R.I. SC receives lead paint arguments

John O'Brien Jan. 31, 2008, 4:59pm


PROVIDENCE, R.I. - Each of the parties in the landmark appeal of a public nuisance lawsuit brought over lead-based paint submitted their arguments to the Rhode Island Supreme Court Thursday.

Three paint companies each tackled a different legal issue in their respective briefs, and Attorney General Patrick Lynch claimed he should not have been held in contempt during and compensatory damages should have been awarded after the controversial trial that resulted in the companies' liability.

The Supreme Court will hear oral arguments May 8. If the verdict is upheld, the companies may be on the hook for Lynch's proposed $2.4 billion abatement plan, but will not pay any compensatory or punitive damages.

"This case stands by itself - unique in its theory of liability, seismic in its potential impact," the brief filed by NL Industries says.

"Departing radically from this Court's precedents, the trial court instructed the jury that it could impose absolute no-fault liability for any harms in Rhode Island connected with lead paint or lead pigment sold lawfully in the United States at any time from 30-130 years ago, on any member of the industry who sold pigments anywhere in the United States."

NL, Millennium Holdings and Sherwin-Williams all faltered in Rhode Island despite the fact similar suits have failed in California, Wisconsin, Missouri and New Jersey. Sherwin-Williams attorney Charles Moellenberg blamed the jury instructions given by Superior Court Judge Michael Silverstein.

"The trial court rulings were so aberrational that no other state could fit its law into what happened in Rhode Island," said Moellenberg, an attorney with Pittsburgh's Jones Day.

"It was remarkable. The State didn't have to prove the product existed in Rhode Island today and the jury didn't have to think they did anything wrong, the two foundations of any type of tort claims.

"They ended up trying a hypothetical case."

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 using a claim of public nuisance as a way around certain defenses, like the tolled statute of limitations.

The first trial resulted in a mistrial, the second in the 2006 verdict against the three companies.

NL Industries' brief focuses on the issue of public nuisance, claiming:

"Public nuisance has traditionally been confined to site-specific conditions that impinge on publicly-shared rights: the hazardous waste dump or the tannery beside a stream. The owner of the site was the responsible party, not the manufacturer of the chemicals used to tan the leathers.

"Here, the State convinced the trial court to eliminate the traditional requirements of public nuisance liability (specific physical site, control of the hazard, and invasion of a public space) and to apply the result to sales of product components without any of the legal limitations previously recognized in this Court's products liability precedents."

Sherwin-Williams' brief addressed the issues of separation of powers, constitutional error and trial error.

"This suit and the legislative approach are very different universes about to collide," it says. "Based on the recognition that well-maintained properties are not dangerous, the Lead Poisoning Prevention Act places the responsibility for lead remediation on the property owners who have control over the condition of the paint and creates incentives to encourage owners to maintain their properties.

"A jury of six people was encouraged to issue a verdict, and Plaintiff insists that the jury has issued a verdict, tantamount to new statewide policies for public health and manufacturer liability. The common law is not filling a gap; it is trespassing on the legislative domain and creating conflicting rules."

The brief filed by Millennium Holdings takes on the issue of causation.

"Broader than enterprise theory, conspiracy theory or the market share theory that this Court has already rejected, Plaintiff's theory of causation is in essence an 'industry' theory," it says.

"Reduced to its core, the theory espoused by Plaintiff and adopted by the trial court holds that if a plaintiff proves that a company manufactured, promoted or sold lead pigments anywhere in this nation for a brief period of Rhode Island's history, and if some of its pigments might have made it to Rhode Island long ago, then that company, or its successor, can be held responsible for all lead pigments in paints and coatings in or on buildings in Rhode Island.

"No judgment from a court of law can stand upon such a theory, or upon such evidence."

But Lynch feels that judgment should be affirmed, and the companies should have to pay for more than just the cost of clean-up. The State sought $26 million during the trial.

"(T)he jury heard evidence of the substantive work of the various State programs and case management services that combat the public nuisance as well as evidence of the process used to submit Medicaid claims for services to children poisoned from lead in paint," Lynch's brief says.

"The jury also heard evidence of the compensable damages from the expenditures by the (Department of Environmental Management) that was introduced and remains part of this record."

Silverstein fined Lynch $5,000 and held him in civil contempt for statements made to a reporter about the case. Lynch says his entire statement was taken out of context, and he was not referencing any of the defendants.

He says a reporter confronted him with false and defamatory statements about his staff and attributed them to defense counsel.

"Confronted by these false allegations of unethical conduct leveled against public servants in a public endeavor, and with respect for the Court, its orders and its processes," his brief says, "Attorney General Lynch declined to engage in a substantive debate with the reporter. He phrased his refusal to engage as follows:

"'What is printed in the paper that I will not respond to is the spinning and twisting of evidence and comment like that you just attached to those people.'"

The report claimed Lynch called the defense counsel "those who would twist and spin the facts."

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