Just when you think the Fitzwalkerstan Gang has done about all of the damage it can to the people of Wisconsin, you discover there is still new ground to be broken.
The latest targets: Children who are victims of lead poisoning, and their families.
A new bill introduced last week by State Sens. Glenn Grothman and Scott Fitzgerald, SB-373, would change state law retroactively to eliminate the claims of 173 children who are lead poisoning viictims. No matter than some of those cases have been pending since 2006. They'll all be thrown out if this bill becomes law.
The bill will be fast-tracked to try for quick passage, before the recalls, when the Senate and governorship may change hands.
It's the latest in an ongoing legal and political battle over the lead paint poisoning issue, and one that played a role in business interests throwing their money behind Michael Gableman in his successful campaign to defeat (and defame) Louis Butler for the State Supreme Court.
Butler authored the 4-2 decision in 2005 that said paint companies could be liable collectively for poisoning if it was impossible for a victim to identify which manufacturer made the paint (since the damage might come decades later when a child ingests paint chips). When he stood for election, Wisconsin Manufacturers and Commerce spent nearly $2-million to help Gableman defeat him, but it didn't talk about lead paint poisoning. Instead, it ran a "law and order" campaign while Gableman himself ran a misleading TV spot that many found to be racist, making it appear Butler, as a defense lawyer, had gotten a sex offender freed to commit another crime. That wasn't true, but it worked and Butler lost.
But back to lead poisoning. Lawsuits are proceeding under the ruling Butler and the high court wrote, but manufacturers have appealed to federal courts, and the issue is currently before the 7th Circuit Court of Appeals in Chicago.
There was a hearing on the case on the morning of January 9, and lawyers for the victims felt very good about how the oral arguments had gone, although a written decision might not come for six months.
Apparently, the manufacturers didn't feel very confident about how things had gone, because within two hours Grothman aide Lance Burri asked that the bill be jacketed for introduction in the Senate. Coincidence? Perhaps. Do you believe in miracles? The bill was introduced the next day.
There are some pertinent facts about lead paint manufacturers that seem to have escaped the notice of Grothman and Fitzgerald, and their Assembly co-sponsors, Robin Vos and Dale Kooyenga. The companies continued to produce and sell lead paint even after they knew that it was hazardous and likely to poison children. They share the responsibiity.
On the other hand, we have lead poisoned children in Wisconsin who are completely innocent, but damaged, some of them for life. Does it seem fair to tell them that if they can't prove which company made the paint, long before they were born, that the manufacturers are off the hook? (Yes, other states say that, but that doesn't make it right or fair.) Peter Earle, the Milwaukee lawyer who's handling the victims' cases, offers this comparison:
The theory behind risk contribution is best illustrated by an analogy - consider a body of water which is negligently contaminated by a chemical produced by 5 or 6 factories bordering the water’s edge. Since the chemical is identical and therefore indistinguishable as to manufacturer, a person injured by the chemical would not be able to sue because he/she couldn’t identify who made the chemical that actually injured him/her. Since all manufacturers breached legal duties by their negligence and the negligence of each manufacturer contributed to the contamination, under risk contribution, the injured person can sue all of them and the burden is shifted to them to exculpate themselves if they can.
And here's what the American Academy of Child and Adolescent Psychologyhas to say about lead poisoning:
Exposure to lead can have a wide range of effects on a child's development and behavior. Even when exposed to small amounts of lead levels, children may appear inattentive, hyperactive and irritable. Children with greater lead levels may also have problems with learning and reading, delayed growth and hearing loss. At high levels, lead can cause permanent brain damage and even death.
Whose side are you on?
UPDATE: Already registered to lobby for the bill: Abbott Laboratories, GlaxoSmithKline Inc., NL Industries Inc. and Sherwin Williams Co.