In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1639

IN RE:

SHERWIN-WILLIAMS COMPANY,

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.

SUBMITTED MARCH 17, 2010—DECIDED JUNE 7, 2010

Before KANNE, ROVNER, and TINDER, Circuit Judges.

PER CURIAM. In this petition for a writ of mandamus,

Sherwin-Williams Company asks us to order District

Judge Lynn Adelman to recuse himself from presiding over four cases in which it is a defendant. SherwinWilliams 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 nonetheless recover in a suit against pigment manufacturers.

Judge Adelman is now presiding under diversity jurisdiction 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, however, 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 adequate 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 without 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 diethylstilbestrol 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 contributed 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 pigments 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 landlords 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 plaintiff 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 courthouse 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 circumstances.” 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 surrounding 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 characterization 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 decisions 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 anything 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 leadpaint 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 district 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) generally 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 DENIED.

6-7-10