R.I. SC sets appeal protocol in lead paint case

By John O'Brien | May 22, 2007


PROVIDENCE, R.I. - If Rhode Island's landlords were as good at housekeeping as the state's Supreme Court is, maybe there would be no lead paint squabble on the docket there.

Instead, the Court handed down Tuesday its protocol for the appeal of three paint companies found liable for creating a public nuisance by manufacturing lead-based paint before it was banned in 1978. The landlords who never cleaned the lead paint off their buildings are not named as defendants by the plaintiff, the State of Rhode Island.

The companies, NL Industries, Sherwin Williams and Millennium Holdings, asked Superior Court Judge Michael Silverstein for a stay in the removal planning process that is estimated will cost billions until their appeal could be heard in the state's Supreme Court, but he denied it.

After a May 1 meeting with attorneys for both sides, Supreme Court Chief Justice Frank Williams worked out the protocol, "which settles important housekeeping matters, provides for additional Organizing Conferences and establishes a five-track procedure for the briefing of all pending appeals and cross appeals."

It is the first state-backed lawsuit over the topic, and experts say it was filed as a public nuisance claim instead of a products liability to limit the amount of defenses the paint companies could use. For instance, a products liability claim would be barred by the statute of limitations, while there is no statute on public nuisance claims.

Silverstein said there is "little likelihood" the paint companies will succeed in the Supreme Court.

The suit, now under control of Attorney General Patrick Lynch, was introduced by South Carolina-based plaintiffs firm Motley Rice, and Ohio Attorney General Marc Dann recently followed Rhode Island's lead, filing his own nuisance case against the companies. Several municipalities also have similar cases.

"(Dann's lawsuit) is the brainchild of this formula, which was systematically concocted to use public nuisance as its legal argument because there are not a lot of statutes," said Ryan Augsburger of the Ohio Manufacturers' Association.

"Motley Rice contacts the local law firm, which goes to the Attorney General and says, 'We can get you money and get headlines by going after polluting companies.' How is he going to turn that down?"

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