Ravon Owens v. Sherwin Williams Company

In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 20-1774, 20-1776, 20-1777, 20-1780, 20-1781, 20-1782, 20- 1783, 20-1784 & 20-1785 GLENN BURTON, JR., RAVON OWENS, AND CESAR SIFUENTES Plaintiﬀs-Appellees, v. E.I. DU PONT DE NEMOURS AND COMPANY, INC., THE SHERWIN- WILLIAMS COMPANY, AND ARMSTRONG CONTAINERS, INC. Defendants-Appellants. ____________________ Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 07-CV-0303, 07-CV-0441, 10-CV-0075 — Lynn Adelman, Judge. ____________________ ARGUED DECEMBER 9, 2020 — DECIDED APRIL 15, 2021 ____________________ Before WOOD, SCUDDER, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. These sprawling toxic-tort cases take us into the weeds of Wisconsin products liability law. The product at issue is white lead carbonate—a dry white powder historically used as the “pigment” in many lead-based paints. Paint has two essential components: the pigment, which hides 2 Nos. 20-1774 et al. and protects the painted surface, and the liquid “vehicle,” which allows the pigment to be spread across the surface. Over time a consensus developed that lead-based paints were toxic and posed especially great dangers to young children, who were prone to chewing paint ﬂakes or putting scattered lead dust into their mouths during critical stages of brain de- velopment. These dangers led the federal government to ban lead-based paint for residential use in 1978. Wisconsin fol- lowed suit two years later. Even after these bans, however, lead-based paint remained on the walls of many homes throughout the United States. The plaintiﬀs in these consolidated cases are three young men who grew up in Milwaukee homes that had lead-based paint on the walls. They were diagnosed with lead poisoning as young children in the 1990s or early 2000s. Years later, they ﬁled these lawsuits against several manufacturers of white lead carbonate, seeking compensation for brain damage and other injuries resulting from their ingestion of lead paint par- ticles. The plaintiﬀs identiﬁed the paint pigment in their childhood homes as white lead carbonate, but they could not identify the speciﬁc company responsible for manufacturing the white lead carbonate that they ingested. To overcome this failure of proof, they relied on Thomas ex rel. Gramling v. Mal- lett, 701 N.W.2d 523 (Wis. 2005), in which the Wisconsin Su- preme Court adopted a “risk-contribution” theory of liability for plaintiﬀs suing manufacturers of white lead carbonate. The risk-contribution theory modiﬁes the ordinary rule in tort law that a plaintiﬀ must prove that a speciﬁc defendant’s con- duct caused his injury. It instead seeks to apportion liability among the “pool of defendants” who could have caused the injury. Nos. 20-1774 et al. 3 After years of pretrial litigation, the plaintiﬀs went to trial against ﬁve manufacturers of white lead carbonate. The jury found three of the manufacturers liable and awarded the plaintiﬀs $2 million each. The three defendants found liable (E.I. du Pont de Nemours and Company, Inc., the Sherwin- Williams Company, and Armstrong Containers, Inc.) now ap- peal. They challenge a long list of the district court’s pretrial, trial, and post-trial rulings. We see no error in many of these rulings, and we commend the district court for its thoughtful attention and diligent eﬀort throughout this complex case. Nonetheless, we hold that the court committed three signiﬁ- cant legal errors about the scope of Wisconsin products liabil- ity law. These errors shaped the trial and impermissibly ex- panded the defendants’ potential liability. Along with a sepa- rate error in the admission of certain expert testimony, they compel us to reverse the judgments and remand for further proceedings. I. Background Wisconsin’s risk-contribution theory is at the heart of this appeal. 1 In this section we trace the development of the risk- contribution theory to provide context for the plaintiﬀs’ law- suits. We then describe the facts and procedural history giv- ing rise to this appeal. A. Legal Background 1. Collins The risk-contribution theory has its origins in Collins v. Eli Lilly Co., 342 N.W.2d 37 (Wis. 1984). In that case, Therese 1 The parties agree that Wisconsin law governs these diversity cases. 4 Nos. 20-1774 et al. Collins’s mother took diethylstilbestrol (DES) while pregnant with Collins in 1957–58. DES was a miscarriage-prevention drug that was on the market from 1947 to 1971. In 1971, med- ical research established a possible statistical link between DES and the later development of vaginal cancer in children exposed to DES in utero. After developing vaginal cancer in 1977, Collins sued various drug companies that had produced or marketed DES while her mother was pregnant. Under traditional tort law, Collins faced an “insurmount- able obstacle”: she could not identify which drug company had produced or marketed the DES that her mother had taken. Id. at 45. She could not do so because DES was a “fun- gible drug produced with a chemically identical formula.” Id. at 44. Moreover, hundreds of diﬀerent companies had pro- duced or marketed DES. And, owing to the passage of time, records and evidence pertaining to drug companies’ produc- tion or marketing of DES and Collins’s mother’s prescription were largely unavailable. The Wisconsin Supreme Court was “faced with a choice of either fashioning a method of recovery for the DES case which will deviate from traditional notions of tort law, or permitting possibly negligent defendants to escape liability to an inno- cent, injured plaintiﬀ.” Id. at 45. While acknowledging that “DES cases pose diﬃcult problems,” the court concluded that, “as between the plaintiﬀ, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury.” Id. at 49. Relying on its authority under the Wisconsin Consti- tution to fashion an adequate remedy, see Wis. Const. art. I, § 9, the court proceeded to adopt a risk-contribution theory of Nos. 20-1774 et al. 5 recovery for DES plaintiﬀs, adding that “this method of re- covery could apply in situations which are factually similar to the DES cases.” Collins, 342 N.W.2d at 49. The rationale for the risk-contribution theory was that the defendant drug compa- nies had, at the very least, “contributed to the risk of injury to the public” by producing or marketing a drug that turned out to have harmful side eﬀects. Id. Moreover, the “possibly re- sponsible” drug companies were in a better position than the “innocent plaintiﬀ” to absorb the cost of, and protect against, injuries from DES. Id. at 49–50. As for how the risk-contribution theory would apply: a plaintiﬀ would need to sue at least one defendant and prove “that the plaintiﬀ’s mother took DES; that DES caused the plaintiﬀ’s subsequent injuries; that the defendant produced or marketed the type of DES taken by the plaintiﬀ’s mother; and that the defendant’s conduct in producing or marketing the DES constituted a breach of a legally recognized duty to the plaintiﬀ.” Id. at 50. While a plaintiﬀ only had to sue one de- fendant, there were incentives to sue as many as possible, and named defendants were free to implead other drug compa- nies as third-party defendants. The court made clear that the risk-contribution theory was available for both negligence and strict liability claims. A plaintiﬀ proceeding on either theory would have to prove the traditional elements of the claim, with one exception. Instead of proving that a defendant drug company caused the plain- tiﬀ’s injuries, the plaintiﬀ would only have to prove that the defendant “produced or marketed the type of DES taken by the plaintiﬀ’s mother.” Id. at 51. If a plaintiﬀ succeeded in making this prima facie show- ing, the burden would shift to the defendant to prove “that it 6 Nos. 