Motley Rice gripe appears in Providence paper

John O'Brien Aug. 19, 2008, 3:35pm


Ron Motley

PROVIDENCE, R.I. (Legal Newsline) - Seven weeks after a devastating loss before the Rhode Island Supreme Court, prominent plaintiffs firm Motley Rice is criticizing the Court's decision to side with the former makers of lead paint.

Fidelma Fitzpatrick and Bob and Jack McConnell did so in an editorial submitted to the Providence Journal. It was published Tuesday.

"(The Supreme Court's decision) let wrongdoers off the hook without any responsibility for the consequences of their actions," they wrote. "It simply defies any reasonable sense of justice to let wrongdoers - corporate or individual - walk away from a problem they helped create."

Sherwin-Williams, Millennium Holdings and NL Industries were found liable in 2006 for the presence of lead paint as a result of a public nuisance complaint crafted by Motley Rice, hired by the State of Rhode Island on a contingency fee.

On July 1, the state Supreme Court unanimously overturned the Superior Court verdict. 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 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, 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.

Fitzpatrick 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.

Motley Rice's Tuesday editorial quoted Abraham Lincoln, Martin Luther King Jr. and Saint Augustine.

Who is to blame for the continued presence of lead paint is a main issue in the debate.

"Landlords are responsible for maintaining a home safe from lead, homeowners are responsible for keeping their kids safe, taxpayers are responsible for paying medical expenses and abatement costs of lead," Motley Rice wrote.

"Yet the corporations that started this public-health crisis bear no responsibility under the Supreme Court's opinion. They got away scot-free. Justice was not served."

Quoting Lincoln, they added, "You cannot escape the responsibility of tomorrow by evading it today."

After claiming lead poisoning is prevalent (one study shows it is at a 10-year low in the state), Motley Rice said the Supreme Court decision affects the least powerful in the state.

"Rev. Martin Luther King Jr. taught us that 'injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.'

"The Supreme Court's closing of the door on a just solution to their problem is a great injustice that affects us all."

Lynch's solution to the problem was a $2.4 billion abatement plan to be funded by the three companies. Motley Rice said they had more than $3 billion of insurance to help them pay.

The firm also criticized the amount of money the companies spent on a defense.

"The Supreme Court said that their 'hearts go out to those children whose lives forever have been changed by the poisonous presence of lead,'" Motley Rice wrote, "but they should be reminded of the admonition from Saint Augustine, who said, 'Charity is no substitute for justice withheld.'"

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