Rhode Island Lead Paint Case Reversed

In an impressive victory for the paint industry, the Rhode Island Supreme Court overturned the major verdict against three former lead paint producers. Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC liable secured a 4-0 sweep of the court in a setback for advocates of these cases employing a novel use of nuisance law.

These cases would normally be filed as product liability actions. However, the statute of limitations has long run on such claims. By redefining the controversy as an on-going nuisance, the state was able to sue for the use of lead paint decades earlier.

The state was seeking $2.4 billion in damages.

Chief Justice Frank Williams wrote “Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm.”

This is only the latest such rejection of the nuisance and market share theories against the industry. However, this is clearly the most important. I have long expressed opposition to such lawsuits, which seem to be examples of legislation through litigation. For prior testimony, click here.

For a copy of the opinion, click here.
For the full story, click here.

14 thoughts on “Rhode Island Lead Paint Case Reversed”

  1. Jim,

    That was well reasoned on your part.

    Mespo,

    True! And it was fun to create the First Church of Ornithology!

    Jill

  2. Jim:

    I agree with that analysis. I doubt the public perception of lawyers will change in either event though. We’ve been badmouthed for years. Here’s Keats on the subject: ““I think we may class the lawyer in the natural history of monsters.” The heartening thing is the most people after dealing directly with their lawyer change that perception according to an ABA study on lawyer perception in 2002. So I guess the best way to turn around the negatives is have more clients, treat them fairly and hope for the best. Of course the other side will usually hate you.

  3. Interesting article…

    http://www.legalnewsline.com/news/211554-lead-poisoning-at-new-low-in-rhode-island

    MONDAY, APRIL 28, 2008

    Lead poisoning at new low in Rhode Island
    BY JOHN O’BRIEN

    PROVIDENCE, R.I. (Legal Newsline) – The State of Rhode Island’s landmark lead paint lawsuit might be a lot of fuss over a receding problem, recently released figures show.

    Incidents of lead poisoning among Rhode Island children have “declined dramatically” over the past 10 years, according to a report by the state Department of Health. This news comes with only a few weeks left before the state Supreme Court hears oral arguments in the State’s suit against three former manufacturers of lead paint.

    Only 1.3 percent of children tested had elevated levels of lead in their blood, down from 6.6 percent in 1998. In 2007, 388 children were found to have elevated levels for the first time.

    “Rhode Island must continue to focus on primary prevention and lead-safe housing to protect children from becoming lead poisoning in the future,” the report says.

    More than half of the 388 first-time cases occurred in Providence, and the total amount reduced 22 percent from 2006.

    Lead paint was outlawed in 1978, and plaintiffs firm Motley Rice convinced former Rhode Island Attorney General Shelden Whitehouse to hire it on a contingency fee to bring the first state-backed case over the issue in 1999.

    An attorney at Motley Rice thought of bringing a claim of public nuisance to work around certain defenses, like the tolled statute of limitations.

    The first trial resulted in a mistrial, the second (filed by current Attorney General Patrick Lynch) in a 2006 verdict against three companies, NL Industries, Millennium Holdings and Sherwin-Williams.

    The state Supreme Court will hear oral arguments in the companies’ appeal May 15. If the verdict is upheld, they may be on the hook for Lynch’s proposed $2.4 billion abatement plan, but will not pay any compensatory or punitive damages.

    Similar suits have failed in Wisconsin, Missouri and New Jersey. Sherwin-Williams attorney Charles Moellenberg blamed the Rhode Island loss on jury instructions given by Superior Court Judge Michael Silverstein.

    Assistant Attorney General Neil Kelly had claimed figures had “reached a plateau” and would not decline more.

    “The risk of a child becoming lead poisoned in Rhode Island has decreased over time,” the report says. “Approximately one in four children (29.6%) born in 1992 were lead poisoned before the age of 6, compared to one in 17 children (5.9%) born in 2001.

    “In order to further decrease the rate of lead poisoning, Rhode Island must continue to make lead-safe housing a priority.”

    It is the State’s goal to eliminate lead poisoning by 2010. Cases of significant lead poisoning also went down, with only 94 being report. In 2003, there were 185.

    Lynch’s office had no comment.

    “Plaintiff’s overall strategy appears to be to de-emphasize the law, detract from the far-reaching legal and constitutional issues this case presents, and convince the Court that children will be severely and permanently injured unless the decision below is affirmed,” a brief filed by Sherwin-Williams says.

    “This suggestion is factually wrong, legally empty and an affront to the General Assembly, the Rhode Island Department of Health, and their successful policies and programs that continue to make great progress in eliminating lead hazards from the State.

    “Indeed, the suggestion is refuted by the dramatic decline in childhood blood lead levels in Rhode Island that continues today.”

    The suit is being closely watched around the country. An amicus brief filed by 16 state attorneys general defended Rhode Island’s suit, and Motley Rice attorney Jack McConnell, a campaign contributor of Lynch’s, told the Providence Journal that he has been approached by other states about filing similar actions.

  4. I think there is a difference, perhaps not from the defendants’ perspective, then at least from the perspective that the Wall Street Journal espoused in its editorial this week — that lawyers “ginned up” the public nuisance theory ostensibly to do justice but really to do little more than line their own pockets. Granted, this may have little to do with whether the public nuisance theory should have survived in these circumstances (I happen to think that it should have). But it seems to me that perception — that is, the perception of lawyers and their motives — matters here.

  5. Jim:

    You are precisely correct and the cost of that abatement was estimated at 2.4 billion Washingtons. I see the distinction, but is there a difference?

  6. It simply isn’t true that the State was seeking 2.4 billion dollars. That figure is simply the estimate of how much it was going to take the lead paint companies to abate the lead.

    The primary remedy sought here was not money, but abatement.

  7. “Virgina maintained separate law and equity divisions within our courts of general jurisdiction, the Circuit Courts, until 2006. On July 1, 2006, the law and chancery (equity) divisions within the Circuit Courts were merged and the remedies available remained unchanged.”

    After reading this, the first voice that popped in my head was Quint from Jaws…

    Quint: “Jesus H. Christ chief; is that a portable shower or a monkey cage?”

    2006???

    On on hand it may have been a good thing; since judges up here more often than not tend to be COMPLETELY IGNORANT of the extent of their ‘equitable powers.’

    On the other hand… 2006????

    My God.

  8. Bob,Esq:

    Virgina maintained separate law and equity divisions within our courts of general jurisdiction, the Circuit Courts, until 2006. On July 1, 2006, the law and chancery (equity) divisions within the Circuit Courts were merged and the remedies available remained unchanged. The pleading were also merged such that one uniform civil complaint may now be filed seeking one or both forms of relief. In essence, the Circuit Court maintains its nisi prius powers to award legal as well as equitable relief under a uniform system of pleadings. It only took us 400 years to get that straight.

    Unfortunately, Justice Roberts et als forget about their role as Chancellors choosing to focus on the more narrow issues at law. I am not advocating using equitable remedies to interpret the US constitution. I am simply contending – along with you – that the role of the Judge is more than mere referee of disputes. He/she has an historic affirmative duty to act in the face of manifest injustice, which like “bad faith,” a Judge will know it when he/she sees it.

  9. Mespo,

    I’m not sure how it works in ‘Rogue Island’ or Virginia, but in New York the courts of Equity and Law were merged in the early 1800’s. I want to say 1837, but I can’t recall the exact date off the top of my head.

    Anyway, as you know, the courts of law and equity existed separately. The court of law strictly determined rights at law, while the court of equity (forum poli) was empowered to craft remedies so as to avoid injustice.

    The best summary I ever found on the functions of the two courts was by you know who:

    “The dictum of equity may be put thus: “The strictest right is the greatest wrong” (summum jus summa injuria). But this evil cannot be obviated by the forms of right, although it relates to a matter of right; for the grievance that it gives rise to can only be put before a “court of conscience” (forum poli), whereas every question of right must be taken before a civil court (forum soli).”

    http://ethics.sandiego.edu/Books/Kant/ScienceofRight/IE/index.htm

    Immanuel Kant, “Science of Right” 1.6.1 I. Equity.

    Accordingly, justices wiping their hands of any responsibility to fulfill their obligations as courts of equity, i.e. including Roberts, are as full of shi+ as Christmas geese; Roberts even more so as he now sits on a court that bases almost it’s entire authority John Marshall using Marbury to pull the power of judicial review out of thin air and effectively amending the constitution, Article V not withstanding, by relying on the equitable maxim “for every right there is a remedy.”

    Regards,

    Bob

  10. Bob,Esq:

    As one who has clients indirectly affected by this decision, I can tell you this is pre-1978 lead paint that was improperly or never abated. It’s usually low income kids in substandard housing. Look how reluctant the Rhode Island Supreme Court was in making this ruling:

    “This Court is powerless to fashion independently a cause of action
    that would achieve the justice that these children deserve.”

    Paint containing more than 0.06% (600 ppm)[vague] lead was banned for residential use in the United States in 1978 by the U.S. Consumer Product Safety Commission (16 Code of Federal Regulations CFR 1303). The companies involved were members of the Lead Industries Association, Inc.

    Interesting comment in the opinion regarding the Judge’s role. The RI Supremes quote Cardozo and current CJ John Roberts for the proposition that Judges have limited power to right wrongs. Roberts is quoted as saying “judges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”

    Contrast that with the commission to Judges for the Crown in England in the Seventeenth Century. “…the Judge whether he be Judge of the Assize, or a Justice of the peace, or any other Judge, being judge by commission or record is sworn to do justice….” Floyds v. Barker, 77 ER 1305 (1608). Francis Bacon was more eloquent: “[d]o good to the people, love them and give them justice; but let it be as the Psalms saith nihil inde expentantes, looking for nothing, neither praise nor profit.” Good enough for our ancestors at Jamestown, but not for us today. Some call it progress.

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