20-1774 et al. did not produce or market the subject DES either during the time period the plaintiﬀ was exposed to DES or in the relevant geographical market area in which the plaintiﬀ’s mother ac- quired the DES.” Id. at 52. To prevail on these defenses, a de- fendant would have to prove that “the DES it produced or marketed could not have reached the plaintiﬀ’s mother.” Id. The goal of this burden-shifting procedure was to create “a pool of defendants which it can reasonably be assumed could have caused the plaintiﬀ’s injuries.” Id. at 52. The court acknowledged that the risk-contribution theory could result in liability for innocent defendants, but it accepted this possi- bility as “the price the defendants, and perhaps ultimately so- ciety, must pay to provide the plaintiﬀ an adequate remedy under the law.” Id. Finally, the court added that the doctrine of comparative negligence would permit the jury to equitably “apportion lia- bility among the defendants that have been unable to excul- pate themselves.” Id. at 53. In allocating liability, the jury could consider various factors, including: whether a defend- ant tested DES for safety and eﬃcacy or took steps to protect or warn the public; the defendant’s role in securing govern- ment approval of DES; the defendant’s market share in the relevant area; and whether the defendant produced or mar- keted DES even after it knew the relevant risks. Id. at 54. 2. Thomas In Thomas, the Wisconsin Supreme Court considered whether to extend Collins’s risk-contribution theory to white lead carbonate pigment. 701 N.W.2d at 523. Steven Thomas suﬀered lead poisoning as a young child after he ingested lead paint particles in two of his childhood homes. Years later, Nos. 20-1774 et al. 7 Thomas sued his former landlords and several manufacturers of white lead carbonate seeking compensation for his injuries, which included brain damage and a heightened risk of future medical complications. From a legal standpoint, Thomas was in the same boat as Collins: he could not identify which company had manufac- tured the white lead carbonate that he had ingested as a child, given the “generic nature” of white lead carbonate, the large number of producers, and the lack of available records and evidence. Id. at 532. As such, he sought to hold the pigment manufacturers liable under Collins’s risk-contribution theory. The lower courts rejected Thomas’s proposed extension of Collins because Thomas was not without a remedy—he could, and did, recover from his landlords. The Wisconsin Supreme Court reversed, holding that Thomas’s case was similar enough to Collins’s case to warrant application of the risk-contribution theory. Id. at 557. As in Collins, the pigment manufacturers contributed to the risk of injury to the public by producing or marketing a harmful product. They were also better positioned to absorb the costs of the injuries. And, like Collins, Thomas could not identify “the precise manufacturer of the white lead carbonate that caused his injuries.” Id. at 559. On this point, the court rejected the manufacturers’ argument that white lead carbonate— which came in three diﬀerent chemical formulas—was not fungible. It held that chemical identity was not necessary for fungibility. The court reasoned that a product could be “fun- gible” in three diﬀerent senses: (1) functionally interchangea- ble; (2) physically indistinguishable; or (3) uniform in risk level. Id. at 560–61. The court concluded that, when viewing 8 Nos. 20-1774 et al. the factual record in the light most favorable to Thomas, white lead carbonate was fungible in all three senses. The court proceeded to reject the manufacturers’ other ar- guments as to why Collins should not apply. First, the “dras- tically larger” window of liability—potentially several dec- ades or more, depending on when a house was built—was not a reason to let the pigment manufacturers oﬀ the hook. “[T]he Pigment Manufacturers’ argument must be put into perspec- tive: they are essentially arguing that their negligent conduct should be excused because they got away with it for too long.” Id. at 562. Next, the court rejected the argument that Collins should not apply because lead poisoning had multiple poten- tial causes and did not produce a “signature injury.” While it agreed with the argument’s premises, the court reasoned that these were issues for the jury. Id. at 563. Finally, the court re- jected the argument that Collins should not apply because the pigment manufacturers were not in exclusive control of the risk that their product created: [A]s doctors were the ones who prescribed the dosage of DES, so too were the paint manufacturers that mixed the amount of white lead carbonate in the paint. How- ever, the paint did not alter the toxicity of the white lead carbonate anymore than the pharmacist did by ﬁlling a prescription. To the contrary, at best, the paint manufacturers actually diluted the white lead car- bonate’s toxicity. In other words, the inherent danger- ousness of the white lead carbonate pigment existed the moment the Pigment Manufacturers created it. Id. Nos. 20-1774 et al. 9 The Wisconsin Supreme Court then set forth the elements of both negligence and strict liability claims for white lead car- bonate plaintiﬀs. As in Collins, Thomas’s burden was relaxed “only with respect to establishing the speciﬁc type of DES the plaintiﬀ’s mother took, which, in this case, translates into the speciﬁc type of white lead carbonate Thomas ingested.” Id. Thomas only had to “prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses’ exist- ence.” Id. at 564. If Thomas could make out a prima facie case, the burden would shift to the defendant to prove “that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located.” Id. Unlike in Collins, moreover, the pigment manufacturers might have additional defenses, “including that lead poisoning could stem from any number of sub- stances (since lead itself is ubiquitous) and that it is diﬃcult to know whether Thomas’s injuries stem from lead poisoning as they are not signature injuries.” Id. at 564–65. Two Justices dissented, expressing dismay that the pig- ment manufacturers could be “held liable for a product they may or may not have produced, which may or may not have caused the plaintiﬀ’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.” Id. at 567–68 (Wil- cox, J., dissenting); see also id. at 590 (Prosser, J., dissenting) (“[T]his court has now created a remedy for lead paint poi- soning so sweeping and draconian that it will be nearly im- possible for paint companies to defend themselves or, frankly, for plaintiﬀs to lose.”). 