Liability or Nuisance? Decision was easy for AG Lynch

John O'Brien Feb. 27, 2007, 4:49pm


PROVIDENCE, R.I. - Rhode Island Attorney General Patrick Lynch has always wanted the companies that used to manufacture lead-based paint to take liability for their product, just not in a products liability case.

So to get around any products liability defenses, he and Motley Rice, one of the nation's largest plaintiffs firms who is representing the State, crafted a public nuisance complaint, New Jersey attorney David Nieporent said Tuesday.

"If I were a plaintiffs attorney here, this is exactly the argument I'd be making," said Nieporent, of Montvale firm Smith and Stein.

"You'd have to come up with some theory to get around these problems."

A little more than a year ago, a state jury found Sherwin-Williams Inc., Millennium Holdings and NL Industries guilty of creating a public nuisance by manufacturing lead paint decades ago, before it was prohibited in 1978.

Monday, Superior Court Judge Michael Silverstein denied the companies' motions for a new trial and judgment as a matter of law and said he will appoint a special master to oversee the companies' cleanup of lead paint in the state. Estimates say this could cost several billion dollars.

The companies are likely to appeal to the state's Supreme Court in hopes of avoiding setting a dangerous precedent. They argue that the case should be treated as a products liability case, not public nuisance.

"Essentially, by treating it is a products liability case, there are a lot of defenses available that the judge correctly ruled weren't completely applicable to a public nuisance case," said Nieporent, whose blog can be found here.

"Those defenses would have been completely successful of striking everything that the State alleges."

For starters, the companies could have claimed the action was prohibited by the three-year statute of limitations on products liability cases. It took the State more than 20 years after the federal government prohibited lead paint to file its suit.

There is no statute of limitations on public nuisance claims -- "at least no formal one," Nieporent said.

And since the State brought the action, the paint companies could not argue that the nuisance claim took too long. Had the lawsuit been a class action case, that's another defense the companies could have used, Nieporent said.

Also, the market share argument Lynch made would not have worked in a products liability case, only a nuisance.

"They can make the argument that these companies sold 'X' percent of the paint on the market -- I believe it was a high number, around 75-80 percent -- and they can say, 'We know they were selling it and some of it ended up in Rhode Island,' and be able to blame them without having to show that any of the manufacturers' paint is on the buildings," Nieporent said.

"It's an example of creative lawyering."

And had the companies been able to offer proof that they had no idea the effects of their paint while they were manufacturing it, it wouldn't have mattered. Silverstein ruled that that fact is inconsequential to a public nuisance case.

But it wouldn't have been in a products liability case.

"The judge ruled it was irrelevant, that this is not a case of being negligent," Nieporent said. "They're just accused of creating a nuisance."

Though several cities have similar cases, Lynch's is the first case of the kind brought on by a state. Experts feel other states are waiting for its outcome before they proceed with similar suits. Lead paint, which is toxic to many of the body's tissues, still contaminates 250,000 state homes, according to Rhode Island. Children are particularly susceptible to the effects of lead.

The companies argue that Lynch is misrepresenting the spread of lead poisoning and point to a decline in reported cases. They also say landlords who failed to maintain their properties were more responsible than they are, considering they stopped making the paint decades ago.

The issue seems destined for the state's Supreme Court. Nieporent said there have been several defenses made available recently that make products liability litigation more equitable, but they aren't applied to public nuisance claims -- yet.

"There's very little statutory guidance in this area," he said. "(The Supreme Court) will have an opportunity to essentially make new law. Whether they do so or not, I don't know. These are established rules being applied to an entirely new situation."

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