Supreme Court accepts five new cases

Madison, Wis. (March 28, 2008) – The Wisconsin Supreme Court has voted to accept five new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals opinions/certification memos available online for the newly accepted cases are hyperlinked.


2006AP2670                           Godoy v. E.I. du Pont


This is a product liability case involving lead paint and pigment manufacturers. A decision by the Supreme Court could affect more than 30 similar cases pending in Milwaukee County Circuit Court and how the Supreme Court’s 2005 decision in Thomas ex rel. Gramling v. Mallett may be applied in other cases.


Some background: According to the complaint, Ruben Baez Godoy, now 10 years old, was poisoned when he was one year old after ingesting white lead carbonate derived from painted surfaces, paint chips, paint flakes and dust while living in a Milwaukee apartment with his family in 1998.


The complaint alleges that the defendants, including du Pont, the Sherwin-Williams Company and American Cyanamid Co., knew that the white lead carbonate was dangerous when used in paint. The companies allegedly lied by failing to disclose the hazardous nature of white lead carbonate and by representing their products as safe.


Attorneys for Godoy have asked the Supreme Court to determine if the white lead carbonate pigment was defectively designed where the injury-causing lead is a prominent ingredient in the paint pigment.


The circuit court dismissed the plaintiff’s strict liability and negligence defective-design claims, concluding that lead is inherent in the product white lead carbonate and that white lead carbonate could not be designed without using lead.


The Court of Appeals affirmed, saying the issue presented is whether a product can be considered defectively designed when the design is inherent in the nature of the product.



The parties are at odds as to whether Godoy’s claim complies with the Supreme Court’s decision in Thomas, which expressly recognized the right of a lead-poisoned child to sue the former manufacturers of lead pigment for personal injury damages under both negligence and strict liability.


Godoy contends the theory that there is no alternative design is predicated on the incorrect assumption that the product in question here is leaded pigments. He says the product in question is paint pigment, and the appropriate question is whether paint can be made without lead.


DuPont argues the issues presented here do not bear on the “risk contribution” doctrine, and the Supreme Court’s decision in Thomas does not apply because Thomas did not appeal design defect claims.


DuPont also contends the defective design argument is “akin to alleging that a manufacturer of knives should have made spoons instead,” and that the issue of paint pigment was not brought up until appeal.


Another of Godoy’s claims — “failure to warn” — was not dismissed by Milwaukee County Circuit Court, and that portion of the case is still pending in the circuit court during leave for this appeal. From Milwaukee County. Justice Patience Drake Roggensack did not participate.



2008AP333-CQ          Plastics Engineering Co. (Plenco) v. Liberty Mutual


The U.S. Court of Appeals for the 7th Circuit has asked the Wisconsin Supreme Court to certify three questions related to this case, which involves insurance coverage for asbestos-related lawsuits. As the 7th Circuit points out, there does not appear to be any Wisconsin precedent addressing the three specific issues:


1)      What constitutes an “occurrence” in an insurance contract when exposure injuries are sustained by numerous individuals at varying geographical locations over many years;

2)      Whether Wisconsin Wis. Stat. § 631.43 (1) applies to successive insurance policies; and

3)      Whether Wisconsin courts would adopt an “all sums” or pro rata allocation approach to determining liability when an injury spans multiple successive insurance policies.


Some background:  Plenco, which began manufacturing molding compounds in 1934, has been a defendant in hundreds of lawsuits for claims arising from individuals’ exposure to asbestos-containing products it manufactured from 1950 to 1983. Liberty Mutual Insurance Co. provided primary general liability policies to Plenco beginning in 1957 and umbrella policies for most of the years since May 1970.


In 2004, Plenco filed a complaint in U.S. District Court for the Eastern District of Wisconsin against Liberty Mutual. Plenco sought a declaratory judgment that Liberty Mutual was obligated to fully defend Plenco in all of its pending and future asbestos-related lawsuits. Liberty Mutual sought an opposing declaration that it was not obligated to pay certain defense and indemnification expenses and was entitled to a refund for some expenses.


The parties stipulated to a joint statement of facts and subsequently filed motions for summary judgment in the 7th Circuit.


On Oct. 2, 2006, the 7th Circuit Court issued a decision and order granting in part and denying in part each party’s motion for summary judgment. The court subsequently entered a final declaratory judgment to which both parties consented.


The judgment lays out an understanding on how coverage will be handled, depending on the timing and definition of “occurrences.” Both side appealed.


A decision by the Supreme Court could clarify the definition of “occurrence” under Wisconsin law and control the outcome of the appeal in the 7th Circuit. A decision also could have public policy implications and resolve questions likely to recur in the state. This case originated in the U.S. District Court for Eastern Wisconsin.