10 Nos. 20-1774 et al. 3. Godoy In Thomas, the Wisconsin Supreme Court made clear that it was not reaching the merits of Thomas’s claim, but only de- ciding whether he was eligible to rely on the risk-contribution theory. See id. at 528–29 nn.2 & 4. A few years after Thomas, the court had occasion to consider the merits of a white lead car- bonate claim. See Godoy ex rel. Gramling v. E.I. du Pont de Nemours & Co., 768 N.W.2d 674 (Wis. 2009). Like Thomas, Ru- ben Baez Godoy sustained lead poisoning after he ingested white lead carbonate in his childhood home. Proceeding un- der Thomas, Godoy sued several manufacturers of white lead carbonate, asserting both negligence and strict liability claims. His legal theory was that white lead carbonate was defectively designed. As an initial matter, the court rejected Godoy’s argument that the product in question was actually “residential paint pigment.” Id. at 682. For one thing, Godoy’s complaint fo- cused exclusively on “white lead carbonate.” Id. Plaintiﬀs in products liability cases, the court explained, “must—at mini- mum—identify the product alleged to be defective.” Id. “Do- ing so puts the defendant on notice and allows the defendant to begin building a defense.” Id. More fundamentally, the product at issue could not be residential paint pigment be- cause the risk-contribution theory applied only to “fungible and identically defective” products. Id. In Thomas, that prod- uct was white lead carbonate pigment. The court made clear that it had never applied the risk contribution theory to “res- idential paint pigment,” or to “paint containing white lead carbonate.” Id. at 683 & n.10. On the merits, the court rejected Godoy’s argument that white lead carbonate was defectively designed. The court Nos. 20-1774 et al. 11 explained that Wisconsin courts had “discussed three catego- ries of product defects—manufacturing defects, design de- fects, and defects based on a failure to adequately warn.” Id. at 683. Godoy’s negligence and strict liability claims rested on a design defect, meaning “the design itself is the cause of the unreasonable danger.” Id. at 683–84. Godoy’s theory of design defect was that the presence of lead rendered white lead car- bonate defectively designed. The court disagreed: “A claim for defective design cannot be maintained where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself. Without lead, there can be no white lead carbonate pigment.” Id. at 685. Although Go- doy’s negligence and strict liability claims were “separate av- enues of recovery,” they both failed on this ground. See id. at 681 n.7. 4. Wisconsin Statute § 895.046 & Gibson In 2011, the Wisconsin legislature passed Wis. Stat. § 895.046, which eﬀectively overruled Thomas while preserv- ing Collins. The statute reinstates ordinary causation princi- ples in all products liability cases, while carving out a narrow exception for plaintiﬀs like Collins who have no other remedy and whose injuries stem from a “complete[ly] integrated product” produced in “chemically and physically identical” forms and sold in generic packaging. § 895.046(4). In 2013, the legislature amended § 895.046 to make it retroactive. See § 895.046(2). The statute “assures that businesses may con- duct activities in this state without fear of being sued for in- deﬁnite claims of harm from products which businesses may never have manufactured, distributed, sold, or promoted, or which were made and sold decades ago.” § 895.046(1g). To 12 Nos. 20-1774 et al. that end, the statute also includes certain time limits and join- der requirements. § 895.046 (4)(b), (5). In Gibson v. American Cyanamid Co., 760 F.3d 600 (7th Cir. 2014), we considered whether applying § 895.046 retroac- tively to extinguish already pending white lead carbonate claims would violate the Wisconsin Constitution’s due pro- cess guarantee. Applying the Wisconsin Supreme Court’s two-step framework, we held that it would. Id. at 609. First, Gibson had “a ‘vested right’ in his claims under Thomas’s risk- contribution theory.” Id. Second, § 895.046 lacked a rational basis because the private interest at stake outweighed the public interest that the statute promoted. Id. at 609–10. At both steps of the analysis, we held that Wisconsin Supreme Court precedent “dictate[d]” our conclusions. Id. (citing Matthies v. Positive Safety Mfg. Co., 628 N.W.2d 842, 861 (Wis. 2001) (hold- ing unconstitutional the retroactive application of a statute ex- tinguishing the right to recover on a common law negligence claim under an unmodiﬁed doctrine of joint and several lia- bility); Martin by Scoptur v. Richards, 531 N.W.2d 70, 93 (Wis. 1995) (holding unconstitutional the retroactive application of a statute extinguishing the right to recover an unlimited amount of non-economic damages)). We went on to hold that Thomas did not violate the Federal Constitution. Gibson, 760 F.3d at 627. Following our decision in Gibson, the Wisconsin Supreme Court split 3–3 (with one Justice not participating) on the ﬁrst issue we addressed in Gibson: whether retroactively applying § 895.046 to white lead carbonate claims would violate the Wisconsin Constitution’s due process guarantee. Clark ex rel. Gramling v. Am. Cyanamid Co., 877 N.W.2d 117 (Wis. 2016). Nos. 20-1774 et al. 13 B. Factual and Procedural Background This legal background sets the stage for this case. The net eﬀect of Thomas, § 895.046, and Gibson was a six-year window (2005–2011) in which plaintiﬀs in Wisconsin could rely on the risk-contribution theory to sue white lead carbonate manufac- turers for injuries arising from their ingestion of white lead carbonate as children. Approximately 170 such lawsuits were ﬁled. The three plaintiﬀs here were the ﬁrst to go to trial. The parties selected their cases as “bellwethers” for the other cases, which remain pending before the district court. 1. The Plaintiﬀs’ Claims The sad sequence of events leading to the plaintiﬀs’ claims will by now look familiar. As young children in the 1990s or early 2000s, Glenn Burton, Jr., Ravon Owens, and Cesar Sifuentes lived in Milwaukee homes (built between 1899 and 1922) that had paint containing white lead carbonate. While they were young children, the plaintiﬀs had elevated blood lead levels ranging from 31 (Burton) to 48 (Sifuentes) to 53 (Owens) micrograms per deciliter at their peak. For context, Wisconsin currently deﬁnes lead poisoning as “a level of lead in the blood of 5 or more micrograms per [deciliter] of blood.” Wis. Stat. § 254.11(9). (This number has steadily decreased over time.) Sifuentes and Owens were hospitalized and re- ceived chelation therapy to reduce their blood lead levels. Relying on Wisconsin’s risk-contribution theory, the plaintiﬀs—who could not identify the manufacturer of the white lead carbonate in their childhood homes—sued six white lead carbonate manufacturers for both negligence and strict liability, seeking to hold them liable for brain damage and other injuries resulting from their ingestion of white lead 14 Nos. 20-1774 et al. carbonate as young children. The plaintiﬀs ﬁled their lawsuits separately, but the district court consolidated them for trial. 2. The Defendants’ Production of White Lead Carbonate Only three of the defendants below are parties to this ap- peal: DuPont, Sherwin-Williams, and Armstrong. The plain- tiﬀs sued Armstrong in its capacity as successor-in-interest to the John R. MacGregor Lead Company. The three defendants below who are not parties to this appeal are: American Cyan- amid Company, NL Industries, Inc. (formerly known as the National Lead Company), and the Atlantic Richﬁeld Com- pany. As explained below, the district court dismissed Amer- ican Cyanamid for lack of personal jurisdiction, National Lead settled, and the jury found Atlantic Richﬁeld not liable. DuPont, Sherwin-Williams, and Armstrong each manu- factured white lead carbonate for a period in the twentieth century. DuPont manufactured white lead carbonate at a fac- tory in Philadelphia from 1917 to 1924. It incorporated its white lead carbonate into in its own paint products, which in- cluded ready-mixed paint and white lead-in-oil—a paste commonly sold to “master painters” who combined it with other ingredients to make their own paint. During this period, DuPont sold some of its ready-mixed paint products in Mil- waukee through a wholesaler. After it stopped making white lead carbonate in 1924, DuPont continued making and selling paint products containing white lead carbonate manufac- tured by other companies until 1966. From 1925 to 1946, Na- tional Lead manufactured white lead-in-oil for DuPont. As part of this arrangement, DuPont supplied National Lead with the ingredients and speciﬁcations for manufacturing white lead-in-oil. DuPont then sold the ﬁnished white lead- in-oil under its own brand name. Nos. 20-1774 et al. 15 Sherwin-Williams manufactured white lead carbonate from 1910 to 1947 and used its white lead carbonate as an in- gredient in its own paint products. Sherwin-Williams had a presence in the Milwaukee market during this time. Apart from its own white lead carbonate manufacturing, Sherwin- Williams sold products containing other companies’ white lead carbonate pigment from 1880 to 1969. In 1955, Sherwin- Williams began including warnings about the dangers of in- gesting lead on some of its lead-based paints. MacGregor (Armstrong’s predecessor-in-interest) manu- factured white lead carbonate at a plant in Chicago from 1938 to 1971. MacGregor used its white lead carbonate as an ingre- dient in its “Scotch Laddie” line of paint. Scotch Laddie paint appeared in advertisements and telephone directories in Mil- waukee between 1957 and 1971. MacGregor also sold its white lead carbonate to other paint manufacturers for use in their paint products. 