Plaintiffs move for summary judgment on the issue of the fungibility of WLC. I concluded in the Burton trial that, under Wisconsin law, WLC is fungible as a matter of law. Burton v. American Cyanamid , 341 F.Supp.3d 941, 945 (E.D. Wis. 2018) ; see also Burton v. American Cyanamid , 07-CV-0303, ECF no. 1059. Sherwin-Williams opposes plaintiffs’ motion but makes no arguments I did not consider in my original ruling.
Indeed, before trial I denied plaintiffs' motion for summary judgment on the defense of intervening, superseding cause—which Wisconsin courts treat as subsumed within the first, "remoteness" public policy factor, seeCefalu v. Continental Western Ins. Co. , 285 Wis.2d 766, 780, 703 N.W.2d 743 (Wis.App. 2005) —and indicated that I would address the question after the facts had been fully developed before the jury. Burton v. American Cyanamid , 341 F.Supp.3d 941, 948 (2018). For purposes of this motion for JNOV, defendants admit and I assume that the findings of the jury's verdicts are true; the motion asserts that judgment should be granted to defendants on grounds other than those decided by the jury.