2007AP46                   D.L. Anderson’s Lakeside Leisure Co. v. Anderson Marine


This case involves claims that a non-compete clause was violated and that a common law trade-name infringement occurred after the execution of an asset purchase agreement involving businesses in the Waunakee area.


D.L. Anderson’s Lakeside Leisure Co., Inc., M. Scott Statz and Steven Statz seek review of a decision affirming in part, reversing in part, and remanding a judgment entered on a jury’s verdict against Donald Anderson and Anderson Marine, LLC.


Some background: In October 2000, the Statzes purchased D.L. Anderson Marine Contractors, which also operated under the name D.L. Anderson Co. The agreement included a non-compete clause, stating that for seven years within a 120-mile radius of Waunakee, Donald Anderson would not permit his name to be used by any competing business. 


Around January 2002, Anderson began working as a dealer representative for a pier manufacturer and boat-lift distributor in Wisconsin and four other states. In the fall of 2003, Anderson formed another business, Anderson Marine, LLC, which operated under the name “The Sailboat House at Anderson Marine, which sold boats and marine accessories about a mile away from the Statzes’ business.


The Statzes sued, and, after a three-day trial, a jury found Anderson breached the non-compete clause and awarded $15,000 in compensatory damages. The jury also found Anderson had infringed on the D.L. Anderson Co. trade name and awarded $75,000 in compensatory damages on this claim, $160,000 in punitive damages against Anderson Marine, LLC. The court extended the duration of the non-compete clause and awarded $118,435 in attorney fees for both claims in accordance with the contract.


The Andersons appealed. The Court of Appeals first determined sufficient evidence supported the jury’s finding of breach of the non-compete clause and the $15,000 in compensatory damages. Second, it concluded sufficient evidence supported the finding of trade name infringement but the $75,000 compensatory damage award was unsupported. Therefore, it reversed both the compensatory and punitive damage award on the trade name infringement. Third, it ruled that with one geographical modification, the injunctive relief extending the duration of the non-compete provision was proper. Finally, it held that based on the contract language, the attorney fee award must be reduced and remanded for that purpose.


Both sides have asked the Supreme Court to review. A decision by the Supreme Court could develop the area of law involving trademark infringement, damages and non-compete clauses. From Dane County. Justice Annette Kingsland Ziegler did not participate.


2006AP1744-CR                                State v. Denk


The District IV Court of Appeals has certified the question of whether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of a previous case, State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W. 2d 568.


Some background: A police officer in Pepin County came upon a car parked on the side of the road and asked its driver, Christopher Pickering, if he needed help. 


Upon running a license plate check, the officer discovered the license plates on the vehicle did not belong to Pickering’s car. When the officer returned to the car, he smelled marijuana and eventually found drug paraphernalia and marijuana.


After formally arresting Pickering, the officer walked around to the passenger side of the car, where he saw a small eyeglass case on the ground in the vicinity where the passenger, Jordan A. Denk, was standing. Denk conceded the eyeglass case belonged to him and placed the case on the hood of the car at the officer’s request. Denk denied owning the contents, which turned out to be a glass “methamphetamine pipe” and “some cleaning tools.” The officer arrested Denk and searched him, finding a baggie of marijuana, two marijuana pipes and a baggie containing methamphetamine.


Denk was initially charged with two felonies, including possession with intent to deliver THC and simple possession of methamphetamine, and two misdemeanors. The state later dropped the felony charge of possessing THC with intent to deliver but amended the complaint to include a Class H felony charge of possession of methamphetamine-related drug paraphernalia.


The circuit court denied Denk’s motion to suppress the results of the search of his eyeglass case and his person, concluding the officer was justified in his search incident to Pickering’s arrest. The circuit court also concluded that Denk had consented to the search of the eyeglass case.  After the circuit court denied the suppression motion, Denk reached a plea agreement with the state under which he pleaded no contest to a Class I felony count of possessing methamphetamine-related drug paraphernalia. The state agreed to dismiss the more serious Class H felony and the two misdemeanors.


Denk filed a post-conviction motion to withdraw his guilty plea, contending the state could not have legally charged Denk with the Class H felony.


The Court of Appeals certification memorandum focuses on the search of the eyeglass case and whether its search could be justified as incident to the arrest of the driver, Pickering.


The state argues the search incident to the arrest of a driver of a vehicle should extend beyond a vehicle’s interior to an immediate area surrounding the vehicle from which the driver could retrieve a weapon or evidence. To rule otherwise would allow criminals to get rid of evidence or contraband simply by throwing it out of the vehicle, the state contends.


Denk asserts the search-incident-to-arrest exception authorizes police to search only the interior compartment of an automobile in which the individual was a recent occupant.


A decision by the Supreme Court could develop law in this area and determine how case law applies to this situation. From Pepin County.


