On biggest battleground, public nuisance beaten back

John O'Brien Jul. 1, 2008, 1:53pm



PROVIDENCE, R.I. (Legal Newsline) - If a judge or jury ruled companies were not responsible for the effects of the lead paint they manufactured before it was outlawed, defense attorneys always had to restrain their celebrations - until Tuesday.

That's when counsel for three companies -- Sherwin-Williams, NL Industries and Millennium Holdings -- got the outcome they'd been after since 2006. The Rhode Island Supreme Court unanimously overturned the biggest win against them.

Now, the future of the public nuisance theory used by the State of Rhode Island and contingency-fee counsel Motley Rice may be as grim as it has ever been.

"There are now three supreme courts - Missouri, New Jersey and Rhode Island supreme courts - that have addressed lead litigation in the context of public nuisance, and each one of them, in carefully crafted decisions, said that the effort to take a products liability claim and turn it into a public nuisance claim has no legal or factual basis," said Mike Nilan, an attorney with Minneapolis' Halleland Lewis Nilan & Johnson who represented Millennium Holdings.

And because of that, Nilan - as well as the companies' officers, employees and shareholders - can breathe easier.

Considering 16 state attorneys general filed an amicus brief supporting Rhode Island Attorney General Patrick Lynch, it is easy to assume more suits would have been filed if the outcome had been different.

"It's another chapter we're closing the book on," said Charles Moellenberg, a Pittsburgh attorney with Jones Day who represented Sherwin-Williams.

"The Court went out of its way to cite and quote supreme courts in four different states that rejected the theory. It quoted from legal treatises and a number of legal commentators and law reviews. Its decision is well-grounded and right on the mark, when they say the public nuisance theory has no legs under traditional common law in the U.S."

Lead paint was outlawed in 1978, and 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 bringing a claim of public nuisance to work around certain defenses, like the tolled statute of limitations.

The first trial resulted in a mistrial, the second (filed by Lynch) in a 2006 verdict against the three companies. It was the longest civil trial in state history.

Very few public nuisance suits remain. The State of Ohio, the City of Columbus and the County of Santa Clara, Calif., each have their own cases. Ohio's was filed by disgraced former Attorney General Marc Dann.

A state judge has already dismissed the City of Toledo's. Moellenberg said the public nuisance theory can't survive an examination in Ohio.

"(T)he plaintiffs (in Toledo) are represented by many of the same attorneys that brought the Columbus lawsuit, and they didn't even appeal," Moellenberg said.

The Santa Clara suit, meanwhile, has been delayed over arguments about the contingency fee agreement in which the county entered. Plaintiffs are appealing a Superior Court decision to the state's Supreme Court.

Moellenberg and Nilan, with the Rhode Island victory in their hands, probably won't be losing too much sleep.

"I think this will go a long way in curtailing additional public nuisance suits," Nilan said.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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