Editor’s note: This is the second of three stories that will explore the current state of lead paint litigation and are based on Legal Newsline’s discussion with paint industry spokesperson Bonnie Campbell and Sherwin-Williams attorney Chuck Moellenberg. The first can be found here.
In 1999, plaintiffs firm Motley Rice threw handfuls of legal theories against a courtroom wall to see if any would stick.
And, boy, is one of them sticky. Rhode Island even appears covered in it.
“It was a lawsuit in search of a legal theory,” said former Iowa Attorney General Bonnie Campbell, now the spokesperson for the lead companies facing several suits filed by Motley Rice.
“In the initial petition in Rhode Island, there were 14 or 15 causes of action, or something like that. All were kicked out except public nuisance.”
Some, like Victor Schwartz of the American Tort Reform Association, have criticized the power Motley Rice has over the case in Rhode Island. He said the firm “is driving the bus” of the most major success story against paint companies sued for manufacturing lead paint before it was outlawed in 1978.
Chuck Moellenberg of Jones Day in Pittsburgh has helped defend paint companies for more than 20 years and says Motley Rice is just looking for a large payday. Last year, cases in Wisconsin, New Jersey and Missouri all went in the defendants’ favor.
Motley Rice’s original complaint in Rhode Island v. Lead Industries Association, et al., contained 10 counts: Public nuisance, violation of the state’s Unfair Trade Practice and Consumer Protection Act, strict liability, negligence, negligent misrepresentations and omissions, fraudulent misrepresentations and omissions, civil conspiracy, unjust enrichment, indemnity and equitable relief to protect children.
And it was filed against eight companies, though seven years later only Sherwin-Williams, NL Industries and Millennium Holdings were found to have created a public nuisance when they manufactured lead-based paint.
It is a claim of public nuisance that is not subject to a statute of limitations. Motley Rice attorney Fidelma Fitzpatrick is credited with the idea of using it against the paint companies.
The firm marketed the idea to states and municipalities and got its biggest bite in 1999 when then-Rhode Island Attorney General Sheldon Whitehouse agreed to hire Motley Rice to pursue the case at a 16.7-percent contingency fee rate.
“The plaintiffs have gone from theory to theory and place to place and lost everywhere,” Moellenberg said. “They lose one and go on to something else, theories that just don’t mesh with centuries of Anglo-American law.”
The roots of public nuisance are in English criminal law. In California, a jury ruled a contingency fee firm could not bring a public nuisance claim, and the jury in Missouri said blame for specific injury could not be assigned to specific companies.
“Why do the lawsuits keep happening?” said Bonnie Campbell, spokesperson for the defendants and former Attorney General of Iowa. “They’ll keep happening until (Motley Rice) is looking at that great moment when they hit paydirt.”
In Rhode Island, that could happen after the companies’ appeal is heard in the Spring. That would almost assuredly lead to suits from other state attorneys general.
The defense is already critical of the relationship between Lynch and Motley Rice. After the first trial ended in a mistrial and Whitehouse prepared to leave office in 2002, Motley Rice’s Jack McConnell, of the firm’s Providence office, contributed $1,000 to Lynch’s election efforts.
In Lynch’s next campaign, McConnell gave him $2,000. In between, in Lynch’s non-election year of 2004, McConnell still gave him $2,000.
And in analyzing a settlement reached with DuPont, Sherwin-Williams said both are using the settlement funds for their own personal gain — not for the good of the State.
Moellenberg said Lynch gave $1 million to his alma mater, Brown, and Motley Rice satisfied a pledge to a Boston hospital with $2.5 million from the settlement. He adds that the money should have been given to the state’s general fund for appropriation.
“I’m sure the Attorney General doesn’t mind seeing headlines mentioning his name,” Moellenberg said.
“It’s odd and I think unlawful that the Attorney General, in a sense, appropriated the DuPont settlement moneys for his own purposes. It’s curious part of the money went to his alma mater, another part when to pay off a pledge made by Motley Rice to a Boston hospital, then the rest of the money went to the Children’s Health Forum, which is not based in Rhode Island at all.”
In fact, Lynch on Tuesday $1.2 million from the Children’s Health Forum was being awarded to six state agencies.
“As a result of our partnership with the Children’s Health Forum, we have initiated an outstanding model program whose goal is to make the awful and harmful effects of lead poisoning in our kids a scourge of the past,” Lynch said.
“Education, outreach, and training are crucial components in increasing protections throughout our neighborhoods and communities, and in preventing lead poisoning from exacting a greater toll on our children’s health, and their futures.”
All totaled, employees of Motley Rice have given $51,475 in campaign contributions on the state level since the lawsuit was filed in 1999, according to followthemoney.org.
Whitehouse, who took a failed run at the Governor’s office that was backed by Motley Rice, claimed he was doing it for the children. Lynch has maintained that sentiment.
Ron Motley said he would give up his boat if he didn’t bring the paint industry to his knees in three years. That was in 1999, when he was ready to parlay his tobacco settlement winnings into the lead paint crusade.
The Superior Court did not award compensatory or punitive damages, so it is unclear what kind of fees Motley Rice would be awarded if the decision is upheld. Lynch’s abatement plan is estimated to cost $2.4 billion.
“These lead companies are scumbags,” he told a reporter for Forbes. “They’re as bad or worse than the tobacco companies. They’ve preyed on little children.”