2006AP1811                           State v. Patrick C. Carter


In this criminal case, the state’s petition for review sets forth a single issue: “Is a defendant who is arrested in a foreign state on both a violation of the foreign state’s criminal law and a fugitive warrant based on pending criminal charges entitled to sentence credit on a concurrent sentence for the time spent in custody in the foreign state after arrest and before sentencing on the foreign state’s conviction?”


Some background: On July 23, 2003, a criminal complaint charging Patrick C. Carter with first-degree recklessly endangering safety was filed in the Milwaukee County Circuit Court. A felony arrest warrant, which authorized Carter’s extradition from any state, was then issued.


On Dec. 14, 2003, Carter was arrested in the Chicago area in connection with an armed robbery and a charge of driving under the influence (DUI). The Illinois authorities also placed a hold on Carter because of a Wisconsin “fugitive warrant.” Two days later, Carter was “charged” with the Wisconsin warrant. Carter remained in Cook County Jail nearly a year, during which time he was sentenced to a seven-day jail term for the DUI charge. He was also convicted of the armed robbery charge and was given a 14-year sentence for that offense.


On March 14, 2004, while in Cook County Jail, Carter was served with a Wisconsin governor’s warrant. After being sentenced on the Illinois armed robbery conviction, Carter was extradited to Wisconsin. On Aug. 30, 2005, Carter entered a guilty plea to the Wisconsin charge of first-degree recklessly endangering safety. He was sentenced to seven and a half years of initial confinement and five years of extended supervision. The court stated the sentence was to run concurrently to the existing Illinois sentence. Pursuant to an agreement between defense counsel and the prosecutor, Carter was given 91 days of sentence credit for the period between his initial appearance in Wisconsin on June 1, 2005, and the sentencing date.


The circuit court denied Carter’s post-conviction motion seeking a sentence credit for 324 days for the time he had been incarcerated in Illinois prior to the beginning of his Illinois armed robbery sentence, concluding Carter had not been in custody “in connection with the course of conduct for which (the Wisconsin) sentence was imposed” under Wis. Stat. § 973.155 until he had been placed under the control of Wisconsin authorities.


The Court of Appeals reversed, granting Carter credit for 227 additional days of incarceration, in part because some of the time served in custody in Illinois was attributable to the Wisconsin fugitive charge.


A decision by the Supreme Court could clarify how the rulings in prior cases fit together when interpreting the sentence credit statute in Carter’s situation. From Milwaukee County.



Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the court’s discretion (see Wis. Stat. (rule) § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court.




2006AP3064               State v. Bergemann



2005AP862                 Schmidt v. Northern States

Justice Annette Kingsland Ziegler did not participate.



2006AP1754               Erdman v. General Int.


Justices David T. Prosser and Patience Drake Roggensack dissent.


2006AP2355-CR        State v. Obriecht


2006AP2922               Lacy v. Ray


2007AP382-CR          State v. Normington


2007AP420-CR          State v. Obriecht


2007AP2918-W          McCord v. Cir. Ct. for Dane Co.



2007AP112                 Torres v. Wells



2007AP425                 State v. Schwartz



2006AP2990-CR        State v. Howell



2008AP355-W            Torzala v. Wis. Ct.



2006AP3043-CR        State v. Hart


2007AP2658-CR        State v. Buchanan


La Crosse

2006AP2587-CR        State v. Perkins




2007AP996                 State v. Maus



2007AP240                 Drow v. Hoenisch



2004AP2607-CR        State v. Anderson


2006AP77-CRMN      State v. Brown


2006AP2183-CRNM  State v. Clincy


2006AP2735-CR        State v. Stewart


2006AP2983               Pearson v. Dye


2007AP218                 State v. Maddox


2007AP902                 Landmark Credit Union v. Borum


2007AP904-CR          State v. White


2007AP929-CR          State v. Westmoreland


2007AP2331-CR        State v. Miller



2007AP849-CRNM    State v. Klatt



2006AP1231-CR        State v. McAnulty



2007AP990-CR          State v. Vlach


2006AP2351               State v. Henderson


2007AP139                 State v. Jeremy J.S.


2007AP354-CR          State v. Marsh



2006AP2721               State v. Minnich


2007AP986                 Celske v. Schwarz



2007AP651                 Shawano Co. v. Minniecheske


2007AP1092               Marriage of:  Ladd

Chief Justice Shirley S. Abrahamson dissents.




2006AP2830               Kohler Co. v. Gutoski

Justices Patience Drake Roggensack and Annette Kingsland Ziegler dissent.


2007AP866                 Willems v. Rural Mut. Ins.



2006AP2878               Mancini v. Mathews



2006AP1574-CR        State v. Roou

Chief Justice Shirley S. Abrahamson dissents.


2006AP2583               State v. Yogerst

Justice Annette Kingsland Ziegler did not participate.



2008AP168-W            Durigan v. Wis. Ct. App.