Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.

I don’t know how broad Judge Randa’s holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don’t know that.

A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa’s decision (I’ll do that later), let’s assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here’s where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not “ripe” because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa’s decision is affirmed by the Seventh Circuit (also a “lower” federal court) all federal judges in the Wisconsin will follow Judge Randa.

Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court – if not reviewed by SCOTUS – would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog