DuPont paying up in Rhode Island lead paint case

John O'Brien Aug. 18, 2008, 1:26pm


PROVIDENCE, R.I. (Legal Newsline) - Industrial giant DuPont did not join its paint-making brethren in fighting Rhode Island's landmark lead lawsuit, and is now funding a cleanup program instead of basking in victory.

State Attorney General Patrick Lynch announced Monday that there is an open competition for the lead paint abatement of 600 housing units. DuPont agreed to the process in a 2005 settlement, expecting it would cost the company approximately $12 million.

"This is a milestone in our partnership with the Children's Health Forum because this project makes the DuPont agreement real," Lynch said.

"With the issuance of this (request for proposal), we begin the process of remediating homes harboring lead paint that have housed generations of families, and making them lead-safe for the families living in them now and in the future."

Lynch had crafted a $2.4 billion abatement plan to be paid by Sherwin-Williams, Millennium Holdings and NL Industries, the three former manufacturers of lead paint who were found liable for its presence as a result of a public nuisance complaint.

Instead, the state Supreme Court overturned the Superior Court verdict on July 1. Court costs are now being debated.

Lead paint was outlawed in 1978, and plaintiffs firm 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.

Low-income neighborhoods in Central Falls, Pawtucket, Providence and Woonsocket will be targeted during the cleanup.

Attorneys for Sherwin-Williams criticized the charitable donations to which DuPont agreed in the settlement.

One provision of the agreement had $2.5 million earmarked to pay Brigham and Women's Hospital in Boston. Sherwin-Williams says the money is used to satisfy a pledge made previously by Motley Rice.

"This contribution has no connection whatsoever to Rhode Island lead paint issues, and the Attorney General had admitted that he knew of no benefit that Rhode Island citizens will receive from this out-of-state contribution," a motion to value the settlement says.

The second is an allotment of $1 million to Brown University, Lynch's alma mater.

"There is absolutely no basis in the law for an Attorney General to sue in the name of the State and then cut a deal whereby settlement money from the case is diverted to third parties, particularly an out-of-state third party," the motion says. "The Attorney General is required to deliver monetary recoveries to the State's General Fund.

"The Attorney General and his contingent fee counsel cannot bypass the General Assembly and the State's budget process and wheel and deal with State monetary recoveries."

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