the 2021 reversal of a $6 million award in the United States Court of Appeals for the Seventh Circuit.

This decision makes clear the duty-to-warn legal standard for both negligence and strict liability claims are the same under Wisconsin law. The decision also affirms that plaintiffs bringing a motion for reconsideration based on newly discovered evidence are required to show not only that the evidence was newly discovered or unknown to them until after the original proceeding, but also that plaintiffs could not, with reasonable diligence, have discovered and produced such evidence during the original proceeding.

Moving forward, all parties should be aware that related actions will be bound by the Court’s rulings on common questions of fact or law to disallow parties a “second bite at the apple.”


In 2007, Glenn Burton sued eight manufacturers of white lead carbonate (WLC) in the Milwaukee County Circuit Court alleging injuries from lead-based paint poisoning. Defendants removed that case to the U.S. District Court for the Eastern District of Wisconsin under diversity jurisdiction. Around the same time, plaintiffs Ravon Owens, Brionn Stokes, and Ernest Gibson filed negligence and strict liability claims in state court that were also removed for diversity jurisdiction. However, Brionn Stokes’s case was dismissed in 2016. Represented by the same counsel, plaintiffs Burton, Owens, and Gibson began filing Complaints in the Eastern District of Wisconsin in 2010 and 2011.

In 2010, Cesar Sifuentes filed a Complaint in the U.S. District Court for the Eastern District of Wisconsin for negligence and strict liability claims. In 2011, over 160 individuals joined together and filed a single Complaint in Maniya Allen, et al. v. American Cyanamid Co., et al., No. 11-C-1155, indicating that the case was related to the prior cases already pending before District Judge Lynn Adelman. In 2011, Deziree and Detareion Valoe also filed negligence and strict liability claims in the Eastern District of Wisconsin related to the other lead-paint cases. The final case was filed by Dijonae, Ty’Jai, and Jacquan Trammell who were plaintiffs originally part of the Allen action but agreed to sever their claims to cure a jurisdictional issue arising because the three were citizens of the same state as one of the defendants.

Burton’s case was later consolidated with Ravon Owens, Brionn Stokes, Cesar Sifuentes, Maniya Allen, Deziree Valoe, and Dijonae Trammel. All plaintiffs filed suit against WLC manufacturers demanding an unspecified amount pursuant to Wisconsin statutes, including but not limited to compensatory and punitive damages.

In April 2016, Judge Lynn Adelman entered a case management order under which the claims of Burton, Owens, and Sifuentes were to prepare for trial first. These “first-wave” plaintiffs alleged lead-based paint poisoning in their residences. There was a second-wave of cases prepared for trial, but Judge Adelman did not identify those cases involved.


By 2018, the paint manufacturer defendants moved for summary judgment on all claims against them by first-wave plaintiffs. The defendants argued that the legal standard for determining whether they had a duty to warn was the same for both negligence and strict liability claims. Furthermore, the defendants argued under this single standard, WLC manufacturers had no duty to warn about the dangers of lead-based paint because by the time plaintiffs were living in their homes in the 1990s and early 2000s, the public was well aware of those dangers. As a result, the defendants argued this public knowledge gave them reason to believe individuals who consumed its products would be aware of its dangerous condition. However, the defendants were not successful as Judge Adelman separated the duty to warn issue in the negligence context from the duty to warn issue in the strict liability context. Judge Adelman based her ruling on the plaintiffs’ ability to produce evidence “sufficient to raise a question of fact as to whether the hazards of WLC in paint were ‘dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.’” Judge Adelman found that under the strict liability standard, the jury could conclude that between 1910 and 1947, the “public was not fully informed about lead poisoning and the mechanisms of exposure, that [that] therefore the extent of the risks known to manufacturers would not have been contemplated by consumers and users of paint at the time.” In May 2019, the first-wave plaintiffs went to trial and received a $6 million verdict for compensatory damages against Sherwin-Williams, DuPont, and Armstrong. The defendants appealed this award.