3. Pretrial Rulings The district court made three signiﬁcant pretrial rulings that shaped the trial. First, the court granted summary judg- ment to Sherwin-Williams and Armstrong on the plaintiﬀs’ negligent failure-to-warn claims. The court reasoned that the plaintiﬀs’ caregivers already knew that lead pigment was dangerous and needed no further warning. The court pointed out that Sherwin-Williams and other paint manufacturers started issuing product warnings in 1955—long before the plaintiﬀs were exposed in the 1990s or early 2000s. Meanwhile federal, state, and local governments began warning of the risks of lead-based paint in homes in the 1970s. The plaintiﬀs’ caregivers even testiﬁed at their depositions that they knew, before the plaintiﬀs’ exposure to lead-based paint, that 16 Nos. 20-1774 et al. children should not eat paint chips because of the risk of lead exposure. For these reasons, the defendants had no duty to warn as a matter of law. Still, the court ruled that the plaintiﬀs could pursue negligence claims “based on the general duty of ordinary care.” Second, the court largely denied Sherwin-Williams’s and Armstrong’s motions for summary judgment on the plain- tiﬀs’ strict liability failure-to-warn claims. The court began by distinguishing between duty to warn in the negligence and strict liability contexts, reasoning that negligence requires a duty to warn the plaintiﬀ whereas strict liability requires a duty to warn the “ordinary consumer” who purchased or used white lead carbonate or paint containing white lead car- bonate when the defendants put those products on the mar- ket. The court found a genuine issue of material fact as to whether the defendants had a duty to warn these ordinary consumers. At the same time, the court ruled as a matter of law that the defendants had no duty to warn in their capacity as pigment manufacturers who merely sold pigment to other companies or master painters. The court explained: “It makes little sense for the [white lead carbonate] manufacturer to owe a duty to warn the consumer at the moment that the pigment is delivered to the paint manufacturer, because the [white lead carbonate] manufacturer has no eﬀective means of com- municating that warning.” The court thus granted summary judgment to the defendants on the plaintiﬀs’ strict liability failure-to-warn claims to the extent that the defendants sup- plied white lead carbonate to other companies. Third, less than six weeks before trial, the court denied DuPont’s motion to exclude evidence of its post-1924 con- tracts to purchase white lead-in-oil from National Lead. It also Nos. 20-1774 et al. 17 denied Sherwin-Williams’s motion to exclude evidence of its production or promotion of paint products containing an- other company’s white lead carbonate. The court reasoned that Thomas contemplated liability for producing or “market- ing” white lead carbonate and selling products that contained another company’s white lead carbonate amounted to “mar- keting” white lead carbonate. The defendants moved for re- consideration, arguing that the court’s ruling contradicted Thomas, Godoy, the plaintiﬀs’ longstanding theory of the case, and the court’s prior rulings. In the alternative, they moved to continue trial and reopen discovery so that they could pre- pare a defense according to this broader theory of liability. The court denied these motions, reasoning that Thomas put them on notice that they could be liable for marketing paint products containing another company’s white lead carbonate. The court also made several other relevant pretrial rulings: It granted summary judgment to the plaintiﬀs on the issues of whether white lead carbonate was “fungible” and whether Armstrong was the successor-in-interest to MacGregor. It de- nied summary judgment to Sherwin-Williams and Armstrong on the issue of whether § 895.046 barred the plaintiﬀs’ claims. It denied the defendants’ motion to exclude the testimony of two of the plaintiﬀs’ experts: Dr. Idit Trope and Dr. James Be- sunder. And it denied Sherwin-Williams’s motion to exclude evidence and arguments about its constitutionally protected product advertisements and association with industry groups. National Lead settled before trial. This was a signiﬁcant development because, as the district court explained, “[p]laintiﬀs and defendants alike understand National Lead to have been a leading manufacturer of [white lead carbonate] 18 Nos. 20-1774 et al. pigment with a signiﬁcant presence in the Milwaukee market during the ﬁrst half of the Twentieth Century.” National Lead settled pursuant to a “Pierringer release,” according to which “a tort plaintiﬀ settles with a tortfeasor, reserves its right to pursue claims against other joint tortfeasors, and agrees to in- demnify the settling tortfeasor for any claims for contribution that non-settling tortfeasors might bring against the settling tortfeasor.” Bruner Corp. v. R.A. Bruner Co., 133 F.3d 491, 494 (7th Cir. 1998) (citing Pierringer v. Hoger, 124 N.W.2d 106 (Wis. 1963)). On its own initiative, and over the defendants’ objections, the court bifurcated the trial into two phases: a liability phase and an apportionment phase. Relying on Collins, the court ex- plained that phase one would yield a “pool of defendants” that could have caused the plaintiﬀs’ injuries. Phase one would also determine the plaintiﬀs’ overall damages. Phase two would focus on allocating the damages based on equita- ble factors like market share and the defendants’ respective roles in the industry. See Collins, 342 N.W.2d at 52–53. The court then made the related decision to exclude evidence of National Lead’s market share and role in the Milwaukee mar- ket from phase one, ﬁnding that such evidence would be con- fusing, irrelevant, and prejudicial. As the court explained, “National Lead’s unusual position as a settled defendant whose liability and proportional responsibility remained live issues presented signiﬁcant legal and evidentiary issues.” While National Lead’s large market share in Milwaukee was relevant to the allocation of damages, it was irrelevant to whether other defendants were present in the Milwaukee market. Meanwhile, it would be all too easy for other defend- ants to point the ﬁnger at National Lead during the liability phase in hopes of exculpating themselves entirely. Nos. 20-1774 et al. 19 4. Trial The cases proceeded to trial against the remaining ﬁve de- fendants. The plaintiﬀs went to trial on the two claims that had survived summary judgment: ordinary negligence and strict liability failure-to-warn. To prove their claims, the plain- tiﬀs presented evidence of the dangers of lead-based paint to young children; awareness and recognition of these dangers among the medical and scientiﬁc communities, the paint in- dustry, and the defendants speciﬁcally; the defendants’ con- tinued production, marketing, promotion, and advertisement