R.I. SC could force State to pay up

John O'Brien Jul. 19, 2010, 12:00pm


PROVIDENCE, R.I. (Legal Newsline) - The companies that successfully defended themselves against the state of Rhode Island still want the costs of doing so paid for.

The Rhode Island Supreme Court ruled in 2008 that Sherwin-Williams, NL Industries and Millennium Holdings were not liable for the cost of cleaning up lead paint in the state, and now those companies want the State to pay for the cost of defending themselves.

State Superior Court Judge Michael Silverstein ruled for the State in May. The companies appealed to the state Supreme Court on Friday.

"Although the State did not ultimately prevail in this action, its claim was neither frivolous nor made in bad faith," Silverstein wrote. "In Rhode Island, the attorney general has a 'common law duty to represent the public interest...'

"The court has also considered the substantial benefits that have been conferred on both the public and the prevailing parties. This litigation has brought significant attention to the serious harms of lead poisoning in Rhode Island, leading to an increased awareness in both the public and state officials."

The State has already been ordered to pay the costs of co-examiners hired to help with a $2.4 billion abatement plan before the state Supreme Court overturned state Attorney General Patrick Lynch's initial victory.

"The Sherwin Williams Company believes the Attorney General, just like every other losing party, is responsible to pay litigation costs, not including legal fees, when he chooses to sue," Sherwin-Williams attorney Charles Moellenberg said in May.

"That's especially true when the state Supreme Court said that the Attorney General's lawsuit should have been dismissed at the outset nine years ago."

Lead paint was outlawed in 1978, and plaintiffs 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 Lynch) in a 2006 verdict against 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.

McConnell, who has been nominated for a federal judgeship in Rhode Island, continued to donate heavily to Whitehouse, now a U.S. Senator who recommended him for a federal judgeship.

The firm had decided to use 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.

The state Supreme Court did not buy the argument, overturning the verdict in 2008.

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

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State of Rhode Island
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