After nearly a decade, public nuisance issue finally brought before R.I. SC

John O'Brien May 15, 2008, 2:21pm


PROVIDENCE, R.I. (Legal Newsline) - Time might not run against the sovereign, but the clock is now ticking on Rhode Island Attorney General Patrick Lynch's historic lawsuit against the former manufacturers of lead paint.

The state's Supreme Court on Thursday heard arguments for and against the claim made by prominent plaintiffs law firm Motley Rice, on behalf of Lynch, that three paint companies should be on the hook for the removal of lead paint from the state's buildings.

Though five separate issues were discussed, the main event concerned the State's usage of the tort of public nuisance. Motley Rice used that type of claim to work around the tolled statute of limitations on a products liability claim.

Assistant Attorney General Neil Kelly quoted a Latin phrase embedded in the public nuisance law, which originated in England. Translated, it says, "Time does not run against the sovereign."

"It is still a viable maxim and part of the common law," he added.

Millennium Holdings, NL Industries and Sherwin-Williams were all found liable for creating a public nuisance in 2006 by a state Superior Court jury in a trial presided over by Judge Michael Silverstein.

The companies may be forced to fund Lynch's $2.4 billion abatement plan, and several other state attorneys general may file their own suits if Lynch's succeeds. Supreme Court spokesman Craig Berke said the "Court traditionally strives to publish all opinions from its current term by July 4 each year."

Similar suits have failed in Wisconsin, Missouri and New Jersey. NL Industries attorney John McFadyen said the public nuisance theory has failed six times in trying to prove the companies' actions were intentional.

"If you take something near and dear to my heart, even (Boston Red Sox shortstop) Julio Lugo is catching them better than that," he joked.

Lead paint was outlawed in 1978, and South Carolina-based Motley Rice, led by asbestos litigation giant Ron Motley, 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.

The trial resulted in a mistrial, but the second (filed by current Attorney General Patrick Lynch) in a 2006 verdict against three companies, NL Industries, Millennium Holdings and Sherwin-Williams.

Statistics released by the State show that instances of elevated blood-lead levels in children are diminishing.

The suit is being closely watched around the country. An amicus brief filed by 16 state attorneys general defended Rhode Island's suit, and Motley Rice attorney Jack McConnell told the Providence Journal that he has been approached by other states about filing similar actions.

The first of five portions of the hearing dealt with the companies' liability. The second concerned Lynch's denied request for compensatory damages, and the third discussed paint company ARCO being found not liable.

Lynch being found in contempt during the trial for statements made to the media was argued in the fourth, and the constitutionality of bringing the suit via outside counsel hired on a contingency fee finished the day.

Justice Maureen McKenna Goldberg recused herself from the case, while Chief Justice Frank Williams told all the parties that they performed well.

"This is what the public should see," he said.

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