of white lead carbonate and products containing white lead carbonate; and the plaintiﬀs’ childhood ingestion of white lead carbonate and subsequent injuries. To prove their injuries, the plaintiﬀs relied largely on the expert testimony of Dr. Trope and Dr. Besunder. Dr. Trope, a neuropsychologist, performed neuropsychological evalua- tions on each plaintiﬀ and concluded that each had neuropsy- chological impairments indicating brain damage. She ex- plained that a neuropsychological evaluation gauges brain function by testing various “domains” such as cognitive abil- ity, language functioning, visual motor functioning, memory, attention and concentration, and executive functions like judgment, organization, conceptualization, and information processing. She testiﬁed that abnormally large discrepancies across the plaintiﬀs’ functional domains led her to conclude that each plaintiﬀ had brain damage. On cross-examination, Dr. Trope testiﬁed that the plaintiﬀs’ history of lead poisoning was a substantial contributing factor to their neuropsycholog- ical dysfunction. The plaintiﬀs objected during this cross-ex- amination that they had not oﬀered Dr. Trope to prove causa- tion. 20 Nos. 20-1774 et al. Dr. Besunder, a pediatric critical care physician and toxi- cologist who treats children with lead poisoning, testiﬁed to the fact, source, and extent of each of the plaintiﬀs’ injuries. Dr. Besunder did not personally evaluate any of the plaintiﬀs. Instead, he relied on Dr. Trope’s neuropsychological evalua- tions and general epidemiological studies on the eﬀects of lead poisoning in children. Relying on the neuropsychologi- cal evaluations, Dr. Besunder testiﬁed that each of the plain- tiﬀs had brain damage. Like Dr. Trope, Dr. Besunder based this conclusion on “signiﬁcant deviations” in the plaintiﬀs’ functional domains. Dr. Besunder further testiﬁed that lead poisoning caused plaintiﬀs’ brain damage. He explained that the plaintiﬀs’ functional deﬁcits were consistent with patterns of brain damage in lead-poisoned children documented by the medical and scientiﬁc literature. He testiﬁed that he had reviewed the plaintiﬀs’ medical records to rule out other po- tential causes of their brain damage. Finally, Dr. Besunder attempted to quantify the plaintiﬀs’ brain damage. He testiﬁed that each of the plaintiﬀs had lost at least 10 IQ points due to lead poisoning. He explained that “several studies” had “attempted to quantitate the impact of lead levels up to approximately 20 to 30 micrograms per dec- iliter” and “all those studies have very similar results, that by the time your leads level is approaching the 25 to 30 range that child has lost approximately 10 IQ points.” He testiﬁed that children with blood lead levels above 30 would have lost ad- ditional IQ points, but he stuck with the “conservative esti- mate of 10 IQ points” because “the medical literature will only allow me to give an approximate quantitative estimate for lead levels up to 30.” He explained that the studies he relied on controlled for alternative causes. He conceded, however, Nos. 20-1774 et al. 21 that he had not published his methodology for quantifying IQ loss and that he did not have a baseline IQ for the plaintiﬀs. The defendants’ primary line of defense at trial was “chemical exculpation.” Each of the defendants called experts to testify to diﬀerences in the chemical composition of the paint samples taken from the plaintiﬀs’ childhood homes and the defendants’ residential paint formulas. At the close of evidence, the court dismissed American Cy- anamid for lack of personal jurisdiction. The court submitted the plaintiﬀs’ case against the other four defendants to the jury. The jury found DuPont, Sherwin-Williams, and Arm- strong liable on both claims. It awarded $2 million in damages to each of the plaintiﬀs. The jury found Atlantic Richﬁeld not liable. The trial never reached phase two—where the jury would have apportioned the damages among the defend- ants—because the three defendants found liable chose to set- tle, assigning 12.5% of fault to National Lead and splitting the rest among themselves on a joint and several basis. 5. Post-Trial Rulings The defendants ﬁled various post-trial motions. They each moved for judgment notwithstanding the verdict, arguing that Wisconsin’s judicial public policy factors precluded their liability. See Fandrey ex rel. Connell v. Am. Family Mut. Ins. Co., 680 N.W.2d 345, 350 (Wis. 2004). They also moved for a new trial, challenging the court’s pretrial legal rulings, the suﬃ- ciency of the evidence, and the court’s decision to bifurcate the trial. Sherwin-Williams and Armstrong moved for judg- ment as a matter of law on similar grounds. The court denied the defendants’ post-trial motions, with one exception: it agreed to remit Burton’s damages award 22 Nos. 20-1774 et al. from $2 million to $800,000 because Dr. Besunder admitted during trial that, of the 10 IQ points that Burton lost due to lead poisoning, he lost six of them before he moved to the home that he focused on at trial. The defendants now appeal. II. Discussion The defendants raise a host of challenges on appeal. We focus primarily on three foundational issues concerning the scope of Wisconsin products liability law and the defendants’ corresponding potential for liability. First, all three defend- ants argue that the district court improperly extended Thomas by allowing the jury to ﬁnd them liable in their capacity as paint manufacturers, rather than white lead carbonate manu- facturers. Second, Sherwin-Williams argues that the court er- roneously allowed the jury to ﬁnd it liable on the negligence claims without proof of a product defect. Third, Sherwin-Wil- liams and Armstrong contend that the court erroneously al- lowed the jury to ﬁnd them liable on the strict liability claims in the absence of a duty to warn or any proof that the lack of a warning caused the plaintiﬀs’ injuries. Our review of Wis- consin law convinces us that the defendants are correct on all three counts. We see no merit in the defendants’ remaining challenges, with one exception: we hold that the court abused its discretion in admitting Dr. Besunder’s testimony about the plaintiﬀs’ IQ loss. A. The Risk-Contribution Theory We begin with the defendants’ challenge to the court’s ap- plication of the risk-contribution theory. The defendants ar- gue that the district court improperly extended Thomas by al- lowing the plaintiﬀs to hold them liable in their capacity as Nos. 20-1774 et al. 23 manufacturers of ﬁnished paint products, and not just in their capacity as manufacturers of white lead carbonate. The district court denied the defendants’ motions in limine on this point, ruling that the plaintiﬀs could introduce evidence of the defendants’ production or sale of paint con- taining another company’s white lead carbonate. The court stood by its pretrial ruling when denying the defendants’ mo- tions for a new trial. We review both rulings for abuse of dis- cretion. Turubchuk v. S. Ill. Asphalt Co., Inc., 958 F.3d 541, 548– 49 (7th Cir. 2020). An evidentiary ruling that rests on a legal error is, by deﬁnition, an abuse of discretion. United States v. Chaparro, 956 F.3d 462, 474 (7th Cir. 2020). We will grant a new trial only if “the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party.” Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir. 2010) (quoting Emmel v. Coca- Cola Bottling Co. of Chi., 95 F.3d 627, 636 (7th Cir. 1996)). Evi- dentiary errors warrant a new trial “if the evidentiary errors had ‘a substantial and injurious eﬀect or inﬂuence on the de- termination of a jury and the result is inconsistent with sub- stantial justice.’” Fields v. City of Chi., 981 F.3d 534, 544 (7th Cir. 2020) (quoting Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 440 (7th Cir. 2009)). As set forth above, each of the defendants was both a white lead carbonate manufacturer and a manufacturer of ﬁnished paint products at various points in the twentieth century. They maintain that the risk-contribution theory applies to them only in their capacity as manufacturers of white lead carbonate. We agree; the Wisconsin Supreme Court has ex- pressly limited the risk-contribution theory to manufacturers of white lead carbonate. 24 Nos. 20-1774 et al. 1. Scope of Thomas In Thomas, the court invariably referred to the defendants as “pigment manufacturers.” The court used this term when setting forth the elements of Thomas’s cause of action. Thomas, 701 N.W.2d at 564. At one point, the court even drew a critical distinction between “pigment manufacturers” and “paint manufacturers.” The pigment manufacturers in Thomas had argued that they should not be liable because they “were not in exclusive control of the risk their product created ...” Id. at 563. In other words, the pigment manufacturers attempted to shift the blame to paint manufacturers—the companies that sold lead-based paints directly to consumers. The court re- jected this argument. In doing so it analogized paint manu- facturers to DES prescribers: while paint manufacturers mixed white lead carbonate into paint, they “did not alter the toxicity of the white lead carbonate anymore than the phar- macist did by ﬁlling a prescription.” Id. If anything, “the paint manufacturers actually diluted the white lead carbonate’s tox- icity.” Id. (emphasis added). “[T]he inherent dangerousness of the white lead carbonate pigment existed the moment the Pigment Manufacturers created it.” Id. (emphasis added). We noted the signiﬁcance of this passage in Gibson. In re- jecting the argument that Thomas had discriminated against out-of-state corporations by imposing the risk-contribution theory against out-of-state pigment manufacturers but not in- state paint makers and retailers, we commented: “This argu- ment makes an inferential leap too far, and also ignores Thomas’s discussion of pigment manufacturers’ greater culpa- bility, when compared to paint makers and retailers.” Gibson, 760 F.3d at 627 n.11 (describing Thomas as holding that “if Nos. 20-1774 et al. 25 anything, paint makers and retailers reduced the risk of harm by diluting the lead pigment”). Finally, Godoy conﬁrmed that the risk-contribution theory applies only to white lead carbonate pigment. The lower court had “mistakenly stated” that the product in Thomas was “paint containing white lead carbonate.” Godoy, 768 N.W.2d at 682 n.10. The Wisconsin Supreme Court was clear: “This statement misconstrues our holding in Thomas.” Id. Similarly, the court rejected Godoy’s argument that the risk-contribu- tion theory could apply to “residential paint pigment.” Id. at 683. In short, the Wisconsin Supreme Court has held that the risk-contribution theory applies to white lead carbonate manu- facturers to the extent that they manufacture white lead car- bonate. Applying risk contribution to paint manufacturers or ﬁnished paint products would extend Thomas beyond its bounds. See Thomas, 701 N.W.2d at 570 (Wilcox, J., dissenting) (“It is important to emphasize that the industry defendants are being sued in their capacity as manufacturers of white lead carbonate and not the ﬁnished product, paint.”). Admittedly, distinguishing between pigment manufactur- ers and paint manufacturers—and between pigment and paint—can be confusing because pigment does not reach res- idential consumers unless paint manufacturers sell them a ﬁn- ished paint product. Moreover, many companies, including the defendants here, historically manufactured both pigment and ﬁnished paint products. Still, the Wisconsin Supreme Court has made clear that such companies are liable under the risk-contribution theory only in their capacity as manufactur- ers of white lead carbonate pigment. As a practical matter, this means that a paint manufacturer cannot be liable under the 26 Nos. 20-1774 et al. risk-contribution theory for selling a ﬁnished product that contains another company’s white lead carbonate. Only the manufacturer of the white lead carbonate can be liable. Sherwin-Williams and Armstrong blur the issue by argu- ing that they cannot be held liable as paint manufacturers even if they sold paint containing their own white lead car- bonate. This argument is technically correct but inconsequen- tial. Under Thomas, a company that manufactures white lead carbonate can be liable under the risk-contribution theory if its white lead carbonate could have injured the plaintiﬀ. 701 N.W.2d at 565. It does not matter how the white lead car- bonate reached the plaintiﬀ—whether through the same com- pany’s paint or another company’s paint. See id. at 563 (reject- ing the pigment manufacturers’ argument that they could not be liable because paint manufacturers altered their products before they reached the residential consumers). Either way, risk contribution applies because the company manufactured white lead carbonate that could have injured the plaintiﬀ. To the extent that Sherwin-Williams and Armstrong suggest that a company can avoid liability entirely under the risk-contri- bution theory by fully integrating its products and only sell- ing white lead carbonate as an ingredient in its own paints, that argument is nonsensical and has no basis in Thomas. The district court based its more expansive reading of Thomas on the Wisconsin Supreme Court’s use of the word “marketed.” As the district court saw it, a company that sells lead-based paint is “marketing” lead pigment, even if it is not “producing” it. Thus, the court reasoned, a paint manufac- turer could be liable for selling paint containing another com- pany’s white lead carbonate. We disagree. For one thing, this is a strained interpretation of “marketing” in this context. A Nos. 20-1774 et al. 27 bookseller does not “market” paper, even though paper is a component of books. More fundamentally, Thomas foreclosed this broad conception of “marketing” because it drew a dis- tinction between pigment manufacturers and paint manufac- turers and limited its holding to the former. If selling a ﬁn- ished product qualiﬁed as “marketing” one of the product’s ingredients, a company that had never manufactured pig- ment could be liable under Thomas. Yet Thomas carefully lim- ited its holding to “pigment manufacturers,” and Godoy rein- forced that limitation. Thomas’s reference to “marketing” must be read in context. Thomas speaks of “pigment manufac- turers” that produce or market white lead carbonate. Thomas, 701 N.W.2d at 564. It must be the “pigment manufacturers” doing the producing or marketing—not paint manufacturers or anyone else. For these reasons, we hold that the district court ex- tended—and did not merely apply—the holding of Thomas. We further hold that the court’s extension of Thomas was a le- gal error. The plaintiﬀs do not dispute that the key feature of DES and white lead carbonate—fungibility—does not carry over to paint, so the core rationale of Collins and Thomas is in- applicable to paint and paint manufacturers. See Godoy, 768 N.W.2d at 682–83. Apart from that, Wis. Stat. § 895.046 for- bade the district court’s extension of Thomas. To be sure, Gib- son holds that § 895.046 may not retroactively extinguish the cause of action that Thomas recognized. But the plaintiﬀs’ claims in this case went beyond Thomas. The plaintiﬀs had a vested right to Thomas; they did not have a vested right to ex- tend Thomas. 