In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1639
IN RE:
S HERWIN-W ILLIAMS C OMPANY,
Petitioner.
Petition for Writ of Mandamus from the
United States District Court for the
Eastern District of Wisconsin.
Nos. 07-C-0441, 07-C-0303, 07-C-0865 & 10-C-0075—
Lynn Adelman, Judge.
S UBMITTED M ARCH 17, 2010—D ECIDED JUNE 7, 2010
Before K ANNE, R OVNER, and T INDER, Circuit Judges.
P ER C URIAM. In this petition for a writ of mandamus,
Sherwin-Williams Company asks us to order District
Judge Lynn Adelman to recuse himself from pre-
siding over four cases in which it is a defendant. Sherwin-
Williams argues that a law review article co-written by
Judge Adelman creates an appearance that the judge will
decide the case other than on the merits. Judge Adelman
denied Sherwin-Williams’s motion for recusal in the
district court, and we do the same for the petition for
writ of mandamus.
2 No. 10-1639
The basis of Sherwin-Williams’s petition is a 2007 article
Judge Adelman co-authored in response to criticism of
five decisions issued by the Wisconsin Supreme Court in
2005. One of the opinions discussed was Thomas ex rel.
Gramling v. Mallett, 701 N.W.2d 523 (Wis. 2005), in which
the Wisconsin Supreme Court held that a plaintiff who
could prove that he was injured by ingesting white
lead carbonate pigments in his home but could not
identify the manufacturer of the pigments could none-
theless recover in a suit against pigment manufacturers.
Judge Adelman is now presiding under diversity juris-
diction over four cases against manufacturers of white
lead carbonate pigments. In each case the plaintiffs seek
recovery based on Thomas. Sherwin-Williams is one of the
defendants in those cases, and the company asked
Judge Adelman to recuse himself from the cases under
28 U.S.C. § 455(a) on the ground that a reasonable person
would believe, based on Judge Adelman’s article, that the
judge is unable to decide the case impartially. Judge
Adelman denied the motion, and Sherwin-Williams
renews its arguments in its mandamus petition.
Under traditional theories of negligence and strict
products liability, the plaintiff in Thomas could not recover
against the pigment manufacturers because he could not
establish which company caused his injuries. Article I,
Section 9, of the Wisconsin Constitution promises, how-
ever, that “[e]very person is entitled to a certain remedy
in the laws for all injuries, or wrongs,” and the Wisconsin
Supreme Court has concluded from this provision that,
“ ‘[w]hen an adequate remedy or forum does not exist
to resolve disputes or provide due process, the courts,
No. 10-1639 3
under the Wisconsin Constitution, can fashion an ade-
quate remedy.’ ” Collins v. Eli Lilly Co., 342 N.W.2d 37, 45
(Wis. 1984) (quoting D.H. v. State, 251 N.W.2d 196, 201
(Wis. 1977)). Previously, the Wisconsin Supreme Court
crafted such a remedy for a plaintiff who complained of
birth defects allegedly resulting from exposure to the
drug diethylstilbestrol. Collins, 342 N.W.2d at 49. All
diethylstilbestrol products shared the same chemical
formula, and they were often produced in a generic
form. Id. at 44. Prescriptions were frequently filled with-
out regard to manufacturer or brand. Id. Thus, the
plaintiff was unable to establish which company that
manufactured or marketed the drug harmed her, and
she was left without any recourse. Id. at 44-45. The court
in Collins held that if the plaintiff could establish
that her birth defects resulted from exposure to diethylstil-
bestrol and that the defendants’ conduct in producing
or marketing it constituted a breach of duty, she could
recover against any company that manufactured or
marketed the type of diethylstilbestrol to which she
was exposed—that is, against any company that contrib-
uted to her risk of injury. Id. at 49-50.
