Ohio Supreme Court Rejects Lead Paint Lawsuit Appeal

Maria J. Armstrong
Bricker & Eckler LLP
June 2007

Full text of the 8th District Court of Appeals decision

On June 20, 2007, the Ohio Supreme Court declined to accept Plaintiffs' appeal from an Eighth District Court of Appeals' decision dismissing a suit brought against several paint companies. Jackson v. The Glidden Company, 2007-Ohio-277, 2007 Ohio LEXIS 1499. The Plaintiffs filed suit individually and on behalf of their children against six paint manufacturers, alleging that the children were poisoned as a result of ingesting deteriorated lead-based paint in their residences.

The Plaintiffs could not establish which paint company manufactured the paints allegedly in their homes. Instead, the Plaintiffs argued that each Defendant paint company should be liable for the Plaintiffs' injuries based upon their relative share of the paint market. In 1998, the Ohio Supreme Court rejected the market share liability theory of recovery in product liability actions in Sutowski v. Eli Lilly & Company, 82 Ohio St.3d 347, 1998-Ohio-388. Plaintiffs urged the trial court to reverse Sutowski, but both the Court of Common Pleas and the Eighth District Court of Appeals ruled against the Plaintiffs, stating that they were bound to apply Sutowski.

Plaintiffs also raised the theory of "alternative liability". Under the theory of alternative liability, the burden shifts from plaintiffs to defendants to prove that they were not the cause of the plaintiffs' injuries. Although "alternative liability" has been applied in Ohio, its application has been limited. For this theory to apply, a plaintiff must satisfy the threshold burden of proving that all of the defendants acted tortiously and at least one of them caused harm to the plaintiff. The trial court and the appellate court rejected the alternative liability argument because the Plaintiffs failed to meet their threshold burden. According to the Eighth District Court of Appeals, Plaintiffs' failure "precludes the applicability of the alternative liability theory." Jackson v. The Glidden Company, 2007-Ohio-277, 2007 Ohio App. LEXIS 268 at ¶ 28.

By refusing to hear the appeal on this case, the Ohio Supreme Court effectively ended this matter and let stand the ruling of the Eighth District Court of Appeals.