Court costs debated in landmark lead paint suit

John O'Brien Aug. 8, 2008, 1:42pm


PROVIDENCE, R.I. (Legal Newsline) - Victorious after a nine-year battle, he defendants in Rhode Island's landmark case against the former manufacturers of lead-based paint say they should not have to pay the court costs they incurred.

Sherwin-Williams, NL Industries, ConAgra Grocery Products and Millennium Holdings filed a motion with Rhode Island Superior Court Judge Michael Silverstein July 24 asking that the State of Rhode Island or its contingency fee counsel, Motley Rice, pay its court costs -- not attorneys fees.

It's a similar motion to the one Motley Rice filed after its 2006 Superior Court victory that was reversed July 1 by the state Supreme Court. The defendants also want to be reimbursed for the more than $200,000 they spent on co-examiners who crafted an abatement process (estimated at $2.4 billion).

"The State understood from the outset that in the event of reversal, it could be asked to compensate the co-examiners and their assistants for the work it advocated they undertake," the defendants wrote, noting they had moved to stay the appointment until the Supreme Court ruled on the case.

"It was well within the State's discretion to agree to a temporary halt to proceedings after the verdict until such time as the Supreme Court decided the appeal. Instead, the State elected to continue.

"A consequence of its advocacy was that certain costs and fees were incurred that the State (or its counsel) should now rightfully bear."

Lead paint was outlawed in 1978, and Motley Rice convinced former Rhode Island Attorney General Sheldon Whitehouse to hire it on a contingency fee to bring the first state-backed case over the issue in 1999.

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

After the mistrial and while Whitehouse prepared to leave office in 2002, Motley Rice's Jack McConnell, of the firm's Providence office, contributed $1,000 to Lynch's election efforts.

In Lynch's next campaign, McConnell gave him $2,000. In between, in Lynch's non-election year of 2004, McConnell still gave him $2,000.

An attorney at Motley Rice had thought of using a public nuisance claim against the companies as a way around certain defenses that could have stonewalled a products liability claim, like the tolled statute of limitations.

Similar suits have failed in Wisconsin, Missouri, Ohio and New Jersey.

The State and Motley Rice asked for approximately $2 million after the Superior Court decision. The defendants say they are unsure what the tab is for their court costs.

They do know, however, that they paid $218,270.64 to the co-examiners and their assistants, $15,554.75 in transcript fees and $8,295.82 in conference calls.

Lynch called the request "astounding."

"While there is no question that the defendants have every right to challenge the case and have availed themselves of that right at every opportunity, it's astounding that the lead paint companies involved in the litigation have the audacity to claim that they are entitled to costs associated with the $100-million defense they mounted, and the more than 100 high-priced lawyers they used to avoid responsibility for the toxic poisoning of Rhode Island's children," Lynch said.

"The Supreme Court, on five occasions, ruled against the defendants who chose to litigate this case through to the very end, and only then challenging the State's public nuisance claim."

A hearing on the motions is set for Aug. 15.

From Legal Newsline: Reach John O'Brien by e-mail at

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