The court in Thomas ruled that the same approach
was justified for cases involving white lead carbonate
pigments. 701 N.W.2d at 558. The court reasoned that the
risk-contribution theory could apply even though such
pigments, unlike diethylstilbestrol, did not share an
identical chemical formula; it was enough that the pig-
ments were functionally interchangeable, physically
indistinguishable, and created equivalent risks of lead
poisoning. Id. at 559-62. Another difference from Collins
4 No. 10-1639
was that the plaintiff in Thomas was not entirely without
a remedy for his injuries. He also sued his former land-
lords for their negligent maintenance of the house in
which he was exposed to lead, and he recovered against
their insurers. Id. at 552. Yet, explained the court, the
Wisconsin Constitution promises not just a remedy for
every injury, but also a remedy for every wrong, and
the pigment manufacturers and landlords were charged
with different wrongs: the manufacturers, with making
poisonous products; the landlords, with negligently
maintaining real estate. Id. at 554. A remedy to match
the manufacturers’ wrong was still wanting, and so it
was appropriate to fashion one. Id. at 551-52.
The decision in Thomas was much maligned, and so
were four other 2005 decisions of the court. In response to
this criticism, Judge Adelman co-authored an article
praising the Wisconsin Supreme Court’s use of its judicial
power. Lynn Adelman & Shelley Fite, Exercising Judicial
Power: A Response to the Wisconsin Supreme Court’s Critics,
91 Marq. L. Rev. 425 (2007). Judge Adelman’s article
reviewed the five cases and defended the rulings as
appropriate exercises of the high court’s judicial power,
given the unique role the state constitution assigns the
court in overseeing the administration of justice. Id. He
explicitly disclaimed any opinion on the merits of any
of the cases. Id. at 428. Judge Adelman did comment that,
to the extent the facts in Thomas suggested that the plain-
tiff could otherwise have no recovery from a pigment
manufacturer, he thought it was a “positive development”
for the court to ensure that “the doors of the court-
house remained open.” Id. at 446.
No. 10-1639 5
Mandamus is the appropriate vehicle for a challenge to
a district judge’s denial of a motion for recusal based
on appearance of bias. United States v. Diekemper, ___
F.3d ___, 2010 WL 1688524, at *4 (7th Cir. 2010); In re
United States, 572 F.3d 301, 307-08 (7th Cir. 2009). Our
review is de novo. In re United States, 572 F.3d at 307;
Hook v. McDade, 89 F.3d 350, 353-54 (7th Cir. 1996); United
States v. Balistrieri, 779 F.2d 1191, 1203 (7th Cir. 1985).
Section 455(a) provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality
might reasonably be questioned.” In evaluating whether
a judge’s impartiality might reasonably be questioned, our
inquiry is “from the perspective of a reasonable observer
who is informed of all the surrounding facts and circum-
stances.” Cheney v. United States Dist. Court, 541 U.S. 913,
924 (2004) (Scalia, J., in chambers) (citation omitted); See
also Sao Paolo State of the Federative Republic of Brazil v. Am.
Tobacco Co., 535 U.S. 229, 232-33 (2002); United States v.
Holland, 519 F.3d 909, 913 (9th Cir. 2008); In re Basciano, 542
F.3d 950, 956 (2d Cir. 2008), cert denied, 129 S. Ct. 1401 (U.S.
Feb. 23, 2009); In re McCarthey, 368 F.3d 1266, 1269 (10th
Cir. 2004); United States v. Cherry, 330 F.3d 658, 665 (4th
Cir. 2003). That an unreasonable person, focusing on only
one aspect of the story, might perceive a risk of bias is
irrelevant. United States v. Bonds, 18 F.3d 1327, 1331 (6th
Cir. 1994). Consequently, where a judge’s comments,
writings, or rulings are the basis for a recusal request, our
analysis assumes that a reasonable person is familiar
with the documents at issue, as well as the context in
6 No. 10-1639
which they came into being. See White v. NFL, 585 F.3d
1129, 1139-40 (8th Cir. 2009).
In addition to being well-informed about the sur-
rounding facts and circumstances, for purposes of our
analysis, a reasonable person is a “thoughtful observer
rather than . . . a hypersensitive or unduly suspicious
person.” In re Mason, 916 F.2d 384, 386 (7th Cir. 1990),
quoted in O’Regan v. Arbitration Forums, Inc., 246 F.3d 975,
988 (7th Cir. 2001), and Hook, 89 F.3d at 354; accord
Holland, 519 F.3d at 913. Finally, a reasonable person is
able to appreciate the significance of the facts in light of
relevant legal standards and judicial practice and can
discern whether any appearance of impropriety is
merely an illusion. See Cheney, 541 U.S. at 924; See also
In re Mason, 916 F.2d at 387 (concluding no appearance
of bias created by fact that district judge had, before
appointment to bench, made political contribution to
party in case before him; judges with political ties
regularly cast those interests aside and resolve cases on
facts and law).
Sherwin-Williams contends that a reasonable observer
could conclude from Judge Adelman’s article that he
believes that Thomas was correctly decided and that he
therefore will not consider Sherwin-Williams’s attacks
on Thomas fairly. As suggested in our earlier characteriza-
tion of the article, we do not think that a reasonable
person, having actually read the article, would think
that Judge Adelman had expressed any view as to the
merits in Thomas in arguing that it and the other deci-
sions fell within the Wisconsin high court’s authority. But
No. 10-1639 7
the bigger failing in this contention is that, as Judge
Adelman noted in denying the motion for recusal, his
views of Thomas, to the extent he has any, are irrelevant.
Because these are diversity cases, Judge Adelman is
obligated to follow state law, as interpreted by the
state supreme court. State Farm Mut. Auto. Ins. Co. v. Pate,
275 F.3d 666, 669 (7th Cir. 2001) (citing Erie R.R. v.
Tompkins, 304 U.S. 64, 80 (1938)). He cannot revisit the
holding in Thomas, not even if he were persuaded that
Sherwin-Williams’s objections are meritorious. See
Rennert v. Great Dane Ltd. P’ship, 543 F.3d 914, 917 (7th
Cir. 2008). A reasonable person would understand this
and would appreciate that Judge Adelman’s impartiality
in these cases is in no way called into question by any-
thing he may have said about the merits of Thomas.
Sherwin-Williams also argues that the mere fact that
Judge Adelman published an article that defends, in some
fashion, a ruling that was favorable to certain lead-
paint plaintiffs would make a reasonable person
suspect that Judge Adelman has an unusual interest in
assisting such plaintiffs—i.e., that he has an ax to grind.
But someone who was aware of the controversy
regarding the limits of the Wisconsin Supreme Court’s
power and knew that federal judges may speak, write,
and participate in other activities concerning the legal
issues of the day, see Code of Conduct for United States
Judges, Canon 4A(1), would find nothing unseemly about
Judge Adelman publishing a law review article on the
topic. Sherwin-Williams suggests that this scenario is
analogous to cases in which recusal has been ordered
because of a district judge’s comments to the media or
8 No. 10-1639
at conferences, but in each of those decisions
the commented-upon-case was pending before the dis-
trict judge. E.g., United States v. Microsoft Corp., 253 F.3d
34, 107-15 (D.C. Cir. 2001); In re Boston’s Children First,
244 F.3d 164 (1st Cir. 2001); Hathcock v. Navistar Int’l
Trans. Corp., 53 F.3d 36, 41 (4th Cir. 1995); United States
v. Cooley, 1 F.3d 985 (10th Cir. 1993). Canon 3(A)(6) gener-
ally discourages public comments about the merits of
pending cases, and such comments may understandably
raise questions about a judge’s impartiality in the case
over which he or she is presiding. But those concerns
are not implicated here because Thomas is not before
Judge Adelman and never has been.
Sherwin-Williams has not established that Judge
Adelman’s article would make a reasonable, thoughtful,
and well-informed observer question his impartiality.
Accordingly, the petition for writ of mandamus is D ENIED.
6-7-10