28 Nos. 20-1774 et al. 2. Prejudice The court’s error requires a new trial because it signiﬁ- cantly expanded the scope of the defendants’ potential liabil- ity and the evidence at trial. It also deprived the defendants of the opportunity to build an appropriate defense. See Godoy, 768 N.W.2d at 682–83. For years, the defendants had litigated under the (valid) assumption that they were liable only in their capacity as pigment manufacturers. Less than six weeks before trial, however, the defendants learned for the ﬁrst time that they were also subject to liability as manufacturers of paint products containing white lead carbonate. The court’s last-minute, legally incorrect ruling left them scrambling to adapt their defenses to the plaintiﬀs’ newly enlarged theory of liability. Consider the prejudice to DuPont. DuPont manufactured white lead carbonate for a narrow seven-year period (1917 to 1924). The court’s erroneous legal ruling enlarged DuPont’s potential window of liability from that seven-year period to a nearly ﬁfty-year period (1917 to 1966) during which DuPont manufactured paint products containing white lead car- bonate. 2 In keeping with the court’s pretrial ruling, the plaintiﬀs introduced evidence of DuPont’s post-1924 knowledge and conduct and asked the jury to ﬁnd DuPont liable for its actions through 1966. They also seized on weaknesses in DuPont’s primary defense that resulted directly from the court’s erro- neous ruling. Through no fault of its own, DuPont was 2 The plaintiﬀs suggest that DuPont manufactured white lead car- bonate until 1946. But the only evidence they cite indicates that National Lead manufactured white lead-in-oil for DuPont during those years. Nos. 20-1774 et al. 29 unprepared to rebut these attacks. The court’s late-stage rul- ing meant that DuPont had to expand its chemical-exculpa- tion defense to cover all the paint formulas that DuPont had used during the additional 42 years (1924 to 1966) that were now on the table. At trial, however, the court precluded DuPont’s paint-chemistry expert from opining on any of DuPont’s post-1924 paint formulas because DuPont had not disclosed any of these opinions before trial. The plaintiﬀs took full advantage of this gap in DuPont’s defense during closing arguments. They argued that DuPont’s chemical-exculpation defense failed because its expert “came into this courtroom and oﬀered opinions on the years 1917 to 1924” when “you saw that chart that indicated that they made white lead car- bonate products up until 1966.” The prejudice was similar for Sherwin-Williams, whose window of liability expanded from a 37-year period in the ﬁrst half of the twentieth century (1910 to 1947) to a 90-year period (1880 to 1969) during which it produced or marketed paint products containing white lead carbonate. Armstrong is in a unique position because its predecessor- in-interest MacGregor was both a pigment manufacturer and a paint manufacturer at all relevant times. While it is still pos- sible that the court’s error prejudiced Armstrong, Armstrong has made no attempt on appeal to explain how that is so. In the end, we need not resolve this issue because, as we explain below, Armstrong (like Sherwin-Williams) is entitled to relief on other grounds. DuPont is the only defendant that rests its case on this issue. Given the prejudice we have described, DuPont is entitled to a new trial on both claims that went to trial. 30 Nos. 20-1774 et al. 3. Gibson & Fungibility We reject the defendants’ other challenges to the court’s application of the risk-contribution theory. First, Sherwin- Williams and Armstrong ask us to overrule Gibson. They claim that subsequent developments in the law have under- mined Gibson’s analysis. The district court denied the defend- ants’ motion for summary judgment on this point. We review that ruling de novo, viewing the evidence in the light most favorable to the non-moving party. Turubchuck, 958 F.3d at 548; see also Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 719 (7th Cir. 2003) (explaining that even after a trial we may review an earlier denial of summary judgment if the motion for summary judgment raised legal, and not factual, issues). We decline to revisit Gibson. When we weigh in on an un- settled issue of state law, our conclusion binds us until the state’s supreme court says otherwise. Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029–30 (7th Cir. 2004). The Wis- consin Supreme Court has not said otherwise. In fact, it re- cently split 3–3 on the very question that we addressed in Gib- son. Clark, 877 N.W.2d 117. It would be hard to imagine better evidence that an issue of state law remains unsettled. Moreo- ver, the cases upon which we relied in Gibson remain good law. See Matthies, 628 N.W.2d at 861; Martin, 531 N.W.2d at 93. The defendants suggest that Lands’ End, Inc. v. City of Dodge- ville, 881 N.W.2d 702 (Wis. 2016), rejected the balancing anal- ysis that Gibson drew from Matthies and Martin. But Lands’ End did not overrule or undermine either case. Only the concur- rence questioned the “balancing test” that they applied. Id. at 733 (Ziegler, J., concurring). The defendants also cite Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016), but that separation of powers case did not change Wisconsin law. Nos. 20-1774 et al. 31 Second, Armstrong argues that the district court erred in ruling before trial that white lead carbonate was fungible as a matter of law. It maintains that fungibility was a question for the jury. The court resolved this issue at summary judgment, so again our review is de novo, though we review the court’s denial of a new trial on this basis for abuse of discretion. Turubchuck, 958 F.3d at 548; see also Chemetall, 320 F.3d at 719. We easily reject Armstrong’s contention that fungibility is a fact question for the jury to resolve. If fungibility were a fact question, then Thomas would not have held that white lead carbonate was fungible; it would have held instead that there was a fact issue as to fungibility that precluded summary judgment for the pigment manufacturers. Yet the court held, on the record before it, that “white lead carbonate is fungi- ble”—not merely that the pigment manufacturers were not entitled to summary judgment. Thomas, 701 N.W.2d at 561. That holding would make no sense if only the jury could de- cide fungibility. The role of fungibility in the risk-contribution theory fur- ther conﬁrms that it is a legal issue for the court. Fungibility is a prerequisite to applying the risk-contribution theory. The Wisconsin Supreme Court considers it when deciding whether a plaintiﬀ lacks an adequate remedy at law, such that the Wisconsin Constitution authorizes the court to develop one. See Collins, 342 N.W.2d at 44–45; Thomas, 701 N.W.2d at 559–562. Judges, not juries, decide whether the plaintiﬀ has a cause of action, and what that cause of action looks like. See Paul F. Kirgis, The Right to a Jury Decision on Questions of Fact Under the Seventh Amendment, 64 Ohio St. L.J. 1125, 1162 (2003) (“[T]he judge always has the exclusive authority to decide which questions should be asked.”). As a practical matter, it 32 Nos. 20-1774 et al. would be rather bizarre if the parties had to go to trial just to ﬁgure out what legal theory the plaintiﬀ could pursue. We acknowledge that Wisconsin’s civil jury instructions list fun- gibility as an element of a risk-contribution claim. Wis. JI— Civil 3295. Like the district court, we conclude that the jury instructions rest on an incorrect reading of Collins and Thomas. The harder question is whether Thomas established the fungibility of white lead carbonate for future cases. The Wis- consin Supreme Court has sent mixed signals on this ques- tion. Collins stated ﬂatly that DES was fungible, without re- gard to the facts of the case. 342 N.W.2d at 44. Thomas, by con- trast, tied its fungibility determination to the facts of the case, implying that its determination may not necessarily extend to future cases. 