On appeal, the Seventh Circuit Appellate Court reversed and remanded the trial court’s decision. See Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791 (7th Cir. 2021). On remand, the panel held the following: (1) Sherwin-Williams was entitled to judgment as a matter of law, (2) DuPont was entitled to a new trial, and (3) Armstrong was entitled to judgment as a matter of law on one claim and a new trial on another. The Seventh Circuit rejected Judge Adelman’s conclusion that the legal standard governing claims for failure to warn under strict liability standards are different from a negligence context. The Seventh Circuit concluded for both strict liability and negligence, the necessity of warnings relies on “what the ultimate consumer knew, rather than what consumers in general knew at the time the manufacturer released the product into the market.” The Appellate Court found Judge Lynn Adelman’s finding that the defendants had a duty to warn under the strict liability claims but not for the negligence claims constituted legal error.

After remand, the defendants filed renewed motions for summary judgment before Judge Adelman in the District Court. DuPont, joined by Armstrong, argued that the failure to warn, negligence, and strict liability claims failed based on the Seventh Circuit’s ruling. DuPont also moved independently for summary judgment “because this Court held that Defendants owed no duty to warn Plaintiffs under a negligence theory, neither DuPont nor any of its codefendants could have owed them any duty to warn under a strict liability claim.” Additionally, the defendants filed a brief requesting the District Court take judicial notice of newspaper articles and other public information related to the known dangers of lead-based paint. The plaintiffs argued “such notice should be limited to only establish the date and source of publications of the submitted documents and not for any other purpose.”

Considering the first-wave plaintiffs’ failure to oppose the defendants’ renewed motions for summary judgment on the claims that were remanded for a new trial, Judge Adelman granted those motions and directed entry of judgment on all remaining claims of the first-wave plaintiffs.


As the first-wave appeal was pending, the parties in the second-wave filed motions for summary judgment. District Judge Lynn Adelman concluded that “given the public knowledge of the dangers of lead paint in the 1990s and early 2000s, the plaintiffs were foreclosed from pursuing negligence claims that relied on a duty-to-warn theory.” After the decision on the second-wave motions, the Seventh Circuit issued its decision on the first-wave case rejecting Judge Adelman’s conclusion that the legal standard governing claims for failure to warn in the strict liability context and negligence context are different. The Seventh Circuit’s decision held that the existence of a duty to warn in both the negligence and strict liability contexts must be determined based on the knowledge of consumers in the 1990s and early 2000s. This decision resulted in the defendants’ entitlement to summary judgment on all second-wave claims.

The plaintiffs requested Judge Adelman’s reconsideration of the prior motion for summary judgment that “manufacturers of white lead carbonate had no duty toward modern consumers about the dangers of lead-based paint because, by the 1990s and early 2000s, those dangers were well known.” The second-wave plaintiffs argued that “the facts supporting Defendants’ duty to warn of the hidden dangers of lead dust justify relief from the Court’s summary judgment ruling.” However, the issue with the plaintiffs’ argument is that they failed to present the facts on which they relied during the original motion for summary judgment. In the original motion, the plaintiffs conceded that consumers in the 1990s and early 2000s were aware of the dangers of lead-based paint and therefore warnings were not required. Accordingly, the plaintiffs failed to point to evidence suggesting that modern consumers might have been unaware of the dangers posed by lead dust. Judge Adelman reasoned although the plaintiffs presented new evidence regarding a modern consumer’s lack of knowledge of the dangers of lead dust, that evidence does not qualify as “newly discovered evidence” for the purposes of a motion for reconsideration.


This decision provides a clear understanding that the same duty-to-warn legal standard applies for both the negligence and strict liability context under Wisconsin law, but also serves as a reminder that a party bringing a motion for reconsideration must show the new evidence could not have been brought in the original proceeding upon reasonable diligence.