AGs argue their right to file lead paint suits

John O'Brien Apr. 15, 2008, 4:00pm



PROVIDENCE, R.I. (Legal Newsline) - Initially being a day late proved to be no problem for the group of state attorneys general closely watching Rhode Island Attorney General Patrick Lynch's lawsuit against the former manufacturers of lead paint.

The Rhode Island Supreme Court recently accepted the amicus brief submitted by 16 state attorneys general, including Ohio's Marc Dann, despite having previously rejected it.

A clerical error caused the brief to be submitted a day late, but the Court granted the AGs motion for reconsideration, said Jim Gravelle of Dann's communications office.

"Lead pigment is silently poisoning hundreds of thousands, and perhaps millions, of children in states throughout the country every year," the brief says. "The attorneys general are greatly, and justifiably, concerned about this continuing danger."

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 a 2006 verdict against three companies, NL Industries, Millennium Holdings and Sherwin-Williams.

The state Supreme Court will hear oral arguments in the companies' appeal May 15. If the verdict is upheld, they may be on the hook for Lynch's proposed $2.4 billion abatement plan, but will not pay any compensatory or punitive damages.

Similar suits have failed in Wisconsin, Missouri and New Jersey. Sherwin-Williams attorney Charles Moellenberg blamed the Rhode Island loss on jury instructions given by Superior Court Judge Michael Silverstein.

The usage of public nuisance in lead paint cases has been the subject of great debate. The filing by the attorneys general defends Lynch's interpretation of the term.

"The extensive historical use of the public nuisance cause of action to abate public harms believes Defendants' claim that this type of lawsuit might displace products liability law," the brief says.

"In reality, products liability law and public nuisance law do not conflict but rather complement one another. Public nuisance suits are brought not to obtain damages as compensation, but to abate the nuisance and stop the ongoing here.

"Indeed, what the attorneys general advocate here is not an expansion of existing law, but the straightforward application of well-settled doctrine in light of current problems and scientific knowledge."

Joining Dann are: Vermont's William Sorrell; Maine's Steven Rowe; Arkansas' Dustin McDaniel; New Mexico's Gary King; Delaware's Beau Biden; Oklahoma's Drew Edmondson; Florida's Bill McCollum; Oregon's Hardy Myers; Guam's Alicia Limtiaco; Tennessee's Robert Cooper; Hawaii's Mark Bennett; Utah's Mark Shurtleff; Kentucky's Jack Conway; West Virginia's Darrell McGraw; and Nevada's Catherine Cortez Masto.

Former Iowa Attorney General Bonnie Campbell is on the other side than the current group of attorneys general. She's the spokesperson for Sherwin-Williams and Millennium Holdings.

"It is not uncommon for Attorneys General to argue, as they do in this brief, for an expansive view of their power to file lawsuits," Campbell said.

"However, what is puzzling is that this brief actually is at odds with the public nuisance laws of states whose Attorneys General signed the brief. For example, in Ohio, legislation has been enacted that explicitly mandates that public nuisance claim like the one pursued in Rhode Island must comport with the product liability laws of Ohio.

"When lead pigment used in paints was made more than a half-century ago it was a legal product. Hazards from deteriorating lead paint today are due to neglect by landlords who are responsible under Rhode Island law to keep their properties lead safe before renting to families with children."

The group says they are "entrusted to guard the public interest." Using dozens of example of case law, the attorneys general say public nuisance has long been used to punish corporations engaged in business activities that do more harm than good.

"Public nuisance requires interference with a common right," the brief says. "Where, as here, a state attorney general pleads public nuisance, he or she is seeking to vindicate that public right.

"There are some, but not many, conditions stemming from the distribution of a product that have a widespread and grave enough impact to rise to the level of public nuisance.

"Moreover, state attorneys general can be expected to exercise prosecutorial discretion in deciding which of even these limited conditions warrant denomination as a public nuisance and consequent legal action. Defendants' articulated fears of an assault on products liability law are, in short, grossly exaggerated."

The defendants, in addition to objecting to the public nuisance claim, feel they are only targeted because of their deep pockets. They think landlords who failed to maintain the paint on their buildings should bear some, if not all, responsibility.

Also, they say it can not be proven that it is their paint on certain buildings.

In an earlier interview with Legal Newsline, Campbell said attorneys general should realize how harmful lead paint suits can be to the companies and their workers.

Also, none of the companies manufactured lead paint after a federal ban in 1978.

"My perspective is that the public policy implications are just horrible," Campbell said. "What would cause a company in the future to do the right thing when public policy eliminates any incentive to do it."

Campbell knows she will have to be aware of other movements around the country if the appeal in Rhode Island is not successful. Those who signed their names to the amicus brief might be next to file.

Dann already has his own suit in Ohio federal court.

"No (state attorney general) is on my radar screen, but you never know," Campbell said. "The glass is very full -- I think -- in Rhode Island. I think we're going to win."

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