701 N.W.2d at 559 n.47, 561. Godoy, meanwhile, proclaimed that Thomas had established the fungibility of white lead carbonate pigment as a matter of law: “In Thomas, we concluded that for the purposes of risk-contribution, white lead carbonate pigment is fungible, and all manufacturers of white lead carbonate pigment could be held jointly and sev- erally liable for injuries caused by the product.” Godoy, 768 N.W.2d at 683. We need not resolve this issue because, even if the fungi- bility of white lead carbonate hinges on the facts of a particu- lar case, Armstrong has not shown that the white lead car- bonate in the plaintiﬀs’ homes was not fungible under any deﬁnition that Thomas considered. Armstrong states, in con- clusory fashion, that it presented evidence in the district court that diﬀerent types of white lead carbonate have diﬀerent chemical compositions and physical properties that permit their identiﬁcation and alter their risk level. But Thomas re- jected the argument that fungibility requires chemical Nos. 20-1774 et al. 33 identity. 701 N.W.2d at 559. Even if Armstrong presented ev- idence that the physical properties of white lead carbonate vary, it does not explain what those variances are or why they make manufacturer identiﬁcation any easier. As such, the court properly resolved fungibility at summary judgment. B. Negligence 1. Product Defect Moving on, Sherwin-Williams alone argues that the dis- trict court erred in ruling that the jury could ﬁnd it negligent in the absence of a product defect. In its view, the court’s grant of summary judgment to the defendants on the plaintiﬀs’ neg- ligent failure-to-warn claims should have been the end of the plaintiﬀs’ negligence claims, given that failure to warn was the only product defect that the plaintiﬀs alleged. The district court denied Sherwin-Williams’s motion for judgment as a matter of law on this point, ruling that Sherwin- Williams could face liability “based on the general duty of or- dinary care” even if its products were not defective. We re- view the court’s ruling de novo. Turubchuk, 958 F.3d at 548. Judgment as a matter of law is proper if “a reasonable jury would not have a legally suﬃcient evidentiary basis to ﬁnd for the party on that issue.” Fed. R. Civ. P. 50(a)(1). In apply- ing this standard, we view the evidence in the light most fa- vorable to the verdict. Turubchuk, 958 F.3d at 548. In Dippel v. Sciano, 155 N.W.2d 55 (Wis. 1967), the Wiscon- sin Supreme Court adopted the products liability rule of the Restatement (Second) of Torts § 402A (1965). Id. at 63. Section 402A supplies the elements of a strict products liability claim, but its rule “is not exclusive, and does not preclude liability based upon the alternative ground of negligence of the seller, 34 Nos. 20-1774 et al. where such negligence can be proved.” Restatement (Second) of Torts § 402A cmt. a; Godoy, 768 N.W.2d at 681 n.7. In recent years, many states have adopted the Third Re- statement’s formulation of a products liability claim, which “eschewed the doctrinal labels ‘strict liability’ and ‘negli- gence’” and “deﬁned the categories functionally, according to their required elements of proof.” Godoy, 768 N.W.2d at 681; see also Restatement (Third) of Torts: Products Liability § 2 cmt. n (1998). In 2011, the Wisconsin legislature adopted the Third Restatement’s rule, but only for strict liability claims. See Wis. Stat. § 895.047. The plaintiﬀs here ﬁled suit before 2011, so the parties agree that § 895.047 does not apply to their claims. Godoy explains the basic diﬀerences between strict liability and negligence under Wisconsin products liability law. Strict liability and negligence are “separate avenues of recovery” with “substantively diﬀerent” elements. Godoy, 768 N.W.2d at 681 n.7. Strict liability “focuses on the nature of the defend- ant’s product, whereas liability in negligence ‘hinges in large part on the defendant’s conduct under circumstances involv- ing a foreseeable risk of harm.’” Id. (quoting Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 745 (Wis. 2001)); see also Morden v. Cont’l AG, 611 N.W.2d 659, 673 (Wis. 2001); Greiten v. LaDow, 235 N.W.2d 677, 683–86 (Wis. 1975) (controlling opinion of Heﬀernan, J.). Despite these diﬀerences, the two claims have at least one thing in common: “Both causes of action require a plaintiﬀ to prove that the product causing injury was ‘defective.’” Godoy, 768 N.W.2d at 681 n.7 (citing Wis. JI—Civil 3200); accord Mor- den, 611 N.W.2d at 673 (“The coexistence of the two theories [i.e., negligence and strict liability] has sparked confusion and Nos. 20-1774 et al. 35 criticism because both rely on an underlying product de- fect.”). As for what constitutes a product defect, Godoy ex- plains that “Wisconsin cases have discussed three categories of product defects—manufacturing defects, design defects, and defects based on a failure to adequately warn.” 768 N.W.2d at 683. Thus, a negligence claim must be predicated on one of those three categories of product defects. See id. at 681 n.7, 683. We have acknowledged, as Morden did, that distinguish- ing between strict liability claims and negligence claims in the products liability context can be confusing. Insolia v. Philip Morris Inc., 216 F.3d 596, 603 (7th Cir. 2000); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 467 (7th Cir. 1984). Indeed, Wis- consin’s continued distinction between the two claims has generated signiﬁcant criticism. Morden, 611 N.W.2d at 673; Sharp ex rel. Gordon v. Case Corp., 595 N.W.2d 380, 388 (Wis. 1999) (summarizing criticism but declining to overrule prece- dent); Restatement (Third) of Torts: Products Liability § 2 cmt. n (discussing the “mischief caused by dual instructions on both negligence and strict liability”). We need not wade into this debate. We do note, however, that the claims’ shared re- quirement of a product defect has been at the heart of the crit- icism. Morden, 611 N.W.2d at 673; see Sharp, 595 N.W.2d at 388; Restatement (Third) of Torts: Products Liability § 2 cmt. n. Requiring a product defect for negligence claims makes sense because otherwise a defendant might be found negli- gent merely for making and selling a potentially dangerous product. “It is boilerplate law that, merely because a product or an operation is not as safe as possible, because there are better methods of manufacture or performing an operation does not lead to the conclusion that the method employed was 36 Nos. 20-1774 et al. undertaken with a lack of ordinary care or the product was defective.” Greiten, 235 N.W.2d at 685 (controlling opinion of Heﬀernan, J.); see also Collins v. Ridge Tool Co., 520 F.2d 591, 594 (7th Cir. 1975) (“[A] manufacturer is under no duty to pro- duce accident or fool-proof products. Neither is the manufac- turer an insurer that its product is incapable of producing in- jury.”) (citation omitted). Allowing a claim of negligence without a product defect, as the district court did here, allows a jury to ﬁnd the defendant negligent in the absence of any actual negligence, whether in the design, manufacture, or marketing of a product. There is a name for this type of liabil- ity—it is called strict liability, not negligence. See Restatement (Second) of Torts § 402A(2)(a) (allowing liability even if “the seller has exercised all possible care in the preparation and sale of his product”). The district court’s theory was that the defendants could be found negligent because they continued to sell white lead carbonate pigment for residential uses while knowing the dangers that it posed to homeowners and their children. It found support for this broad theory of liability in Judge Learned Hand’s famous B

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