Paint companies criticize Lynch's abatement plan

John O'Brien Nov. 26, 2007, 4:36pm

PROVIDENCE, R.I. - Three paint companies continued to argue with Rhode Island Attorney General Patrick Lynch Monday, filing a motion to strike Lynch's lead paint abatement plan that would cost them a total of $2.4 billion.

The companies -- Sherwin-Williams, NL Industries and Millennium Holdings -- made five main points in their supporting memorandum while calling the plan "legally deceptive."

"This motion merely requests that the AG be held to the Court's rulings, the trial record, jury instructions, jury verdict and positions taken by the AG throughout the case," the companies wrote.

"To the extent that the Plan is inconsistent with the law and the evidence in this case, established during the proceedings up to and including trial, the Plan cannot stand."

In Feb. 2006, a state Superior Court jury upheld a lower court ruling that said the companies were liable for the presence of lead paint under a claim of public nuisance. They had stopped making the paint when it was outlawed in 1978, but many buildings are still coated with it.

When ingested, lead paint has been linked to physical problems, especially in children.

The idea for the public nuisance suit was introduced to the State by plaintiffs firm Motley Rice, which needed a way around the defenses each paint company could use in a products liability claim, such as the now-tolled statute of limitations. Motley Rice attorney John McConnell is a campaign contributor to Lynch.

Similar suits have failed in the supreme courts of New Jersey, Wisconsin and Missouri.

After denying the companies' post-trial motions, Superior Court Judge Michael Silverstein ordered the planning of the abatement process. The defendants have said they will not go through with it until their appeal is ruled on in the state Supreme Court. Silverstein has said that there is "little likelihood" the companies will succeed.

Monday, they said Lynch's plan should not be used, even if the appeal is denied, because:

-It seeks money damages that cannot be awarded in equity -- "The Court is constitutionally precluded from awarding money damages, a form of relief exclusively reserved for the jury," the memorandum says. It adds that a payment of money or creation of a fund may not occur as a remedy, as the State has the ability to bring future claims for relief;

-The Court cannot order the abatement of individual properties because that would exceed its jurisdiction -- "No remedy can include the inspection or abatement of individual properties because those properties were not part of the trial and verdict, and property owners were neither given notice nor permitted to participate in the proceedings," the memorandum says;

-Lynch failed to prove his right to injunctive relief to prevent future harm because the jury never decided the "predicate facts for mandatory injunctive relief by clear and convincing evidence," nor did Lynch "prove under the proper standard of proof that any harm from properly maintained lead paint is practically certain to occur in the future.";

-Lynch is improperly asking for relief for properties and environmental condition that were not part of the trial or verdict. These include playgrounds, soil, churches, schools, hospitals and public buildings. "Similarly," the memorandum continues, "no relief can include the abatement of intact, well-maintained lead paint because the AG conceded (and the legislature has declared) that such paint does not present an immediate hazard."; and

-Lynch's plan would clash with existing statutory and regulatory requirements, claiming it "disregards the comprehensive framework of lead-safe measures set by the General Assembly and designated governmental agencies. Examples can be found on page 33 of the memorandum.

"The AG and the Court must respect and enforce those policy decisions, regardless of whether the AG's views differ from the stated legislative public health policies," the companies wrote.

Earlier this month, Sherwin-Williams criticized Lynch's settlement with DuPont, which reached the agreement before the first trial began. The company moved to disgorge two portions of the monetary settlement.

First is a $2.5 million payment to a hospital in Boston. Sherwin-Williams says that it is part of the settlement because Motley Rice needs to satisfy a pledge to the hospital.

The second is an allotment of $1 million to Brown University, Lynch's alma mater.

"There is absolutely no basis in the law for an Attorney General to sue in the name of the State and then cut a deal whereby settlement money from the case is diverted to third parties, particularly an out-of-state third party," the motion says. "The Attorney General is required to deliver monetary recoveries to the State's General Fund.

"The Attorney General and his contingent fee counsel cannot bypass the General Assembly and the State's budget process and wheel and deal with State monetary recoveries."

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