Judgment officially entered in lead paint case, companies appeal

By John O'Brien | Mar 16, 2007


PROVIDENCE, R.I. - Two paint companies found guilty of creating a public nuisance filed Friday in Rhode Island Superior Court their appeals to the state's Supreme Court.

On the same day Superior Court Judge Michael Silverstein entered judgment in favor of the State in Attorney General Patrick Lynch's case, Sherwin Williams Co. and NL Industries filed in Superior Court their notices of appeal to the Supreme Court.

Sherwin Williams' can be found here, while NL Industries' can be found here.

Another defendant, Millennium Holdings, did not file a notice. The three companies were found guilty by a six-member jury on Feb. 22, 2006. Silverstein last month denied their post-trial motions.

"This is a historic day in our continuing fight to protect Rhode Island's children from the harmful consequences of lead poisoning," Lynch said. "For too long, Rhode Island's taxpayers have shouldered the burden of what a jury unanimously found to be a public nuisance from lead in paint."

Lynch filed the case as a public nuisance complaint in order to prevent the defendants from using certain products liability defenses, New Jersey attorney David Nieporent said in this earlier LegalNewsline story.

Nationally known plaintiffs firm Motley Rice helped Lynch file the suit. Estimates say cleanup could cost the three companies well over $1 billion.

William Childs, an assistant professor of law at Western New England College School of Law, said last month that the companies have good reason to appeal and "decent legal arguments as to why the nuisance law shouldn't apply to them."

Moreover, he says a case as high-profile as this one brought on by an attorney general warrants a fight, since other attorneys general may take Rhode Island's lead.

"You have to fight it every step of the way or you're going to have 50 of them, which might happen anyway," said Childs, who graduated from the University of Texas School of Law and worked in mass tort and intellectual property litigation at Williams & Connolly in Washington, D.C. "You gotta have an appeal. You can't just suck it up and pay off this thing when the exposure is so great."

Rhode Island's first lead paint case ended in 2002 in a mistrial, but the state filed again. Other New England attorneys general like Connecticut's Richard Blumenthal and Vermont's William Sorrell, who claims Vermont children will lose $80 million in earning power over their lifetimes because of lead paint, have been keeping close tabs on the situation.

Childs said that they are probably waiting for Rhode Island's Supreme Court to decide on the matter before they act.

When asked about it at the National Association of Attorneys General spring meeting, Blumenthal said, "We generally make our own decisions" and that the lead-paint issue was not on his "front burner."

The companies argue that Lynch is misrepresenting the spread of lead poisoning and point to a decline in reported cases. They also say landlords who failed to maintain their properties were more responsible than they are, considering they stopped making the paint decades ago.

Cities such as St. Louis, Chicago, Milwaukee and Cincinnati have filed lead paint lawsuits. Recently, Ohio Gov. Ted Strickland vetoed a bill that would have prevented nuisance lawsuits against lead paint manufacturers while putting a $5,000 cap on non-economic damages in consumer protection cases. Ohio Attorney General Marc Dann publicly commended Strickland on the veto.

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