Schedule produced in lead paint appeal

John O'Brien Jan. 2, 2008, 4:37pm

PROVIDENCE, R.I. - Ten days after meeting with Rhode Island Chief Justice Frank Williams, the two sides in the State's landmark suit against paint manufacturers received their schedule for the appeal.

Deadlines were set for the five issues being appealed, most notably the liability of three companies who formerly made lead-based paint before it was outlawed in 1978. Oral arguments on all issues are scheduled for May 15.

Three of the issues will share the same schedule. Those are the appeal of Millennium Holdings, NL Industries and Sherwin-Williams (they were found liable for creating a public nuisance by a Superior Court jury), and the appeals of Attorney General Patrick Lynch. He was held in contempt for publicly made comments and wants compensatory damages awarded against the companies.

Opening briefs and supporting amici are due Jan. 31, responsive briefs and supporting amici 45 days later and reply briefs on April 16.

After a mistrial, Lynch and plaintiffs firm Motley Rice filed the suit again, leading to the 2006 decision. Motley Rice was hired on a contingency fee basis, one of the issues the paint companies will raise before the Court. A court in California ruled last year that several counties and municipalities could not hire a private firm to pursue a public nuisance case on a contingency fee.

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

Motley Rice introduced the idea for a public nuisance suit to former Attorney General Shelden Whitehouse, who filed the nation's first state-powered suit against the industry.

Using a public nuisance claim provided 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.

The fifth issue to be decided concerns ARCO, which was not found liable. The three companies that were are currently battling Lynch over Lynch's proposed $2.4 billion abatement plan.

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